Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Graham's Beardtongue (>Penstemon grahamii) and White River Beardtongue (Penstemon scariosus var. albifluvis), 47831-47858 [2013-18335]

Download as PDF Vol. 78 Tuesday, No. 151 August 6, 2013 Part II Department of the Interior tkelley on DSK3SPTVN1PROD with PROPOSALS2 Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Graham’s Beardtongue (Penstemon grahamii) and White River Beardtongue (Penstemon scariosus var. albifluvis); Proposed Rule VerDate Mar<15>2010 19:56 Aug 05, 2013 Jkt 229001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\06AUP2.SGM 06AUP2 47832 Federal Register / Vol. 78, No. 151 / Tuesday, August 6, 2013 / Proposed Rules DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R6–ES–2013–0082; 4500030113] RIN 1018–AZ61 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Graham’s Beardtongue (≤ Penstemon grahamii) and White River Beardtongue (Penstemon scariosus var. albifluvis) Fish and Wildlife Service, Interior. ACTION: Proposed rule. AGENCY: We, the U.S. Fish and Wildlife Service, propose to designate critical habitat for Graham’s beardtongue (Penstemon grahamii) and White River beardtongue (Penstemon scariosus var. albifluvis) under the Endangered Species Act of 1973, as amended (Act). We are proposing approximately 27,502 hectares (67,959 acres) for designation as critical habitat for Graham’s beardtongue in Duchesne and Uintah Counties in Utah and Rio Blanco County in Colorado. We are proposing approximately 6,036 hectares (14,914 acres) for designation as critical habitat for White River beardtongue in Duchesne and Uintah Counties in Utah and Rio Blanco County in Colorado. If we finalize this rule as proposed, it will extend the Act’s protections to these species’ critical habitats. DATES: We will accept comments received or postmarked on or before October 7, 2013. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES section, below) must be received by 11:59 p.m. Eastern Time on the closing date. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by September 20, 2013. ADDRESSES: You may submit comments by one of the following methods: (1) Electronically: Go to the Federal eRulemaking Portal: https:// www.regulations.gov. Search for Docket No. FWS–R6–ES–2013–0082, 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 tkelley on DSK3SPTVN1PROD with PROPOSALS2 SUMMARY: VerDate Mar<15>2010 19:56 Aug 05, 2013 Jkt 229001 Processing, Attn: FWS–R6–ES–2013– 0082; 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 Information Requested section below for more information). The coordinates or plot points or both from which the maps are generated are included in the administrative record for this critical habitat designation and are available at https://www.fws.gov/utah fieldoffice under Latest News, https:// www.regulations.gov at Docket No. FWS–R6–ES–2013–0082, and at the Utah Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Any additional tools or supporting information that we may develop for this critical habitat designation 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: Larry Crist, Field Supervisor, U.S. Fish and Wildlife Service, Utah Ecological Services Field Office, 2369 West Orton Circle, Suite 50, West Valley City, UT 84119; by telephone at 801–975–3330; or by facsimile at 801–975–3331. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800–877–8339. SUPPLEMENTARY INFORMATION: Executive Summary Why we need to publish a rule. This is a proposed rule to designate critical habitat for two plant taxa, Graham’s beardtongue (Penstemon grahamii) and White River beardtongue (P. scariosus var. albifluvis), which are proposed as threatened species under the Endangered Species Act (Act). A proposed rule to list Graham’s beardtongue and White River beardtongue as threatened species is published elsewhere in today’s Federal Register. Under the Act, any species that is determined to be an endangered or threatened species requires critical habitat to be designated, to the maximum extent prudent and determinable. Designations and revisions of critical habitat can only be completed by issuing a rule. The basis for our action. Under the Endangered Species Act, any species that is determined to be an endangered or threatened species shall, to the PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 maximum extent prudent and determinable, have habitat designated that is considered to be critical habitat. 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 she determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless she 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. We are preparing an economic analysis of the proposed designations of critical habitat. In order to consider economic impacts, we are preparing an analysis of the economic impacts of the proposed critical habitat designations and related factors. We will announce the availability of the draft economic analysis as soon as it is completed, at which time we will seek additional public review and comment. We will seek peer review. We are seeking comments from independent specialists to ensure that our critical habitat proposal is based on scientifically sound data and analyses. We have invited these peer reviewers to comment on our specific assumptions and conclusions in this critical habitat proposal. Because we will consider all comments and information we receive during the comment period, our final rule may differ from this proposal. Information Requested We intend that any final action resulting from this proposed rule will be based on the best scientific data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned government agencies, the scientific community, industry, or any other interested party concerning this proposed rule. We particularly seek comments regarding: (1) The reasons why we should or should not designate habitat as ‘‘critical habitat’’ under section 4 of the 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. (2) Specific information on: E:\FR\FM\06AUP2.SGM 06AUP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 Federal Register / Vol. 78, No. 151 / Tuesday, August 6, 2013 / Proposed Rules (a) The amount and distribution of Graham’s beardtongue and White River beardtongue occupied and suitable habitat; (b) Areas that were occupied at the time of listing (or are currently occupied) and that contain features essential to the conservation of the species that should be included in the designation and why; (c) What areas not occupied at the time of listing are essential for the conservation of the species and why; (d) What may constitute ‘‘physical or biological features essential to the conservation of the species,’’ within the geographical range currently occupied by the species; (e) Where the ‘‘physical or biological features essential to the conservation of the species,’’ features are currently found; (f) Information indicating how these species respond to natural and anthropogenic disturbances; and (g) 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. (3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat. (4) Information on the projected and reasonably likely impacts of climate change on Graham’s and White River beardtongues and proposed critical habitat. (5) 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. (6) 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. (7) 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. (8) The likelihood of adverse social reactions to the designation of critical habitat and how the consequences of such reactions, if likely to occur, would relate to the conservation and regulatory VerDate Mar<15>2010 19:56 Aug 05, 2013 Jkt 229001 benefits of the proposed critical habitat designation. Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include. 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)(2) of the Act directs that critical habitat designations be made based on the best scientific data available and after consideration of economic and other relevant impacts. 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. We will post your entire comment— including your personal identifying information—on https:// www.regulations.gov. You may request at the top of your document that we withhold personal information such as your street address, phone number, or email address from public review; however, we cannot guarantee that we will be able to do so. 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, Utah Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Previous Federal Actions Elsewhere in today’s Federal Register, we propose to list Graham’s beardtongue and White River beardtongue as threatened species under the Act. Please see this proposed listing rule for a complete history of previous Federal actions for these two plants. Background We intend to discuss only those topics directly relevant to the designation of critical habitat in this proposed rule. For more information on Graham’s beardtongue and White River beardtongue, refer to the proposed rule to list these species, also published in today’s Federal Register. 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 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 47833 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 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 geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or E:\FR\FM\06AUP2.SGM 06AUP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 47834 Federal Register / Vol. 78, No. 151 / Tuesday, August 6, 2013 / Proposed Rules 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 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 are those specific elements of the physical or biological features that provide for a species’ life-history processes and 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 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. 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 geographical 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(b)(2) 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 determine which areas should be designated as critical habitat, VerDate Mar<15>2010 19:56 Aug 05, 2013 Jkt 229001 our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, or other unpublished materials and expert opinion or personal knowledge. 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. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will 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) section 9 of the Act’s prohibitions on taking any individual of the species, including taking caused by actions that affect habitat. 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 will 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 will 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. Prudency Determination Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species. Our regulations (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 human activity, and PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 identification of critical habitat can be expected to increase the degree of threat to the species, or (2) Such designation of critical habitat would not be beneficial to the species. There is no imminent threat of take attributed to collection or vandalism for either of these species, and identification and mapping of critical habitat is not expected to initiate any such threat. 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. Here, the potential benefits of designation include: (1) Triggering consultation under section 7 of the Act, for actions in which there may be a Federal nexus where it would not otherwise occur because, for example, the critical habitat has become unoccupied or the occupancy is in question; (2) focusing conservation activities on the species’ most essential habitat features and areas; and (3) providing educational benefits to State or County governments or private entities. Therefore, because we determined that the designation of critical habitat will not likely increase the degree of threat to the species and may provide some measure of benefit, we find that designation of critical habitat is prudent for Graham’s beardtongue and White River beardtongue. Critical Habitat Determinability Having determined that designation is prudent, under section 4(a)(3) of the Act we must find whether critical habitat for these two species is determinable. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist: (i) Information sufficient to perform required analyses of the impacts of the designation is lacking, or (ii) The biological needs of the species are not sufficiently well known to permit identification of an area as critical habitat. When critical habitat is not determinable, the Act allows the Service an additional year to publish a critical habitat designation (16 U.S.C. 1533(b)(6)(C)(ii)). We reviewed the available information pertaining to the biological needs of the species and habitat characteristics where these species are located. This and other information represent the best scientific data available and led us to conclude that the designation of critical habitat is determinable for Graham’s beardtongue and White River beardtongue. E:\FR\FM\06AUP2.SGM 06AUP2 Federal Register / Vol. 78, No. 151 / Tuesday, August 6, 2013 / Proposed Rules 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 geographical 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 historic geographical and ecological distributions of a species. We derive the specific physical and biological features essential for Graham’s beardtongue and White River beardtongue from studies of these species’ habitat, ecology, and life history as described in our proposal to list the species as threatened published elsewhere in today’s Federal Register. Graham’s Beardtongue We determined that Graham’s beardtongue requires the physical and biological features described below. tkelley on DSK3SPTVN1PROD with PROPOSALS2 Space for Individual and Population Growth and for Normal Behavior Plant Community. Graham’s beardtongue is associated with a suite of species similarly adapted to xeric growing conditions on highly basic calcareous (containing calcium carbonate) shale soils (for more discussion, see ‘‘Soils’’ below). The vascular plant species most frequently associated with Graham’s beardtongue include saline wild-rye (Leymus salina), spiny greasebush (Glossopetalon spinescens var. meionandra), Utah juniper (Juniperus osteosperma), shadscale saltbush (Atriplex ˜ confertifolia), twoneedle pinon (Pinus edulis), mountain thistle (Cirsium scopulorum), ephedra buckwheat (Eriogonum ephedroides), sulfur flower buckwheat (Eriogonum umbellatum), Colorado feverfew (Parthenium ligulatum), and Fremont’s wildbuckwheat (Eriogonum corymbosum) (UNHP 2013, entire). Graham’s beardtongue sites at higher elevation ˜ can be found within sparse pinon- VerDate Mar<15>2010 19:56 Aug 05, 2013 Jkt 229001 juniper woodland dominated by Utah ˜ juniper and pinon pine. Graham’s beardtongue sites at lower elevations are occasionally within a sparse desert shrubland dominated by shadscale saltbush. Within these plant communities, Graham’s beardtongue is found in open or sparsely vegetated, raw shale areas. Dwarf shrubs and cushion-like herbs make up the distinctive plant community type occurring on these calcareous shale sites. The following species are in part co-occurring with Graham’s beardtongue and are similarly endemic and totally restricted to the Green River Geologic Formation: Dragon milkvetch (Astragalus lutosus), oilshale columbine (Aquilegia barnebyi), Barneby’s thistle (Cirsium barnebyi), oilshale cryptantha (Cryptantha barnebyi), Graham’s cryptantha (Cryptantha grahamii), Rollins’ cryptantha (Cryptantha rollinsii), ephedra buckwheat, and White River beardtongue. Intact native plant communities immediately adjacent to Graham’s beardtongue shale habitat are also important to prevent the encroachment of invasive weeds into this habitat (Service 2012b, entire). The long-term viability of Graham’s beardtongue is dependent on having a diverse plant community that supports pollinators, even if that plant community is sparse (see Reproduction, below). Flowering in Graham’s beardtongue can be highly unreliable year-to-year, so pollinators of this species are likely to rely on nearby plants as a food source in years when Graham’s beardtongue does not flower very much (Dodge and Yates 2008, p. 30). Therefore, based on the information above, we identify sparsely vegetated, barren shales with a diverse plant community dominated by the dwarf shrubs, cushion-like plants, and endemic species listed above to be a physical or biological feature for this species. Slope and Topography. Throughout this proposed rule, we will refer to points, which are data that represent a physical location where one or more plants were observed on the ground. Point data are usually collected by GPS and stored as a ‘‘record’’ in a geographic information system (GIS) database. We mapped all plant points and grouped them into populations following standardized methods used by the national network of Natural Heritage Programs (see the proposed listing rule published elsewhere in today’s Federal Register). About a third of all known Graham’s beardtongue point locations in our files grow on slopes that are 10 degrees or less, with an average slope PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 47835 across all known points of 17.6 degrees (Service 2013, p. 2). Graham’s beardtongue grows on slopes ranging from 0 to 73 degrees, although occurrences on steeper slopes are rare. Ninety-five percent of the known points are on slopes that are 40 degrees or less (GIS analysis 2013). Individuals of Graham’s beardtongue usually grow on southwest-facing exposures (GIS analysis 2013). Therefore, we identify southwest-facing slopes of less than 40 degrees to be a physical or biological feature for this species. Food, Water, Air, Light, Minerals, or Other Nutritional or Physiological Requirements Soils and Geology. Graham’s beardtongue is found on highly basic soils derived from strata of the Green River Formation (Shultz and Mutz 1979, p. 40; Neese and Smith 1982, p. 64). These soils provide the root microhabitat essential for the species’ growth and reproduction. These soils are very shallow with virtually no soil horizon development. The little soil above the consolidated calcareous shale rock of its parent material is usually very light clay derived from thinly bedded shale. The soil surface is covered with shale channers (thin, flat fragments up to 15 cm (6 in) long, usually less than 5 cm (2 in) across), underlain with larger shale fragments to a depth of 5 to 10 cm (2 to 4 in). The shale channers usually weather to a light tan color. Freshly broken channers exhibit a very dark brown interior due to the high organic content of the kerogen (the hydrocarbons from plant material that are the main source of oil in oil shales). The majority of Graham’s beardtongue populations and those with the largest numbers of plants occur on the oilshale-rich Mahogany ledge, which is the outcrop of the richest oil shale bed of the Parachute Creek Member of the Green River Formation (Cashion 1967, p. 1; Shultz and Mutz 1979, p. 40). Water can collect (called ‘‘perching’’) on the Mahogany zone, and Graham’s beardtongue may be adapted to access water through this natural process (Shultz and Mutz 1979, p. 40; Service 2012b, entire). The remaining occurrences are associated with upper members of the Green River Formation as described by Weiss and Witkind (Weiss et al. 1990, entire; Remy 1992, p. BB18). Therefore, based on the information above, we identify the upper Green River Formation oil shale soils as a physical or biological feature for this species. Climate. Graham’s beardtongue is adapted to a cold desert climate, with E:\FR\FM\06AUP2.SGM 06AUP2 47836 Federal Register / Vol. 78, No. 151 / Tuesday, August 6, 2013 / Proposed Rules most precipitation occurring in the spring and fall, and snow cover from December through March (Western Regional Climate Center 2013, entire). Winter snow cover may be important for this species by preventing severe frost damage to plants during the coldest months (Bannister et al. 2005, pp. 250– 1). Temperatures can be extreme, with average summer highs around 34 degrees Celsius (°C) (93 degrees Fahrenheit (°F)) and average winter lows around ¥14 °C (7 °F) (Western Regional Climate Center 2013, entire). Graham’s beardtongue seeds need at least 45 to 90 consecutive days at less than 4 °C (40 °F) in order to germinate (Wilcox et al. undated, p. 5). Average annual precipitation across the range of this species varies from 15 to 30 cm (6 to 12 in) (GIS analysis 2013). Because Graham’s beardtongue evolved under these climatic conditions, we identify suitable precipitation—15 to 30 cm (6 to 12 in) with most precipitation in spring and fall and snow cover from December through March—and suitable temperatures—average winter low temperature of ¥14 °C (7 °F) and average summer high of 34 °C (93 (°F)) with at least 45 to 90 consecutive days less than 4 °C (40 °F)—as physical or biological features for this plant. These climatic conditions are likely influenced, in part, by elevation. tkelley on DSK3SPTVN1PROD with PROPOSALS2 Cover or Shelter Seeds and seedlings of Graham’s beardtongue require the right microclimate for germination and establishment. However, we do not know the specific requirements of Graham’s beardtongue for suitable microsites, nor are these features likely to be manageable as a physical or biological feature for this species. Suitable conditions for seed germination and seedling establishment are further described in the Plant Community and Soils and Geology sections, above. Sites for Breeding, Reproduction, or Rearing (or Development) of Offspring Reproduction. Graham’s beardtongue can produce seeds through selfpollination, but is much more reproductively successful when it is cross-pollinated (Dodge and Yates 2009, p. 14). At least 11 different pollinator species visit Graham’s beardtongue (England 2003, entire; Lewinsohn and Tepedino 2007, p. 235; Dodge and Yates 2008, p. 31), and there is no evidence of pollinator limitation for this species (Dodge and Yates 2008, p. 14). Pollinators include small to mediumsized solitary bees in the following genera: Agopostemon, Anthophora, Lasioglossum, and Osmia. A VerDate Mar<15>2010 19:56 Aug 05, 2013 Jkt 229001 Penstemon-specializing wasp, Pseudomasaris vespoides, is likely the most common pollinator for P.grahamii (Lewinsohn and Tepedino 2005, p. 17). Larger bumblebees, such as Bombus huntii (Hunt’s bumblebee), are also thought to pollinate Graham’s beardtongue (England 2003, entire). These bees are mostly ground and twignesting bees (Dodge and Yates 2008, pp. 30–1). Pollinators generally need a diversity of native plants whose blooming times overlap, nesting and egg-laying sites with appropriate nesting materials, undisturbed shelter for overwintering, and a landscape free of poisonous chemicals (Shepherd et al. 2003, pp. 49–50). Intact native plant communities that connect populations of rare plants are also important, as anthropogenic disturbances may be a barrier to pollinator movement (Bhattacharya et al. 2003, pp. 42–43). As previously described (see Space for Individual and Population Growth and for Normal Behavior, above), Graham’s beardtongue individuals are sparsely distributed and flowering can be irregular. Populations of other beardtongue species in areas adjacent to Graham’s beardtongue occupied habitat are essential to support the pollinating wasp’s (Pseudomasaris vespoides) population during periods of poor Graham’s beardtongue floral availability (Lewinsohn and Tepedino 2007, p. 236). Protecting these species and intact native plant communities maintains connectivity between areas, allowing pollinators to move between or within populations. These beardtongue species include thickleaf beardtongue (Penstemon pachyphyllus), Fremont’s beardtongue (P. fremontii), Rocky Mountain beardtongue (P. strictus), and White River beardtongue (P. scariosus, not to be confused with P. scariosus var. albifluvis). Because the evidence presented above indicates that pollinators are necessary to maximize successful reproduction of Graham’s beardtongue, we have identified pollinators and their associated habitats as a physical or biological feature for this species. In general, pollinators will focus on small areas where floral resources are abundant; however, occasional longer distance pollination will occur. Typically, pollinators fly distances that are in relation to their body sizes, with smaller pollinators flying shorter distances than larger pollinators (Greenleaf et al. 2007, pp. 589–96). Using available information, we extrapolated likely travel distances of Graham’s beardtongue pollinators based on their medium to large body sizes. The body size of Graham’s beardtongue PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 pollinators allows for travel distances of approximately 700 m (2,297 ft) (Service 2012a, p. 8). If a pollinator can fly long distances, pollen transfer is also possible across these distances. In the interest of protecting pollinators of Graham’s beardtongue, and thus genetic flow between individuals and reproduction for this species, we identified a 700-m (2,297-ft) area beyond occupied habitat to conserve the pollinators essential for plant reproduction. These pollinator habitat areas have the added benefit of potentially providing more habitat for Graham’s beardtongue to expand into, and add protection against encroachment by invasive weeds or other disturbance effects. Habitats Protected from Disturbance or Representative of the Historic Geographical and Ecological Distributions of the Species Intact Soils. Anthropogenic habitat fragmentation within Graham’s beardtongue occupied habitat has not been severe. However, fragmentation is likely to increase in the future without additional protection. As an oil shale endemic, Graham’s beardtongue is limited to a specific soil type and structure (see Soils and Geology, above). It is likely that once Graham’s beardtongue habitat is disturbed through soil-disturbing activities such as oil shale development (see I. Energy Exploration and Development in our proposed listing rule published elsewhere in today’s Federal Register), it is essentially lost to the species. In addition, restoration of native species in arid climates is difficult (Monsen 2004, p. 29). Maintaining intact shale soils where Graham’s beardtongue grows is important to ensure viability of the species. We have identified intact soils within Graham’s beardtongue occupied habitat and nearby plant communities is an important physical or biological feature for this species. White River Beardtongue We have determined that White River beardtongue requires the physical and biological features described below. Space for Individual and Population Growth and for Normal Behavior Plant Community. White River beardtongue is found in semi-barren openings of mixed desert shrub and ˜ pinon-juniper communities. The vascular plant species most frequently associated with White River beardtongue include Barneby’s thistle, saline wild-rye, spiny greasebush, Utah ˜ juniper, twoneedle pinon, shadscale saltbush, Dragon milkvetch, Barneby’s E:\FR\FM\06AUP2.SGM 06AUP2 Federal Register / Vol. 78, No. 151 / Tuesday, August 6, 2013 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS2 thistle, Barneby catseye, rayless tansyaster (Xanthisma grindelioides), and Indian ricegrass (Achnatherum hymenoides) (UNHP 2013, entire). Occasionally White River beardtongue is found with oilshale columbine and Graham’s beardtongue (Franklin 1995, p. 5). Many of the other oil shale endemics found growing with Graham’s beardtongue can be found with White River beardtongue, although White River beardtongue grows in slightly less sparse areas (see Plant Community for Graham’s beardtongue, above, for a complete list (Neese and Smith 1982, p. 58)). We consider sparsely vegetated, barren shale dominated by the dwarf shrubs, cushion-like plants, and endemic species listed above to be a physical or biological feature for this species. Slope and Topography. About onefifth of all known point locations of White River beardtongue are on slopes of 10 degrees or less, with an average slope for all known points of 19.2 degrees (Service 2013, p. 3). This is somewhat steeper than the slopes on which Graham’s beardtongue grows, although 95 percent of the known points are on slopes that are 33 degrees or less (GIS analysis 2013). Field observations also indicate that White River beardtongue grows on steeper slopes than Graham’s beardtongue (Brunson 2012; Service 2012), but this hypothesis should be tested. White River beardtongue individuals usually grow on southwest-facing exposures (GIS analysis 2013). Therefore, we identify southwest-facing slope of less than 33 degrees to be a physical or biological feature for this species. Food, Water, Air, Light, Minerals, or Other Nutritional or Physiological Requirements Soils and Geology. White River beardtongue is restricted to calcareous soils derived from oil shale barrens of the Parachute Creek Member and other members of the Green River Formation in the Uinta Basin of northeastern Utah and adjacent Colorado. White River beardtongue is also associated with the Mahogany ledge (see Soils and Geology for Graham’s beardtongue, above, for more details). White River beardtongue overlaps with Graham’s beardtongue at some locations, and the soil types are basically the same, although White River beardtongue can also be found in red, fine-textured, shallow, soils. Based on the information above, we identify the Green River Formation oil shale soils as a physical or biological feature for this species. Climate. White River beardtongue is adapted to the same climate as Graham’s VerDate Mar<15>2010 19:56 Aug 05, 2013 Jkt 229001 beardtongue—a cold desert climate, with most precipitation occurring in the spring and fall, and snow cover from December through March (Western Regional Climate Center 2013, entire). Winter snow cover may be important for this species as it can prevent severe frost damage to plants during the winter months (Bannister et al. 2005, p. 250– 1). Temperatures can be extreme, with average summer highs around 34 degrees Celsius (°C) (93 degrees Fahrenheit (°F)) and average winter lows around ¥14 °C (7 °F) (Western Regional Climate Center 2013, entire). White River beardtongue seeds need at least 45 to 90 consecutive days at less than 4 °C (40 °F) to germinate (Wilcox et al. undated, p. 5). Average annual precipitation across the range of this species varies from 15 to 30 cm (6 to 12 in) (GIS analysis 2013). Because White River beardtongue evolved under these climatic conditions, we identify suitable precipitation—15 to 30 cm (6 to 12 in) with most precipitation in spring and fall and snow cover from December through March—and suitable temperatures—average winter low temperature of ¥14 °C (7 °F) and average summer high of 34 °C (93 (°F)) with at least 45 to 90 consecutive days less than 4 °C (40 °F)—as physical or biological features for this plant. These climatic conditions are likely influenced, in part, by elevation. Cover or Shelter Seeds and seedlings of White River beardtongue require the right microclimate for germination and establishment. However, we do not know the specific requirements of White River beardtongue for suitable microsites, nor are these features likely to be manageable as a physical or biological feature for this species. Suitable conditions for seed germination and seedling establishment are further described in the Plant Community and Soils and Geology sections, above. Sites for Breeding, Reproduction, or Rearing (or Development) of Offspring Reproduction. Although White River beardtongue can produce seed through self-pollination, cross-pollination produces the most seed and fruits (Lewinsohn and Tepedino 2007, p. 234). At least 15 different pollinator species visit White River beardtongue, and there is no evidence of pollinator limitation for this species (Lewinsohn and Tepedino 2007). Pollinators include small to medium native solitary bees including Anthophora, Ceratina (carpenter bees), Halictus (sweat bees), Lasioglossum, and Osmia species. Pseudomasaris vespoides (wasp) also PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 47837 pollinates White River beardtongue. These bees are mostly ground and twignesting bees (Dodge and Yates 2008, p. 30–1). Pollinators generally need a diversity of native plants whose blooming times overlap, nesting and egg-laying sites with appropriate nesting materials, undisturbed shelter for overwintering, and a landscape free of poisonous chemicals (Shepherd et al. 2003, pp. 49–50). Intact native plant communities that connect populations of rare plants are also important, as anthropogenic disturbances may be a barrier to pollinator movement (Bhattacharya et al. 2003, p. 42–3). Flowering in White River beardtongue is not as unreliable as that for Graham’s beardtongue, although maintaining plant communities adjacent to occupied habitat are still important to maintain a diversity of pollinators (Tepedino et al. 1997, p. 246) and to maintain connectivity between areas, allowing pollinators to move between sites within each population. Because the evidence presented above indicates that pollinators are necessary to maximize successful reproduction of White River beardtongue, we consider pollinators and their associated habitats as a physical or biological feature for this species. Like Graham’s beardtongue, we extrapolated likely travel distances of White River beardtongue pollinators based on their small to medium body sizes. A notable exception to pollinators observed on White River beardtongue is that Bombus spp. and other large bees do not visit these flowers. This observation is not surprising given the relatively smaller size of the flower compared to other beardtongues like Graham’s beardtongue. In the interest of protecting pollinators of White River beardtongue, and thus genetic flow between individuals and reproduction for this species, we identified a 500-m (1,640-ft) area beyond occupied habitat to conserve the pollinators essential for plant reproduction. We based this distance on the fact that small to medium species visit White River beardtongue, and these species are likely capable of travelling a distance of 500 m (1,640 ft) between plants or from nesting sites to plants. These pollinator habitat areas have the added benefit of potentially providing more habitat for White River beardtongue to expand into, and add protection against encroachment by invasive weeds or other disturbance effects. E:\FR\FM\06AUP2.SGM 06AUP2 47838 Federal Register / Vol. 78, No. 151 / Tuesday, August 6, 2013 / Proposed Rules Habitats Protected From Disturbance or Representative of the Historic Geographical and Ecological Distributions of the Species Intact Soils. Anthropogenic habitat fragmentation within White River beardtongue occupied habitat has not been severe. However, fragmentation is likely to increase in the future without sufficient protection. As an oil shale endemic, White River beardtongue is limited to a specific soil type and structure (see Soils and Geology, above). It is likely that once White River beardtongue’s habitat is disturbed through soil-removing activities such as oil shale development, it is essentially lost to the species (see I. Energy Exploration and Development in our proposed listing rule published elsewhere in today’s Federal Register). In addition, restoration of native species in arid climates is difficult (Monsen 2004, p. 29). Maintaining intact shale soils where White River beardtongue grows is important to ensure viability of the species. We have identified intact soils within White River beardtongue occupied habitat and nearby plant communities as an important physical or biological feature for this species. tkelley on DSK3SPTVN1PROD with PROPOSALS2 Primary Constituent Elements for Graham’s Beardtongue Under the Act and its implementing regulations, we are required to identify the physical or biological features essential to the conservation of Graham’s beardtongue in areas occupied at the time of listing, focusing on the features’ primary constituent elements. We consider primary constituent elements to be those specific elements of the 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 Graham’s beardtongue are: (1) Plant community. a. Barren areas with little, but diverse, plant cover. b. Presence of dwarf shrubs and cushion-like, oil shale endemic plants, including Dragon milkvetch (Astragalus lutosus), oilshale columbine (Aquilegia barnebyi), Barneby’s thistle (Cirsium barnebyi), oilshale cryptantha (Cryptantha barnebyi), Graham’s cryptantha (Cryptantha grahamii), Rollins’ cryptantha (Cryptantha rollinsii), ephedra buckwheat (Eriogonum ephedroides), and White VerDate Mar<15>2010 19:56 Aug 05, 2013 Jkt 229001 River beardtongue (Penstemon scariosus var. albifluvis). c. Intact, surrounding, native plant community to support pollinators and protect from the encroachment of invasive weeds and other potential threats. (2) Slopes and topography. a. Southwest- to western-facing slopes. b. Slopes of less than 40 degrees; average slope of 17.6 degrees. (3) Soils and geology. a. Parachute Creek Member and other upper members of the Green River Geologic Formation. b. Appropriate soil morphology characterized by shallow soils with virtually no soil horizon development, with a surface usually covered by broken shale channers or light clay derived from the thinly bedded shale. c. Intact soils with minimal anthropogenic disturbance (at or below current levels) within Graham’s beardtongue occupied habitat and nearby plant communities. (4) Climate. A cold desert climate with the same conditions under which the species evolved and is typical for the area. Annual precipitation of 15 to 30 cm (6 to 12 inches) with most precipitation in spring and fall and snow cover from December through March. Average winter low temperature of ¥14 °C (7 °F) and average summer high of 34 °C (93 (°F)) with at least 45 to 90 consecutive days less than 4 °C (40 °F). (5) Habitat for pollinators. a. Ground and twig nesting areas for pollinators. A diverse mosaic of native plant communities that include flowering plants that provide nectar and pollen for a wide array of pollinator species. b. Connectivity between areas allowing pollinators to move from one site to the next within each population. c. A 700-m (2,297-ft) area beyond occupied habitat to conserve the pollinators essential for plant reproduction. Primary Constituent Elements for White River Beardtongue Under the Act and its implementing regulations, we are required to identify the physical or biological features essential to the conservation of White River beardtongue in areas occupied at the time of listing, focusing on the features’ primary constituent elements. We consider primary constituent elements to be those specific elements of the physical or biological features that provide for a species’ life-history processes and are essential to the conservation of the species. In addition, PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 primary constituent elements for White River beardtongue are nearly identical in some cases to those for Graham’s beardtongue. We note explicitly where differences exist. 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 White River beardtongue are: (1) Plant community. a. Barren areas with little, but diverse, plant cover. b. Presence of dwarf shrubs and cushion-like, oil shale endemic plants, including Dragon milkvetch (Astragalus lutosus), oilshale columbine (Aquilegia barnebyi), Barneby’s thistle (Cirsium barnebyi), oilshale cryptantha (Cryptantha barnebyi), Graham’s cryptantha (Cryptantha grahamii), Rollins’ cryptantha (Cryptantha rollinsii), ephedra buckwheat (Eriogonum ephedroides), and occasionally Graham’s beardtongue (Penstemon grahamii). c. Intact, surrounding, native plant community to support pollinators and protect from the encroachment of invasive weeds and other potential threats. (2) Slopes and topography. a. South- to southwest-facing slopes. b. Slopes of less than 33 degrees; average slope of 19.2 degrees. (3) Soils and geology. a. Parachute Creek Member and other upper members of the Green River Geologic Formation. b. Appropriate soil morphology characterized by shallow soils with virtually no soil horizon development, with a surface usually covered by broken shale channers or light clay derived from the thinly bedded shale. c. Intact soils with minimal anthropogenic disturbance (at or below current levels) within White River beardtongue occupied habitat and nearby plant communities. (4) Climate. A cold desert climate with the same conditions under which the species evolved and is typical for the area. Annual precipitation of 15 to 30 cm (6 to 12 inches) with most precipitation in spring and fall and snow cover from December through March. Average winter low temperature of ¥14 °C (7 °F) and average summer high of 34 °C (93 (°F)) with at least 45 to 90 consecutive days less than 4 °C (40 °F). (5) Habitat for pollinators. a. Ground and twig nesting areas for pollinators. A diverse mosaic of native plant communities that include flowering plants that provide nectar and E:\FR\FM\06AUP2.SGM 06AUP2 Federal Register / Vol. 78, No. 151 / Tuesday, August 6, 2013 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS2 pollen for a wide array of pollinator species. b. Connectivity between areas allowing pollinators to move from one site to the next within each population. c. A 500-m (1,640-ft) area beyond occupied habitat to conserve the pollinators essential for plant reproduction. Special Management Considerations or Protection When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features which are essential to the conservation of the species and which may require special management considerations or protection. A detailed discussion of the current and future threats to Graham’s beardtongue and White River beardtongue can be found in the proposed listing rule, which is published elsewhere in today’s Federal Register. The primary threats impacting the physical and biological features essential to the conservation of Graham’s beardtongue and White River beardtongue that may require special management considerations or protection within the proposed critical habitat include, but are not limited to, energy exploration and development, the cumulative impacts of increased energy development, livestock grazing, invasive weeds, small population sizes, and climate change (for a complete discussion, please see our proposed listing rule published elsewhere in today’s Federal Register). Special management considerations or protections are required within critical habitat areas to address these threats. Management activities that could ameliorate these threats include (but are not limited to): Develop regulations and agreements to balance conservation with energy development and minimize its effects in Graham’s beardtongue and White River beardtongue habitat; avoid placing roads and energy facilities in habitats that would affect these species or their pollinators; minimize livestock use that disturb the soil or seeds; minimize habitat fragmentation; establish permanent conservation easements or land acquisitions to protect the species on non-federal lands; and eliminate or avoid activities that alter the morphology of shale slopes. These management activities will protect the primary constituent elements for the species by preventing the loss of habitat and individuals, preserving these species’ habitats and soils, maintaining native plant communities and natural levels of VerDate Mar<15>2010 19:56 Aug 05, 2013 Jkt 229001 competition, and protecting these species’ reproduction by protecting their pollinators. Criteria Used To Identify Critical Habitat 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 not proposing to designate any areas outside the geographical area currently occupied by Graham’s beardtongue or White River beardtongue because occupied areas are sufficient for the conservation of these species. Conserving imperiled species can be accomplished by following the three Rs: representation, resiliency, and redundancy (Shaffer and Stein 2000). Representation, or preserving some of everything, means conserving not just a species but its associated plant communities, pollinators, and pollinator habitats. We addressed representation through our primary constituent elements for each species as discussed above, specifically by ensuring sufficient habitat for their pollinators. Resiliency and redundancy ensure there is enough of a species so that it can survive into the future. Resiliency means ensuring that the habitat is adequate for a species and its representative components. Redundancy ensures an adequate number of sites and individuals. This methodology has been widely accepted as a reasonable conservation methodology (Tear et al. 2005, p. 841). Critical habitat was identified by compiling all known locations for each species and delineating suitable habitat adjacent to the known locations to provide a sufficient area for pollinator habitat. Pollinator habitat areas for Graham’s beardtongue were delineated using a 700-m (2,297-ft) distance from known locations. Pollinator habitat areas for White River beardtongue were delineated using a 500-m (1,640-ft) distance from known locations. These distances were based on how far the primary pollinators can travel for each of the species (see Reproduction above for each species for more information). Given the total population numbers of each species, we believe the areas we propose to designate as critical habitat for Graham’s beardtongue and White PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 47839 River beardtongue would also preserve redundancy and resilience. As described in our listing proposed rule, published elsewhere in today’s Federal Register, White River beardtongue has 11,423 known plants distributed in 7 populations, and Graham’s beardtongue has 31,702 known plants distributed in 24 populations. We conclude that both species are currently viable, but that their viability will be substantially decreased in the future, mainly because of the threat of energy development. We consider a species viable if it can persist over the long term, thus avoiding extinction. A species can be conserved (and is thus viable) if it has representation, resiliency, and redundancy (Shaffer and Stein 2000), as explained earlier. As described in our listing proposed rule, published elsewhere in today’s Federal Register, the total population of White River beardtongue may be as high as 25,000 plants (Franklin 1995, entire); additional surveys are likely to locate more plants and additional populations within the boundaries of the proposed critical habitat. Our proposed critical habitat includes all verified populations of both species and additional suitable habitats into which the species populations can expand. Therefore, we conclude that our proposed critical habitat boundaries would be sufficient to ensure species viability for both species over the long term. When determining proposed critical habitat boundaries, we did not attempt to avoid developed areas such as lands covered by buildings, pavement, and other structures because minimal development exists within habitat for these two species. Although any developed areas lack the physical or biological features necessary for Graham’s and White River beardtongues, both of these species grow in remote areas that have not yet experienced considerable development and, for the most part, have few developed roads crossing through them at this time. However, any developed lands occurring inside the critical habitat boundaries shown on the maps of this proposed rule are excluded by text in this proposed rule and are not proposed for designation as critical habitat. Therefore, if the critical habitat is finalized as proposed, a federal action involving already developed areas would not, in most cases, trigger section 7 consultation. We delineated the proposed critical habitat unit boundaries for Graham’s beardtongue and White River beardtongue using the following steps: (1) We mapped all plant points on file (using ArcMap 10.0) at the Utah Natural E:\FR\FM\06AUP2.SGM 06AUP2 47840 Federal Register / Vol. 78, No. 151 / Tuesday, August 6, 2013 / Proposed Rules Heritage Program (UNHP), Colorado Natural Heritage Program (CNHP), and the BLM (see the proposed listing rule published elsewhere in today’s Federal Register for more details). These data consist of point locations collected over several decades by organizations, agencies, or consultants. (2) For Graham’s beardtongue, we examined Bing Maps Aerial imagery (provided with ArcMap 10.0 software) and excluded all GIS locations that were collected prior to the year 2000, and that were farther than 50 m (164 ft) from suitable habitat. Locations collected prior to 2000 within 50 m (164 ft) of suitable habitat were retained in our dataset (GIS analysis 2013). If it was not clear from looking at the aerial imagery whether the point was in suitable habitat, we erred on the side of the species and included the point in our proposed critical habitat areas. Through this process, we removed 15 point locations from our Graham’s beardtongue dataset. Most of the historical points that we removed overlapped or were very close to recently collected data. We removed a historical point from Carbon County from our proposed critical habitat area that has not been revisited for more than 30 years, even though this is the only point in that county. We acknowledge that there is potential habitat in the area, but this point needs to be revisited to confirm whether the species is present near this location. For White River beardtongue, we did not remove any historical points because they all appeared to be within or adjacent to suitable habitat. The exception is 16 points from herbaria records ranging from the vicinity of Bitter Creek west to Willow Creek, which we have not confirmed as White River beardtongue and therefore do not include in proposed critical habitat for this plant. (3) For Graham’s beardtongue data from Utah, we created proposed critical habitat areas by including all pollinator habitat within 700 m (2,297 ft) around each point. We then dissolved boundaries between the overlapping polygons. We did not have as complete a dataset for Colorado as for Utah, so we combined all of the point and polygon data we received from the CNHP, and calculated pollinator habitat areas within 700 m (2,297 ft) (see Sites for Breeding, Reproduction, or Rearing (or Development) of Offspring, above). We also created our own polygon to incorporate suitable habitat on Raven Ridge, which we identified via aerial imagery. We followed a similar protocol for White River beardtongue, but instead created pollinator habitat areas within 500 m (1,640 ft) around all points. We did this for both Utah and Colorado points. (4) Critical habitat units are not one contiguous unit; rather, each contains several polygons. Each polygon is a subunit containing the PCEs within the larger unit that contain the essential features and are occupied. Proposed units are separated from each other by either relatively great distance or by geographic features. Units for Graham’s beardtongue are essentially the same as in the January 19, 2006, proposed rule (71 FR 3158), although the proposed unit boundaries are expanded slightly to include new data. Proposed units for White River beardtongue are delineated based on geographic features that separated polygons. We are proposing for designation as critical habitat lands that we have determined are occupied and contain sufficient elements of physical or biological features to support lifehistory processes essential for the conservation of Graham’s and White River beardtongues. The proposed critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document in the rule portion. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make the coordinates or plot points that the maps are based on available to the public at https://www.regulations.gov at Docket No. FWS–R6–ES–2013–0082, on our Internet site at https://www.fws.gov/ utahfieldoffice, and at the field office responsible for the designation (see FOR FURTHER INFORMATION CONTACT above). Proposed Critical Habitat Designation Graham’s beardtongue We are proposing five units as critical habitat for Graham’s beardtongue, which are the same units we proposed in 2006, although the boundaries of each unit have changed (71 FR 3158, January 19, 2006). The critical habitat units we describe below constitute our best assessment of areas that meet the definition of critical habitat for Graham’s beardtongue. The five units we propose as critical habitat are: (1) Sand Wash, (2) Seep Ridge, (3) Evacuation Creek, (4) White River, and (5) Raven Ridge. All of these units contain occupied Graham’s beardtongue habitat. The approximate acreage and land ownership status of each proposed critical habitat unit is shown in Table 1. TABLE 1—ACREAGE AND LAND OWNERSHIP STATUS FOR THE PROPOSED CRITICAL HABITAT UNITS FOR GRAHAM’S BEARDTONGUE. Area Estimates Reflect All Land Within Critical Habitat Unit Boundaries. Critical habitat unit Land ownership 1. Sand Wash .................................................................................................... BLM ..................................................... State .................................................... Private ................................................. 3,056 ha (7,550 ac). 27 ha (66 ac). 76 ha (189 ac). Total ............................................. 3,159 ha (7,805 ac). tkelley on DSK3SPTVN1PROD with PROPOSALS2 2. Seep Ridge .................................................................................................... BLM ..................................................... State .................................................... Private ................................................. Total ............................................. 3. Evacuation Creek .......................................................................................... BLM ..................................................... State .................................................... Private ................................................. Total ............................................. 4. White River .................................................................................................... VerDate Mar<15>2010 20:48 Aug 05, 2013 Jkt 229001 PO 00000 Frm 00010 Fmt 4701 BLM ..................................................... Sfmt 4702 E:\FR\FM\06AUP2.SGM 06AUP2 Size of unit 6,649 ha (16,430 ac). 2,650 ha (6,549 ac). 862 ha (2,131 ac). 10,162 ha (25,110 ac). 3,879 ha (9,586 ac). 1,417 ha (3,502 ac). 1,632 ha (4,033 ac). 6,929 ha (17,122 ac). 2,243 ha (5,542 ac). Federal Register / Vol. 78, No. 151 / Tuesday, August 6, 2013 / Proposed Rules 47841 TABLE 1—ACREAGE AND LAND OWNERSHIP STATUS FOR THE PROPOSED CRITICAL HABITAT UNITS FOR GRAHAM’S BEARDTONGUE.—Continued Area Estimates Reflect All Land Within Critical Habitat Unit Boundaries. Critical habitat unit Land ownership State .................................................... Private ................................................. Total ............................................. Size of unit 401 ha (991 ac). 2,047 ha (5,059 ac). 4,691 ha (11,592 ac). 5. Raven Ridge .................................................................................................. BLM ..................................................... Private ................................................. Total ............................................. 2,257 ha (5,578 ac). 304 ha (752 ac). 2,562 ha (6,330 ac). Total Across All Units ........................................................................................ BLM ..................................................... State .................................................... Private ................................................. Total ............................................. 18,084 ha (44,686 ac). 4,495 ha (11,108 ac). 4,921 ha (12,164 ac). 27,502 ha (67,959 ac) Note: Area sizes may not sum due to rounding. tkelley on DSK3SPTVN1PROD with PROPOSALS2 We present brief descriptions of the proposed units, and reasons why they meet the definition of critical habitat for Graham’s beardtongue, below. The units are listed in order geographically west to east, and north to south. Unit 1: Sand Wash The Sand Wash Unit is the westernmost proposed critical habitat unit found in the vicinity of Sand Wash in southwestern Uintah County and adjacent Duchesne County, Utah. This unit contains nine subunits, and each subunit is occupied and contains all of the physical and biological features essential to the conservation of the species, including outcrops of the Parachute Creek member and other upper members of the Green River Geologic Formation, the appropriate plant community including other oil shale endemics, a climate with 15 to 30 cm (6 to 12 in.) in annual precipitation, and intact pollinator habitat. This unit is occupied and includes approximately 62 Graham’s beardtongue locations representing at least 1,156 plants and seven populations. This unit is the most geographically isolated from the other units and has minor differences in flower and vegetation color from the remainder of Graham’s beardtongue populations (Shultz and Mutz 1979, p. 41). These color differences may indicate that this unit, due to geographic isolation, is genetically divergent from the remainder of the species’ population. Factors affecting Graham’s beardtongue within this unit, regardless of land ownership, include energy development, domestic livestock and native grazing and trampling, and road impacts, including road maintenance, increased fugitive dust, and spreading invasive weeds. A majority of this unit is managed by the BLM, where Graham’s beardtongue receives some VerDate Mar<15>2010 20:48 Aug 05, 2013 Jkt 229001 protection via a signed conservation agreement and as a BLM special status species (see Factor D in our proposed listing rule published elsewhere in today’s Federal Register for more details). No oil and gas wells are located within the Sand Wash Unit, although 66 percent of the area is leased for oil and gas. Private mineral rights do not require leases to develop and so are not included in the total. Oil shale and tar sand leases discussed include only Federal leases of oil shale and tar sands. None of the critical habitat in this unit falls within designated oil shale or tar sands areas. Nearly the entire unit is leased as grazing allotments. At least one class B (graveled) road and several class D roads pass through this unit. Class B roads are highways, roads, or streets designated and maintained by a county. Class D roads are unmaintained. OHV use and unauthorized collection have not been documented within the Sand Wash unit, although a major road runs through this unit and these stressors could potentially occur here. A cohesive management strategy will be necessary to reduce threats and protect the physical and biological features essential to the conservation of the species. Unit 2: Seep Ridge The Seep Ridge Unit occurs approximately 17 miles east of the Sand Wash Unit, in the vicinity of Buck, Sunday School, and Klondike Canyons near the Seep Ridge Road in south central Uintah County, Utah. This unit contains ten subunits, and each subunit is occupied and contains all of the physical and biological features essential to the conservation of the species including outcrops of the Parachute Creek member and other upper members of the Green River Geologic Formation, the appropriate PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 plant community including other oil shale endemics, a climate with 20 to 30 cm (8 to 12 in) in annual precipitation, and intact pollinator habitat. This unit is occupied and includes approximately 1,442 Graham’s beardtongue points representing at least 8,017 plants and seven populations. Factors affecting Graham’s beardtongue within this unit include energy development, domestic livestock and native grazing and trampling, and road impacts, including road maintenance, increased fugitive dust, and spreading invasive weeds. The Seep Ridge Unit is managed mostly by the BLM, although it includes the most State and Institutional Trust Lands (SITLA) lands managed by the State of Utah of any of the proposed units. The SITLA land in this unit contains occupied and suitable habitat (GIS analysis 2013). To date, SITLA has not provided protection to Graham’s beardtongue on the lands it manages in the Uinta Basin where energy development exists. Four producing gas wells occur across all ownerships within the Seep Ridge Unit (GIS analysis 2013). An additional 13 gas wells are in various states of abandonment (plugged and abandoned, operations suspended, or shut-in) but may have resulted in the loss of plants and their habitat when they were active. Approximately 30 percent of the Seep Ridge Unit is leased for traditional oil and gas development, and 38 percent falls within oil shale and tar sands lease areas (some of these lease areas overlap current oil and gas leases). Combined, about 56 percent of the Seep Ridge Unit is leased or open for leasing for energy development. Several roads cross through the Seep Ridge Unit, including four class B (graveled) roads and at least eight class D roads. Seep Ridge Road crosses through a portion of one population of E:\FR\FM\06AUP2.SGM 06AUP2 47842 Federal Register / Vol. 78, No. 151 / Tuesday, August 6, 2013 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS2 Graham’s beardtongue. This road was paved and widened within occupied Graham’s beardtongue habitat in 2012, and 33 Graham’s beardtongue individuals were salvaged or transplanted as a result (see our proposed listing rule published elsewhere in today’s Federal Register for more details). The entirety of this unit is leased as grazing allotments. OHV use and unauthorized collection have not been documented within the Seep Ridge unit, although several major roads run through this unit and these stressors could potentially occur here. A cohesive management strategy will be necessary to reduce threats and protect the physical and biological features essential to the conservation of the species. Unit 3: Evacuation Creek The Evacuation Creek Unit occurs approximately 6 miles east of the Seep Ridge Unit, in the Asphalt Wash and Evacuation Creek drainages near the abandoned Gilsonite mining towns of Dragon and Rainbow. This unit is in southeastern Uintah County, Utah, and adjacent Rio Blanco County, Colorado. The Evacuation Creek Unit is occupied and contains the most individuals of Graham’s beardtongue: Approximately 1,375 points representing at least 15,077 plants and three populations. This unit contains four subunits, and each subunit is occupied and contains all of the physical and biological features essential to the conservation of the species including outcrops of the Parachute Creek member and other upper members of the Green River Geologic Formation, the appropriate plant community including other oil shale endemics, a climate with 20 to 30 cm (8 to 12 in) in annual precipitation, and intact pollinator habitat. Factors affecting Graham’s beardtongue within this unit include energy development, domestic livestock and native grazing and trampling, and road impacts, including road maintenance, increased fugitive dust, and spreading invasive weeds. Most of this unit is managed by the BLM, with some private and State lands. One producing gas well lies within the Evacuation Creek unit. An additional 17 wells are plugged and abandoned but may have resulted in the loss of plants and their habitat when they were active. Approximately 36 percent of the Evacuation Creek Unit is leased for traditional oil and gas development, and 39 percent falls within oil shale and tar sands lease areas (some of these lease areas overlap current oil and gas leases). Combined, about 69 percent of the Evacuation Creek Unit is leased or open VerDate Mar<15>2010 19:56 Aug 05, 2013 Jkt 229001 for leasing for energy development. The entire unit is leased as grazing allotments. Several roads cross through the Evacuation Creek Unit, including three class B (graveled) roads and at least eight class D roads. A cohesive management strategy will be necessary to reduce threats and protect the physical and biological features essential to the conservation of the species. Unit 4: White River The White River Unit occurs approximately 3 miles north of the Evacuation Creek unit in Hells Hole and Weaver Canyons immediately south of the White River. This unit in eastern Uintah County, Utah, includes approximately 1,565 points representing at least 7,385 plants and one population. This unit contains four subunits, and each subunit is occupied and contains all of the physical and biological features essential to the conservation of the species including outcrops of the Parachute Creek member and other upper members of the Green River Geologic Formation, the appropriate plant community including other oil shale endemics, suitable elevation ranges of 1,484 to 2,113 m (4,869 to 6,932 ft), a climate with 20 to 30 cm (8 to 12 in.) in annual precipitation, and intact pollinator habitat. Factors affecting Graham’s beardtongue within this unit include energy development, domestic livestock and native grazing and trampling, and road impacts, including road maintenance, increased fugitive dust, and spreading invasive weeds. Approximately 50 percent of this unit is managed by the BLM. The other 50 percent is privately and State owned. No producing wells occur within the White River Unit. Approximately 27 percent of the White River Unit is leased for traditional oil and gas development, and 22 percent falls within oil shale and tar sands lease areas (some of these lease areas overlap current oil and gas leases). Combined, about 43 percent of the White River Unit is leased or open for leasing for energy development. Although this critical habitat unit has less area available for oil shale and tar sands leasing than other critical habitat units, this unit includes a proposed oil shale mining project (Enefit) that is likely to impact 20 percent of the known individuals of Graham’s beardtongue (see our proposed listing rule published elsewhere in today’s Federal Register for more details). Overall, the most substantial threat within the White River Unit is oil shale development. About half of this unit is in private or State ownership that is PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 likely to be mined for oil shale in the future. Direct loss of habitat or individuals within this critical habitat unit is also likely to have impacts on the Evacuation Creek and Raven Ridge Units, as the White River Unit serves as an important connection between the Utah and Colorado populations of Graham’s beardtongue. This entire unit is leased as grazing allotments. A small portion of a class B (graveled) road and several class D roads pass through the White River Unit, but this unit is more remote than the other critical habitat units. A cohesive management strategy will be necessary to reduce threats and protect the physical and biological features essential to the conservation of the species. Unit 5: Raven Ridge The Raven Ridge Unit occurs approximately 4 miles northeast of the White River Unit along the west flank of Raven Ridge and north of the White River between Raven Ridge and the Utah border in extreme western Rio Blanco County, Colorado. This unit includes approximately 11 points representing at least 33 plants and four populations. Although population estimates within this unit in 2006 were 200 plants, more recent surveys have not located as many individuals. This unit contains three subunits, and each subunit is occupied and contains all of the physical and biological features essential to the conservation of the species including outcrops of the Parachute Creek member and other upper members of the Green River Geologic Formation, the appropriate plant community including other oil shale endemics, a climate with 15 to 30 cm (6 to 12 in.) in annual precipitation, and intact pollinator habitat. Factors affecting Graham’s beardtongue within this unit include energy development, domestic livestock and native grazing and trampling, and road impacts, including road maintenance, increased fugitive dust, and spreading invasive weeds. This unit is primarily managed by the BLM, with some private lands. Sixty percent of this unit is within the BLM Raven Ridge Area of Critical Environmental Concern (ACEC), which was established to protect listed, candidate, and BLM-sensitive species. The ACEC restricts motorized travel to existing roads and trails and includes a no surface occupancy (NSO) stipulation for new oil and gas leases within the ACEC (BLM 1997, p. 2–19, 2–44). Although the Raven Ridge ACEC sets out goals for a management plan for the E:\FR\FM\06AUP2.SGM 06AUP2 Federal Register / Vol. 78, No. 151 / Tuesday, August 6, 2013 / Proposed Rules area, BLM has not completed a formal management plan for this area. No producing wells occur within the Raven Ridge Unit, although two abandoned wells may have resulted in the loss of plants and their habitat when they were active. Approximately 27 percent of the Raven Ridge Unit is leased for traditional oil and gas development, but none of this unit falls within oil shale and tar sands lease areas. An additional 30 percent of the Raven Ridge ACEC was proposed for leasing in 2013, but the lease sale is now deferred for further analysis (BLM 2013, entire). The entirety of this unit is leased as grazing allotments. One class B road passes through the Raven Ridge Unit. Overall, a cohesive, unit-wide management strategy is still needed to protect Graham’s beardtongue across the entire unit. White River Beardtongue We are proposing three units as critical habitat for White River 47843 beardtongue. The critical habitat areas we describe below constitute our best assessment of areas that meet the definition of critical habitat for White River beardtongue. The three units we propose as critical habitat are: (1) North Evacuation Creek, (2) Weaver Ridge, and (3) South Raven Ridge. All of these units are occupied by White River beardtongue. The approximate acreage of each proposed critical habitat unit is shown in Table 2. TABLE 2—ACREAGE AND LAND OWNERSHIP STATUS FOR THE PROPOSED CRITICAL HABITAT UNITS FOR WHITE RIVER BEARDTONGUE. Area Estimates Reflect All Land Within Critical Habitat Unit Boundaries. Critical habitat unit Land ownership 1. North Evacuation Creek ................................................................................... BLM ....................................................... State ...................................................... Private ................................................... 1,368 ha (3,382 ac). 185 ha (457 ac). 1,415 ha (3,498 ac). Total ............................................... 2,969 ha (7,336 ac). BLM ....................................................... State ...................................................... Private ................................................... 788 ha (1,946 ac). 651 ha (1,608 ac). 1,397 ha (3,452 ac). Total ............................................... 2,836 ha (7,006 ac). 2. Weaver Ridge .................................................................................................. 3. South Raven Ridge .......................................................................................... Size of unit 191 ha (472 ac). 41 ha (101 ac). Total ............................................... Total Across All Units ........................................................................................... BLM ....................................................... Private ................................................... 232 ha (573 ac). BLM ....................................................... State ...................................................... Private ................................................... Total ............................................... 2,347 ha (573 ac). 836 ha (2,853 ac). 2,853 ha (7,051 ac). 6,036 ha (14,914 ac). tkelley on DSK3SPTVN1PROD with PROPOSALS2 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 White River beardtongue, below. The units are listed in order geographically south to north. There is no obvious geographical or biological barrier between the Evacuation Creek and White River critical habitat units. We chose to separate these units based on splitting the known Utah populations into a northern half and a southern half. We also discuss where White River beardtongue critical habitat overlaps Graham’s beardtongue critical habitat— approximately 54 percent of all proposed White River beardtongue critical habitat overlaps with Graham’s beardtongue’s proposed critical habitat. Unit 1: North Evacuation Creek The North Evacuation Creek Unit occurs about 11 km (7 miles) south and east of Bonanza, Utah, in the Asphalt Wash and Evacuation Creek drainages near the abandoned Gilsonite mining towns of Dragon and Rainbow. This unit VerDate Mar<15>2010 21:37 Aug 05, 2013 Jkt 229001 is in southeastern Uintah County, Utah, and adjacent Rio Blanco County, Colorado. The North Evacuation Creek Unit contains approximately 259 points representing at least 6,820 plants and three populations. Fifty-three percent of this unit overlaps with Graham’s beardtongue proposed critical habitat. This unit contains nine subunits, and each subunit is occupied and contains all of the physical and biological features essential to the conservation of the species including outcrops of the Parachute Creek member and other upper members of the Green River Geologic Formation, the appropriate plant community including other oil shale endemics, a climate with 20 to 30 cm (8 to 12 in) in annual precipitation, and intact pollinator habitat. Factors affecting White River beardtongue within this unit include energy development, domestic livestock and native grazing and trampling, and road impacts, including road maintenance, increased fugitive dust, and spreading invasive weeds. This unit PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 is split almost evenly by BLM and private landownership, with a small amount of State land. Four plugged and abandoned wells are located within the North Evacuation Creek Unit but may have resulted in the loss of plants and their habitat when they were active. Approximately 10 percent of the North Evacuation Creek Unit is leased for traditional oil and gas development, and 39 percent falls within oil shale and tar sands lease areas, with very little overlap between the two lease types. Additionally, a majority of the critical habitat areas included in this unit occurs on private land and is therefore not included in these lease totals. Combined, about 49 percent of the North Evacuation Creek unit is leased or open for leasing for energy development. The entire portion of this unit on BLM land is grazed. Several roads cross through the North Evacuation Creek unit, including four graveled, class B roads. A cohesive management strategy will be necessary E:\FR\FM\06AUP2.SGM 06AUP2 47844 Federal Register / Vol. 78, No. 151 / Tuesday, August 6, 2013 / Proposed Rules to reduce threats and protect the physical and biological features essential to the conservation of the species. Unit 2: Weaver Ridge tkelley on DSK3SPTVN1PROD with PROPOSALS2 to reduce threats and protect the physical and biological features essential to the conservation of the species. Unit 3: South Raven Ridge The Weaver Ridge Unit occurs directly east and southeast of Bonanza, Utah, and immediately north of the North Evacuation Creek Unit. This unit is in southeastern Uintah County, Utah, and adjacent Rio Blanco County, Colorado. The Weaver Ridge Unit includes approximately 319 points representing at least 4,575 plants and 3 populations. Fifty-five percent of this unit overlaps with proposed Graham’s beardtongue critical habitat. This unit contains thirteen subunits, and each subunit is occupied and contains all of the physical and biological features essential to the conservation of the species including outcrops of the Parachute Creek member and other upper members of the Green River Geologic Formation, the appropriate plant community including other oil shale endemics, a climate with 15 to 30 cm (6 to 12 in.) in annual precipitation, and intact pollinator habitat. Factors affecting White River beardtongue within this unit include energy development, domestic livestock and native grazing and trampling, and road impacts, including road maintenance, increased fugitive dust, and spreading invasive weeds. Most of this unit is privately owned, with some BLM and State land. Although most of the critical habitat within this unit occurs on private land, most of the known plant points occur on Federal lands. This is not surprising, as private lands are not typically surveyed, and we expect that additional surveys conducted on private lands would count many more individuals of White River beardtongue within this unit. Two producing wells and three approved well locations are located within the Weaver Ridge Unit. Approximately 31 percent of the Weaver Ridge Unit is leased for traditional oil and gas development, and 19 percent falls within oil shale and tar sands lease areas. Combined, about 45 percent of the Weaver Ridge Unit is leased or, in the case of oil shale and tar sands development, designated for leasing for energy development. The entire portion of the unit on BLM lands is grazed. A paved State road, the Bonanza Highway, crosses just through the edge of a critical habitat area within the Weaver Ridge Unit, and another paved class B road skirts another area. A cohesive management strategy will be necessary The South Raven Ridge Unit occurs about 10 km northeast of the Weaver Ridge Unit and about 11 km west of Rangely, Colorado, on the southern portion of Raven Ridge overlooking the White River. This unit is entirely within Rio Blanco County, Colorado. The South Raven Ridge Unit is the smallest unit for this species and contains 6 points representing at least 28 plants and 1 population. Fifty-nine percent of this unit overlaps with Graham’s beardtongue critical habitat. This unit has all the physical and biological features essential to the conservation of the species including outcrops of the Parachute Creek member and other upper members of the Green River Geologic Formation, the appropriate plant community including other oil shale endemics, a climate with 15 to 30 cm (6 to 12 in) in annual precipitation, and intact pollinator habitat. Factors affecting White River beardtongue within this unit include domestic livestock and native grazing and trampling, and some road impacts, including road maintenance, increased fugitive dust, and spreading invasive weeds. No oil or gas wells are located within the South Raven Ridge Unit. This unit is mostly on BLM lands with some private lands. Approximately 20 percent of the South Raven Ridge Unit is leased for traditional oil and gas development. None of this unit falls within oil shale and tar sands lease areas. All of the BLM-managed lands in this unit are grazed. No major roads cross through this unit. Sixty-four percent of this unit is within the Raven Ridge ACEC (discussed above), with restricted motorized travel and NSO stipulations (BLM 1997, p. 2–19, 2–44). As described above, although the Raven Ridge ACEC sets out goals for a management plan for the area, BLM has not completed a formal management plan for this area. Overall, threats occur across the entire unit, and thus a cohesive management strategy will be necessary to reduce threats and protect the physical and biological features essential to the conservation of the species. VerDate Mar<15>2010 21:37 Aug 05, 2013 Jkt 229001 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, PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 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 which 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: E:\FR\FM\06AUP2.SGM 06AUP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 Federal Register / Vol. 78, No. 151 / Tuesday, August 6, 2013 / Proposed Rules (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, and 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 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 VerDate Mar<15>2010 19:56 Aug 05, 2013 Jkt 229001 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 Graham’s beardtongue and White River beardtongue. As discussed above, the role of critical habitat is to support lifehistory needs of the species and provide for the conservation of these 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 Graham’s beardtongue or White River beardtongue. These activities include, but are not limited to: (1) Actions that have the potential to appreciably degrade or destroy Graham’s beardtongue or White River beardtongue habitat and primary constituent elements. Such activities could include, but are not limited to, energy development, road construction and maintenance, OHV use, and intensive livestock grazing. These activities could eliminate or reduce the habitat necessary for the growth, reproduction, and establishment of these species; (2) Alteration of naturally existing hydrology by redirection of sheet flow or water ‘‘perching’’ (to which the species may be adapted, discussed above in Soils and Geology for Graham’s beardtongue) from areas adjacent to occupied habitat; (3) Compaction of soil through the establishment of new wellpads, roads, pipelines, or trails; (4) Activities that foster the introduction of nonnative vegetation, particularly noxious weeds, or create conditions that encourage the growth of nonnatives. These activities could include, but are not limited to: Supplemental feeding of livestock, ground disturbance associated with energy development, roads, and other soil-disturbing activities; and (5) Indirect effects that appreciably decrease habitat value or quality (e.g., energy development near critical habitat that leads to disturbance, erosion, herbicide and pesticide use that could impair pollinators, and changes to drainage patterns, soil stability, and vegetative community composition). PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 47845 Exemptions Application of Section 4(a)(3) of the Act The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) required each military installation that includes land and water suitable for the conservation and management of natural resources to complete an integrated natural resources management plan (INRMP) by November 17, 2001. The INRMPs must to the extent appropriate and applicable, provide for fish and wildlife management; fish and wildlife habitat enhancement or modification; wetland protection, enhancement, and restoration where necessary to support fish and wildlife; and enforcement of applicable natural resource laws. There are no Department of Defense lands within our 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 she determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless she 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 her discretion to exclude the area only if such exclusion would not result in the extinction of the species. E:\FR\FM\06AUP2.SGM 06AUP2 47846 Federal Register / Vol. 78, No. 151 / Tuesday, August 6, 2013 / Proposed Rules 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. All of the proposed critical habitat units contain private lands, Federal lands with oil and gas leases, and grazing permits. Several Stateowned parcels are included in some units where oil and gas development occurs. The economic analysis will estimate the economic impact of a potential designation of critical habitat on these activities. During the development of a final designation, we will consider economic impacts based on information in our economic analysis, 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 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 Graham’s beardtongue and White River beardtongue are not owned or managed by the Department of Defense or Department of Homeland Security, and, therefore, we anticipate no impact on national security. Consequently, the Secretary is not intending to exercise her discretion to exclude any areas from the final designation based on impacts on national security. tkelley on DSK3SPTVN1PROD with PROPOSALS2 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 (HCPs) 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. There are no tribal lands included in VerDate Mar<15>2010 19:56 Aug 05, 2013 Jkt 229001 our proposed critical habitat designation. In preparing this proposal, we have determined that there are no HCPs or other management plans for Graham’s beardtongue and White River beardtongue, and the proposed designation does not include any tribal lands or trust resources. We anticipate no impact on tribal lands, partnerships, or HCPs from this proposed critical habitat designation. Accordingly, the Secretary does not intend to exercise her discretion to exclude any areas from the final designation based on other relevant impacts. 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 critical habitat designation is based on scientifically sound data, and analyses. We have invited these peer reviewers to comment during this public comment period. 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 the FOR FURTHER INFORMATION CONTACT section. 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, PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 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 by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; 5 U.S.C 801 et seq.), whenever an agency is required to 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. According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include such businesses as manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and forestry and logging operations with fewer than 500 employees and annual business less than $7 million. To determine whether small entities may be affected, we will consider the types E:\FR\FM\06AUP2.SGM 06AUP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 Federal Register / Vol. 78, No. 151 / Tuesday, August 6, 2013 / Proposed Rules of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term ‘‘significant economic impact’’ is meant to apply to a typical small business firm’s business operations. Importantly, the incremental impacts of a rule must be both significant and substantial to prevent certification of the rule under the RFA and to require the preparation of an initial regulatory flexibility analysis. If a substantial number of small entities are affected by the proposed critical habitat designation, but the per-entity economic impact is not significant, the Service may certify. Likewise, if the per-entity economic impact is likely to be significant, but the number of affected entities is not substantial, the Service may also certify. Under the RFA, as amended, and following recent court decisions, Federal agencies are only required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself, and not the potential impacts to indirectly affected entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried by the Agency is not likely to adversely modify critical habitat. Therefore, only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Under these circumstances, it is our position that only Federal action agencies will be directly regulated by this designation. Therefore, because Federal agencies are not small entities, the Service may certify that the proposed critical habitat rule will not have a significant economic impact on a substantial number of small entities. We acknowledge, however, that in some cases, third-party proponents of the action subject to permitting or funding may participate in a section 7 consultation, and thus may be indirectly affected. We believe it is good policy to assess these impacts if we have sufficient data before us to complete the necessary analysis, whether or not this analysis is strictly required by the RFA. While this regulation does not directly regulate these entities, in our draft economic analysis we will conduct a brief evaluation of the potential number of third parties participating in consultations on an annual basis in order to ensure a more complete VerDate Mar<15>2010 19:56 Aug 05, 2013 Jkt 229001 examination of the incremental effects of this proposed rule in the context of the RFA. In conclusion, we believe that, based on our interpretation of directly regulated entities under the RFA and relevant case law, this designation of critical habitat will only directly regulate Federal agencies which are not by definition small business entities. As such, we certify that, if promulgated, this designation of critical habitat would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required. However, though not necessarily required by the RFA, in our draft economic analysis for this proposal, we will consider and evaluate the potential effects to third parties that may be involved with consultations with Federal action agencies related to this action. 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. Graham’s beardtongue and White River beardtongue both occur in areas with energy development activity. Existing well pads and proposed oil shale development projects are within proposed critical habitat units. On Federal lands, entities conducting energy-related activities would need to consult within areas designated as critical habitat. We are deferring our finding until the draft economic analysis has been completed. 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’’ PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 47847 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 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. Small governments will be affected only to the extent that any programs having Federal funds, permits, or other authorized activities must ensure that their actions will not adversely affect the critical habitat. Therefore, a Small Government Agency E:\FR\FM\06AUP2.SGM 06AUP2 47848 Federal Register / Vol. 78, No. 151 / Tuesday, August 6, 2013 / Proposed Rules Plan is not required. However, we will further evaluate this issue as we conduct our economic analysis, and review and revise this assessment if appropriate. tkelley on DSK3SPTVN1PROD with PROPOSALS2 Takings—Executive Order 12630 In accordance with Executive Order 12630 (‘‘Government Actions and Interference with Constitutionally Protected Private Property Rights’’), we have analyzed the potential takings implications of designating critical habitat for the Graham’s beardtongue and White River beardtongue in a takings implications assessment. Based on the best available information, the takings implications assessment concludes that this designation of critical habitat for the Graham’s beardtongue and the White River beardtongue does not pose significant takings implications. However, we will further evaluate this issue as we develop our final designation, and review and revise this assessment as warranted. 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 Utah and Colorado. The designation of critical habitat in areas occupied by Graham’s beardtongue and White River beardtongue may impose nominal additional regulatory restrictions to those currently in place and, therefore, has little incremental impact on State and local governments and their activities. The designation may have some benefit to these governments because the areas that contain the physical and 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 along-range planning (rather than having them wait for caseby-case section 7 consultation 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, VerDate Mar<15>2010 19:56 Aug 05, 2013 Jkt 229001 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. 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. 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. To assist the public in understanding the habitat needs of the species, the rule identifies the elements of physical or biological features essential to the conservation of the species. The designated areas of critical habitat are presented on maps, and the rule provides several options for the interested public to obtain more detailed location information, if desired. 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 were occupied by Graham’s beardtongue or White River beardtongue at the time of listing that contain the features essential for conservation of the species, and no tribal lands unoccupied by Graham’s beardtongue or White River beardtongue that are essential for the conservation of these species. Therefore, we are not proposing to designate critical habitat for Graham’s beardtongue or White River beardtongue on tribal lands. 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.) 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 the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) 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 Graham’s beardtongue and White River beardtongue, under the Tenth Circuit PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 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 E:\FR\FM\06AUP2.SGM 06AUP2 Federal Register / Vol. 78, No. 151 / Tuesday, August 6, 2013 / Proposed Rules 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. References Cited A complete list of references cited in this rulemaking is available on the Internet at https://www.regulations.gov under Docket No. FWS–R6–ES–2013– 0082 and upon request from the Utah Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Authors The primary authors of this package are the staff members of the Utah 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—ENDANGERED AND THREATENED WILDLIFE AND PLANTS 1. The authority citation for part 17 continues to read as follows: ■ Authority: 16 U.S.C. 1361–1407; 1531– 1544; 4201–4245, unless otherwise noted. 2. In § 17.96, amend paragraph (a) by adding entries for ‘‘Penstemon grahamii (Graham’s beardtongue)’’ and ‘‘Penstemon scariosus var. albifluvis (White River beardtongue)’’ in alphabetical order under Family Plantaginaceae, to read as follows: ■ § 17.96 Critical habitat—plants. * * * * * (a) Flowering plants. * * * * * Family Plantaginaceae: Penstemon grahamii (Graham’s beardtongue) tkelley on DSK3SPTVN1PROD with PROPOSALS2 (1) Critical habitat units are depicted for Uintah and Duchesne Counties, VerDate Mar<15>2010 19:56 Aug 05, 2013 Jkt 229001 Utah, and Rio Blanco County, Colorado, on the maps below. (2) Within these areas, the primary constituent elements of the physical or biological features essential to the conservation of Graham’s beardtongue consist of: (i) Plant community. (A) Barren areas with little, but diverse, plant cover. (B) Presence of dwarf shrubs and cushion-like, oil shale endemic plants, including Dragon milkvetch (Astragalus lutosus), oilshale columbine (Aquilegia barnebyi), Barneby’s thistle (Cirsium barnebyi), oilshale cryptantha (Cryptantha barnebyi), Graham’s cryptantha (Cryptantha grahamii), Rollins’ cryptantha (Cryptantha rollinsii), ephedra buckwheat (Eriogonum ephedroides), and White River beardtongue (Pensemon scariosus var. albifluvis). (C) Intact, surrounding, native plant community to support pollinators and protect from the encroachment of invasive weeds and other potential threats. (ii) Slopes and topography. (A) Southwest- to western-facing slopes. (B) Slopes of less than 40 degrees; average slope of 17.6 degrees. (iii) Soils and geology. (A) Parachute Creek Member and other upper members of the Green River Geologic Formation. (B) Appropriate soil morphology characterized by shallow soils with virtually no soil horizon development, with a surface usually covered by broken shale channers or light clay derived from the thinly bedded shale. (C) Intact soils with minimal anthropogenic disturbance (at or below current levels) within Graham’s beardtongue occupied habitat and nearby plant communities. (iv) Climate. A cold desert climate with the same conditions under which the species evolved and is typical for the area. Annual precipitation of 15 to 30 cm (6 to 12 inches) with most precipitation in spring and fall and snow cover from December through March. Average winter low temperature of ¥14 °C (7 °F) and average summer high of 34 °C (93 (°F)) with at least 45 PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 47849 to 90 consecutive days less than 4 °C (40 °F). (v) Habitat for pollinators. (A) Ground and twig nesting areas for pollinators. A diverse mosaic of native plant communities that include flowering plants that provide nectar and pollen for a wide array of pollinator species. (B) Connectivity between areas allowing pollinators to move from one site to the next within each population. (C) A 700-m (2,297-ft) area beyond occupied habitat to conserve the pollinators essential for plant reproduction. (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 entry. (4) Critical habitat map units. Data layers defining map units were created by using satellite imagery (Bing 2012 Aerial Imagery basemap provided with ArcMap10, NAIP 2011 imagery). Units were mapped using NAD 83 Universal Transverse Mercatore (UTM), Zone 12 N coordinates. Location information came from a wide array of sources. A habitat model created by the Colorado Natural Heritage Program was also used. The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. On the index map, critical habitat is delineated by gray shading. Boxes around the gray shading indicate only which polygons are included within the same unit and do not delineate critical habitat boundaries. 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/ utahfieldoffice/), on https:// www.regulations.gov at Docket No. FWS–R6–ES–2013–0082, 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 E:\FR\FM\06AUP2.SGM 06AUP2 Federal Register / Vol. 78, No. 151 / Tuesday, August 6, 2013 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS2 (6) Unit 1: Sand Wash, Duchesne and Uintah Counties, Utah. Map of Subunits VerDate Mar<15>2010 19:56 Aug 05, 2013 Jkt 229001 1A, 1B, 1C, 1D, 1E, 1F, 1G, 1H, and 1I follows: PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 E:\FR\FM\06AUP2.SGM 06AUP2 EP06AU13.008</GPH> 47850 Federal Register / Vol. 78, No. 151 / Tuesday, August 6, 2013 / Proposed Rules 47851 VerDate Mar<15>2010 19:56 Aug 05, 2013 Jkt 229001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 E:\FR\FM\06AUP2.SGM 06AUP2 EP06AU13.009</GPH> tkelley on DSK3SPTVN1PROD with PROPOSALS2 (7) Unit 2: Seep Ridge, Uintah County, Utah. Map of Subunits 2A, 2B, 2C, 2D, 2E, 2F, 2G, 2H, 2I, and 2J follows: Federal Register / Vol. 78, No. 151 / Tuesday, August 6, 2013 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS2 (8) Unit 3: Evacuation Creek, Uintah County, Utah, and Rio Blanco County, VerDate Mar<15>2010 19:56 Aug 05, 2013 Jkt 229001 Colorado. Map of Subunits 3A, 3B, 3C, and 3D follows: PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 E:\FR\FM\06AUP2.SGM 06AUP2 EP06AU13.010</GPH> 47852 Federal Register / Vol. 78, No. 151 / Tuesday, August 6, 2013 / Proposed Rules 47853 VerDate Mar<15>2010 19:56 Aug 05, 2013 Jkt 229001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 E:\FR\FM\06AUP2.SGM 06AUP2 EP06AU13.011</GPH> tkelley on DSK3SPTVN1PROD with PROPOSALS2 (9) Unit 4: White River, Uintah County, Utah. Map of Subunits 4A, 4B, 4C, 4D, 5A, 5B, and 5C follows: Federal Register / Vol. 78, No. 151 / Tuesday, August 6, 2013 / Proposed Rules (10) Unit 5: Raven Ridge, Rio Blanco County, Colorado. Map of Unit 5 is provided at paragraph (a)(9) of this entry. Family Plantaginaceae: Penstemon scariosus var. albifluvis (White River beardtongue) (1) Critical habitat units are depicted for Uintah County, Utah, and Rio Blanco County, Colorado, on the maps below. VerDate Mar<15>2010 19:56 Aug 05, 2013 Jkt 229001 (2) Within these areas, the primary constituent elements of the physical or biological features essential to the conservation of White River beardtongue consist of: (i) Plant community. (A) Barren areas with little, but diverse, plant cover. (B) Presence of dwarf shrubs and cushion-like, oil shale endemic plants, including Dragon milkvetch (Astragalus lutosus), oilshale columbine (Aquilegia PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 barnebyi), Barneby’s thistle (Cirsium barnebyi), oilshale cryptantha (Cryptantha barnebyi), Graham’s cryptantha (Cryptantha grahamii), Rollins’ cryptantha (Cryptantha rollinsii), ephedra buckwheat (Eriogonum ephedroides), and occasionally Graham’s beardtongue (Penstemon grahamii). (C) Intact, surrounding, native plant community to support pollinators and protect from the encroachment of E:\FR\FM\06AUP2.SGM 06AUP2 EP06AU13.012</GPH> tkelley on DSK3SPTVN1PROD with PROPOSALS2 47854 Federal Register / Vol. 78, No. 151 / Tuesday, August 6, 2013 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS2 invasive weeds and other potential threats. (ii) Slopes and topography. (A) South- to southwest-facing slopes. (B) Slopes of less than 33 degrees; average slope of 19.2 degrees. (iii) Soils and geology. (A) Parachute Creek Member and other upper members of the Green River Geologic Formation. (B) Appropriate soil morphology characterized by shallow soils with virtually no soil horizon development, with a surface usually covered by broken shale channers or light clay derived from the thinly bedded shale. (C) Intact soils with minimal anthropogenic disturbance (at or below current levels) within White River beardtongue occupied habitat and nearby plant communities. (iv) Climate. A cold desert climate with the same conditions under which the species evolved and is typical for the area. Annual precipitation of 15 to 30 cm (6 to 12 inches) with most precipitation in spring and fall and snow cover from December through March. Average winter low temperature VerDate Mar<15>2010 19:56 Aug 05, 2013 Jkt 229001 of ¥14 °C (7 °F) and average summer high of 34 °C (93 (°F)) with at least 45 to 90 consecutive days less than 4 °C (40 °F). (v) Habitat for pollinators. (A) Ground and twig nesting areas for pollinators. A diverse mosaic of native plant communities that include flowering plants that provide nectar and pollen for a wide array of pollinator species. (B) Connectivity between areas allowing pollinators to move from one site to the next within each population. (C) A 500-m (1,640-ft) area beyond occupied habitat to conserve the pollinators essential for plant reproduction. (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 entry. (4) Critical habitat map units. Data layers defining map units were created by using satellite imagery (Bing 2012 Aerial Imagery basemap provided with PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 47855 ArcMap10, NAIP 2011 imagery). Units were mapped using NAD 83 Universal Transverse Mercatore (UTM), Zone 12 N coordinates. Location information came from a wide array of sources. The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. On the index map, critical habitat is delineated by gray shading. Boxes around the gray shading indicate only which polygons are included within the same unit and do not delineate critical habitat boundaries. 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/ utahfieldoffice/), on https:// www.regulations.gov at Docket No. FWS–R6–ES–2013–0082, 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: E:\FR\FM\06AUP2.SGM 06AUP2 Federal Register / Vol. 78, No. 151 / Tuesday, August 6, 2013 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS2 (6) Unit 1: North Evacuation Creek, Uintah County, Utah, and Rio Blanco County, Colorado. Map of Subunits 1A, VerDate Mar<15>2010 19:56 Aug 05, 2013 Jkt 229001 1B, 1C, 1D, 1E, 1F, 1G, 1H, and 1I follows: PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 E:\FR\FM\06AUP2.SGM 06AUP2 EP06AU13.013</GPH> 47856 Federal Register / Vol. 78, No. 151 / Tuesday, August 6, 2013 / Proposed Rules VerDate Mar<15>2010 19:56 Aug 05, 2013 Jkt 229001 2D, 2E, 2F, 2G, 2H, 2I, 2J, 2K, 2L, 2M and Unit 3 follows: PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 E:\FR\FM\06AUP2.SGM 06AUP2 EP06AU13.014</GPH> tkelley on DSK3SPTVN1PROD with PROPOSALS2 (7) Unit 2: Weaver Ridge, Uintah County, Utah, and Rio Blanco County, Colorado. Map of Subunits 2A, 2B, 2C, 47857 47858 Federal Register / Vol. 78, No. 151 / Tuesday, August 6, 2013 / Proposed Rules 3 is provided at paragraph (a)(7) of this entry. * * * * * Dated: July 18, 2013. Rachel Jacobson, Principal Deputy Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2013–18335 Filed 8–5–13; 8:45 am] BILLING CODE 4310–55–C VerDate Mar<15>2010 19:56 Aug 05, 2013 Jkt 229001 PO 00000 Frm 00028 Fmt 4701 Sfmt 9990 E:\FR\FM\06AUP2.SGM 06AUP2 EP06AU13.015</GPH> tkelley on DSK3SPTVN1PROD with PROPOSALS2 (8) Unit 3: South Raven Ridge, Rio Blanco County, Colorado. Map of Unit

Agencies

[Federal Register Volume 78, Number 151 (Tuesday, August 6, 2013)]
[Proposed Rules]
[Pages 47831-47858]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-18335]

[[Page 47831]]

Vol. 78

Tuesday,

No. 151

August 6, 2013

Part II

Department of the Interior

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Fish and Wildlife Service

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50 CFR Part 17

Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for Graham's Beardtongue (Penstemon grahamii) and White River
Beardtongue (Penstemon scariosus var. albifluvis); Proposed Rule

Federal Register / Vol. 78, No. 151 / Tuesday, August 6, 2013 /
Proposed Rules

[[Page 47832]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R6-ES-2013-0082; 4500030113]
RIN 1018-AZ61

Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Graham's Beardtongue (>Penstemon grahamii) and
White River Beardtongue (Penstemon scariosus var. albifluvis)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, propose to designate
critical habitat for Graham's beardtongue (Penstemon grahamii) and
White River beardtongue (Penstemon scariosus var. albifluvis) under the
Endangered Species Act of 1973, as amended (Act). We are proposing
approximately 27,502 hectares (67,959 acres) for designation as
critical habitat for Graham's beardtongue in Duchesne and Uintah
Counties in Utah and Rio Blanco County in Colorado. We are proposing
approximately 6,036 hectares (14,914 acres) for designation as critical
habitat for White River beardtongue in Duchesne and Uintah Counties in
Utah and Rio Blanco County in Colorado. If we finalize this rule as
proposed, it will extend the Act's protections to these species'
critical habitats.

DATES: We will accept comments received or postmarked on or before
October 7, 2013. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES section, below) must be received by
11:59 p.m. Eastern Time on the closing date. We must receive requests
for public hearings, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by September 20, 2013.

ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. Search for Docket No. FWS-R6-ES-2013-0082, 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-R6-ES-2013-0082; 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 Information Requested section below for more information).
The coordinates or plot points or both from which the maps are
generated are included in the administrative record for this critical
habitat designation and are available at https://www.fws.gov/utahfieldoffice under Latest News, https://www.regulations.gov at Docket
No. FWS-R6-ES-2013-0082, and at the Utah Ecological Services Field
Office (see FOR FURTHER INFORMATION CONTACT). Any additional tools or
supporting information that we may develop for this critical habitat
designation 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: Larry Crist, Field Supervisor, U.S.
Fish and Wildlife Service, Utah Ecological Services Field Office, 2369
West Orton Circle, Suite 50, West Valley City, UT 84119; by telephone
at 801-975-3330; or by facsimile at 801-975-3331. If you use a
telecommunications device for the deaf (TDD), call the Federal
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule. This is a proposed rule to designate
critical habitat for two plant taxa, Graham's beardtongue (Penstemon
grahamii) and White River beardtongue (P. scariosus var. albifluvis),
which are proposed as threatened species under the Endangered Species
Act (Act). A proposed rule to list Graham's beardtongue and White River
beardtongue as threatened species is published elsewhere in today's
Federal Register. Under the Act, any species that is determined to be
an endangered or threatened species requires critical habitat to be
designated, to the maximum extent prudent and determinable.
Designations and revisions of critical habitat can only be completed by
issuing a rule.
The basis for our action. Under the Endangered Species Act, any
species that is determined to be an endangered or threatened species
shall, to the maximum extent prudent and determinable, have habitat
designated that is considered to be critical habitat.
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 she determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless she 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.
We are preparing an economic analysis of the proposed designations
of critical habitat. In order to consider economic impacts, we are
preparing an analysis of the economic impacts of the proposed critical
habitat designations and related factors. We will announce the
availability of the draft economic analysis as soon as it is completed,
at which time we will seek additional public review and comment.
We will seek peer review. We are seeking comments from independent
specialists to ensure that our critical habitat proposal is based on
scientifically sound data and analyses. We have invited these peer
reviewers to comment on our specific assumptions and conclusions in
this critical habitat proposal. Because we will consider all comments
and information we receive during the comment period, our final rule
may differ from this proposal.

Information Requested

We intend that any final action resulting from this proposed rule
will be based on the best scientific data available and be as accurate
and as effective as possible. Therefore, we request comments or
information from other concerned government agencies, the scientific
community, industry, or any other interested party concerning this
proposed rule. We particularly seek comments regarding:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the 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.
(2) Specific information on:

[[Page 47833]]

(a) The amount and distribution of Graham's beardtongue and White
River beardtongue occupied and suitable habitat;
(b) Areas that were occupied at the time of listing (or are
currently occupied) and that contain features essential to the
conservation of the species that should be included in the designation
and why;
(c) What areas not occupied at the time of listing are essential
for the conservation of the species and why;
(d) What may constitute ``physical or biological features essential
to the conservation of the species,'' within the geographical range
currently occupied by the species;
(e) Where the ``physical or biological features essential to the
conservation of the species,'' features are currently found;
(f) Information indicating how these species respond to natural and
anthropogenic disturbances; and
(g) 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.
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(4) Information on the projected and reasonably likely impacts of
climate change on Graham's and White River beardtongues and proposed
critical habitat.
(5) 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.
(6) 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.
(7) 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.
(8) The likelihood of adverse social reactions to the designation
of critical habitat and how the consequences of such reactions, if
likely to occur, would relate to the conservation and regulatory
benefits of the proposed critical habitat designation.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
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)(2) of the Act directs that
critical habitat designations be made based on the best scientific data
available and after consideration of economic and other relevant
impacts.
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.
We will post your entire comment--including your personal
identifying information--on https://www.regulations.gov. You may request
at the top of your document that we withhold personal information such
as your street address, phone number, or email address from public
review; however, we cannot guarantee that we will be able to do so.
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, Utah Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).

Previous Federal Actions

Elsewhere in today's Federal Register, we propose to list Graham's
beardtongue and White River beardtongue as threatened species under the
Act. Please see this proposed listing rule for a complete history of
previous Federal actions for these two plants.

Background

We intend to discuss only those topics directly relevant to the
designation of critical habitat in this proposed rule. For more
information on Graham's beardtongue and White River beardtongue, refer
to the proposed rule to list these species, also published in today's
Federal Register.
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 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 geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or

[[Page 47834]]

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 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 are
those specific elements of the physical or biological features that
provide for a species' life-history processes and 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 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. 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
geographical 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(b)(2) 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 determine 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 articles in peer-reviewed journals,
conservation plans developed by States and counties, scientific status
surveys and studies, biological assessments, or other unpublished
materials and expert opinion or personal knowledge.
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. Areas that are important to the conservation
of the species, both inside and outside the critical habitat
designation, will 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) section 9 of the Act's prohibitions on taking any
individual of the species, including taking caused by actions that
affect habitat. 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 will 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 will 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.

Prudency Determination

Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12), require that, to the maximum extent
prudent and determinable, the Secretary shall designate critical
habitat at the time the species is determined to be an endangered or
threatened species. Our regulations (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 human activity,
and identification of critical habitat can be expected to increase the
degree of threat to the species, or
(2) Such designation of critical habitat would not be beneficial to
the species.
There is no imminent threat of take attributed to collection or
vandalism for either of these species, and identification and mapping
of critical habitat is not expected to initiate any such threat. 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. Here, the
potential benefits of designation include: (1) Triggering consultation
under section 7 of the Act, for actions in which there may be a Federal
nexus where it would not otherwise occur because, for example, the
critical habitat has become unoccupied or the occupancy is in question;
(2) focusing conservation activities on the species' most essential
habitat features and areas; and (3) providing educational benefits to
State or County governments or private entities. Therefore, because we
determined that the designation of critical habitat will not likely
increase the degree of threat to the species and may provide some
measure of benefit, we find that designation of critical habitat is
prudent for Graham's beardtongue and White River beardtongue.

Critical Habitat Determinability

Having determined that designation is prudent, under section
4(a)(3) of the Act we must find whether critical habitat for these two
species is determinable. Our regulations at 50 CFR 424.12(a)(2) state
that critical habitat is not determinable when one or both of the
following situations exist:
(i) Information sufficient to perform required analyses of the
impacts of the designation is lacking, or
(ii) The biological needs of the species are not sufficiently well
known to permit identification of an area as critical habitat.
When critical habitat is not determinable, the Act allows the
Service an additional year to publish a critical habitat designation
(16 U.S.C. 1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological
needs of the species and habitat characteristics where these species
are located. This and other information represent the best scientific
data available and led us to conclude that the designation of critical
habitat is determinable for Graham's beardtongue and White River
beardtongue.

[[Page 47835]]

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
geographical 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 historic geographical and ecological
distributions of a species.
We derive the specific physical and biological features essential
for Graham's beardtongue and White River beardtongue from studies of
these species' habitat, ecology, and life history as described in our
proposal to list the species as threatened published elsewhere in
today's Federal Register.
Graham's Beardtongue
We determined that Graham's beardtongue requires the physical and
biological features described below.
Space for Individual and Population Growth and for Normal Behavior
Plant Community. Graham's beardtongue is associated with a suite of
species similarly adapted to xeric growing conditions on highly basic
calcareous (containing calcium carbonate) shale soils (for more
discussion, see ``Soils'' below). The vascular plant species most
frequently associated with Graham's beardtongue include saline wild-rye
(Leymus salina), spiny greasebush (Glossopetalon spinescens var.
meionandra), Utah juniper (Juniperus osteosperma), shadscale saltbush
(Atriplex confertifolia), twoneedle pi[ntilde]on (Pinus edulis),
mountain thistle (Cirsium scopulorum), ephedra buckwheat (Eriogonum
ephedroides), sulfur flower buckwheat (Eriogonum umbellatum), Colorado
feverfew (Parthenium ligulatum), and Fremont's wild-buckwheat
(Eriogonum corymbosum) (UNHP 2013, entire). Graham's beardtongue sites
at higher elevation can be found within sparse pi[ntilde]on-juniper
woodland dominated by Utah juniper and pi[ntilde]on pine. Graham's
beardtongue sites at lower elevations are occasionally within a sparse
desert shrubland dominated by shadscale saltbush.
Within these plant communities, Graham's beardtongue is found in
open or sparsely vegetated, raw shale areas. Dwarf shrubs and cushion-
like herbs make up the distinctive plant community type occurring on
these calcareous shale sites. The following species are in part co-
occurring with Graham's beardtongue and are similarly endemic and
totally restricted to the Green River Geologic Formation: Dragon
milkvetch (Astragalus lutosus), oilshale columbine (Aquilegia
barnebyi), Barneby's thistle (Cirsium barnebyi), oilshale cryptantha
(Cryptantha barnebyi), Graham's cryptantha (Cryptantha grahamii),
Rollins' cryptantha (Cryptantha rollinsii), ephedra buckwheat, and
White River beardtongue. Intact native plant communities immediately
adjacent to Graham's beardtongue shale habitat are also important to
prevent the encroachment of invasive weeds into this habitat (Service
2012b, entire).
The long-term viability of Graham's beardtongue is dependent on
having a diverse plant community that supports pollinators, even if
that plant community is sparse (see Reproduction, below). Flowering in
Graham's beardtongue can be highly unreliable year-to-year, so
pollinators of this species are likely to rely on nearby plants as a
food source in years when Graham's beardtongue does not flower very
much (Dodge and Yates 2008, p. 30). Therefore, based on the information
above, we identify sparsely vegetated, barren shales with a diverse
plant community dominated by the dwarf shrubs, cushion-like plants, and
endemic species listed above to be a physical or biological feature for
this species.
Slope and Topography. Throughout this proposed rule, we will refer
to points, which are data that represent a physical location where one
or more plants were observed on the ground. Point data are usually
collected by GPS and stored as a ``record'' in a geographic information
system (GIS) database. We mapped all plant points and grouped them into
populations following standardized methods used by the national network
of Natural Heritage Programs (see the proposed listing rule published
elsewhere in today's Federal Register). About a third of all known
Graham's beardtongue point locations in our files grow on slopes that
are 10 degrees or less, with an average slope across all known points
of 17.6 degrees (Service 2013, p. 2). Graham's beardtongue grows on
slopes ranging from 0 to 73 degrees, although occurrences on steeper
slopes are rare. Ninety-five percent of the known points are on slopes
that are 40 degrees or less (GIS analysis 2013). Individuals of
Graham's beardtongue usually grow on southwest-facing exposures (GIS
analysis 2013). Therefore, we identify southwest-facing slopes of less
than 40 degrees to be a physical or biological feature for this
species.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Soils and Geology. Graham's beardtongue is found on highly basic
soils derived from strata of the Green River Formation (Shultz and Mutz
1979, p. 40; Neese and Smith 1982, p. 64). These soils provide the root
microhabitat essential for the species' growth and reproduction. These
soils are very shallow with virtually no soil horizon development. The
little soil above the consolidated calcareous shale rock of its parent
material is usually very light clay derived from thinly bedded shale.
The soil surface is covered with shale channers (thin, flat fragments
up to 15 cm (6 in) long, usually less than 5 cm (2 in) across),
underlain with larger shale fragments to a depth of 5 to 10 cm (2 to 4
in). The shale channers usually weather to a light tan color. Freshly
broken channers exhibit a very dark brown interior due to the high
organic content of the kerogen (the hydrocarbons from plant material
that are the main source of oil in oil shales).
The majority of Graham's beardtongue populations and those with the
largest numbers of plants occur on the oil-shale-rich Mahogany ledge,
which is the outcrop of the richest oil shale bed of the Parachute
Creek Member of the Green River Formation (Cashion 1967, p. 1; Shultz
and Mutz 1979, p. 40). Water can collect (called ``perching'') on the
Mahogany zone, and Graham's beardtongue may be adapted to access water
through this natural process (Shultz and Mutz 1979, p. 40; Service
2012b, entire). The remaining occurrences are associated with upper
members of the Green River Formation as described by Weiss and Witkind
(Weiss et al. 1990, entire; Remy 1992, p. BB18). Therefore, based on
the information above, we identify the upper Green River Formation oil
shale soils as a physical or biological feature for this species.
Climate. Graham's beardtongue is adapted to a cold desert climate,
with

[[Page 47836]]

most precipitation occurring in the spring and fall, and snow cover
from December through March (Western Regional Climate Center 2013,
entire). Winter snow cover may be important for this species by
preventing severe frost damage to plants during the coldest months
(Bannister et al. 2005, pp. 250-1). Temperatures can be extreme, with
average summer highs around 34 degrees Celsius ([deg]C) (93 degrees
Fahrenheit ([deg]F)) and average winter lows around -14 [deg]C (7
[deg]F) (Western Regional Climate Center 2013, entire). Graham's
beardtongue seeds need at least 45 to 90 consecutive days at less than
4 [deg]C (40 [deg]F) in order to germinate (Wilcox et al. undated, p.
5). Average annual precipitation across the range of this species
varies from 15 to 30 cm (6 to 12 in) (GIS analysis 2013). Because
Graham's beardtongue evolved under these climatic conditions, we
identify suitable precipitation--15 to 30 cm (6 to 12 in) with most
precipitation in spring and fall and snow cover from December through
March--and suitable temperatures--average winter low temperature of -14
[deg]C (7 [deg]F) and average summer high of 34 [deg]C (93 ([deg]F))
with at least 45 to 90 consecutive days less than 4 [deg]C (40
[deg]F)--as physical or biological features for this plant. These
climatic conditions are likely influenced, in part, by elevation.
Cover or Shelter
Seeds and seedlings of Graham's beardtongue require the right
microclimate for germination and establishment. However, we do not know
the specific requirements of Graham's beardtongue for suitable
microsites, nor are these features likely to be manageable as a
physical or biological feature for this species. Suitable conditions
for seed germination and seedling establishment are further described
in the Plant Community and Soils and Geology sections, above.
Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring
Reproduction. Graham's beardtongue can produce seeds through self-
pollination, but is much more reproductively successful when it is
cross-pollinated (Dodge and Yates 2009, p. 14). At least 11 different
pollinator species visit Graham's beardtongue (England 2003, entire;
Lewinsohn and Tepedino 2007, p. 235; Dodge and Yates 2008, p. 31), and
there is no evidence of pollinator limitation for this species (Dodge
and Yates 2008, p. 14). Pollinators include small to medium-sized
solitary bees in the following genera: Agopostemon, Anthophora,
Lasioglossum, and Osmia. A Penstemon-specializing wasp, Pseudomasaris
vespoides, is likely the most common pollinator for P.grahamii
(Lewinsohn and Tepedino 2005, p. 17). Larger bumblebees, such as Bombus
huntii (Hunt's bumblebee), are also thought to pollinate Graham's
beardtongue (England 2003, entire). These bees are mostly ground and
twig-nesting bees (Dodge and Yates 2008, pp. 30-1).
Pollinators generally need a diversity of native plants whose
blooming times overlap, nesting and egg-laying sites with appropriate
nesting materials, undisturbed shelter for overwintering, and a
landscape free of poisonous chemicals (Shepherd et al. 2003, pp. 49-
50). Intact native plant communities that connect populations of rare
plants are also important, as anthropogenic disturbances may be a
barrier to pollinator movement (Bhattacharya et al. 2003, pp. 42-43).
As previously described (see Space for Individual and Population Growth
and for Normal Behavior, above), Graham's beardtongue individuals are
sparsely distributed and flowering can be irregular. Populations of
other beardtongue species in areas adjacent to Graham's beardtongue
occupied habitat are essential to support the pollinating wasp's
(Pseudomasaris vespoides) population during periods of poor Graham's
beardtongue floral availability (Lewinsohn and Tepedino 2007, p. 236).
Protecting these species and intact native plant communities maintains
connectivity between areas, allowing pollinators to move between or
within populations. These beardtongue species include thickleaf
beardtongue (Penstemon pachyphyllus), Fremont's beardtongue (P.
fremontii), Rocky Mountain beardtongue (P. strictus), and White River
beardtongue (P. scariosus, not to be confused with P. scariosus var.
albifluvis). Because the evidence presented above indicates that
pollinators are necessary to maximize successful reproduction of
Graham's beardtongue, we have identified pollinators and their
associated habitats as a physical or biological feature for this
species.
In general, pollinators will focus on small areas where floral
resources are abundant; however, occasional longer distance pollination
will occur. Typically, pollinators fly distances that are in relation
to their body sizes, with smaller pollinators flying shorter distances
than larger pollinators (Greenleaf et al. 2007, pp. 589-96). Using
available information, we extrapolated likely travel distances of
Graham's beardtongue pollinators based on their medium to large body
sizes. The body size of Graham's beardtongue pollinators allows for
travel distances of approximately 700 m (2,297 ft) (Service 2012a, p.
8).
If a pollinator can fly long distances, pollen transfer is also
possible across these distances. In the interest of protecting
pollinators of Graham's beardtongue, and thus genetic flow between
individuals and reproduction for this species, we identified a 700-m
(2,297-ft) area beyond occupied habitat to conserve the pollinators
essential for plant reproduction. These pollinator habitat areas have
the added benefit of potentially providing more habitat for Graham's
beardtongue to expand into, and add protection against encroachment by
invasive weeds or other disturbance effects.
Habitats Protected from Disturbance or Representative of the Historic
Geographical and Ecological Distributions of the Species
Intact Soils. Anthropogenic habitat fragmentation within Graham's
beardtongue occupied habitat has not been severe. However,
fragmentation is likely to increase in the future without additional
protection. As an oil shale endemic, Graham's beardtongue is limited to
a specific soil type and structure (see Soils and Geology, above). It
is likely that once Graham's beardtongue habitat is disturbed through
soil-disturbing activities such as oil shale development (see I. Energy
Exploration and Development in our proposed listing rule published
elsewhere in today's Federal Register), it is essentially lost to the
species. In addition, restoration of native species in arid climates is
difficult (Monsen 2004, p. 29). Maintaining intact shale soils where
Graham's beardtongue grows is important to ensure viability of the
species. We have identified intact soils within Graham's beardtongue
occupied habitat and nearby plant communities is an important physical
or biological feature for this species.
White River Beardtongue
We have determined that White River beardtongue requires the
physical and biological features described below.
Space for Individual and Population Growth and for Normal Behavior
Plant Community. White River beardtongue is found in semi-barren
openings of mixed desert shrub and pi[ntilde]on-juniper communities.
The vascular plant species most frequently associated with White River
beardtongue include Barneby's thistle, saline wild-rye, spiny
greasebush, Utah juniper, twoneedle pi[ntilde]on, shadscale saltbush,
Dragon milkvetch, Barneby's

[[Page 47837]]

thistle, Barneby catseye, rayless tansy-aster (Xanthisma
grindelioides), and Indian ricegrass (Achnatherum hymenoides) (UNHP
2013, entire).
Occasionally White River beardtongue is found with oilshale
columbine and Graham's beardtongue (Franklin 1995, p. 5). Many of the
other oil shale endemics found growing with Graham's beardtongue can be
found with White River beardtongue, although White River beardtongue
grows in slightly less sparse areas (see Plant Community for Graham's
beardtongue, above, for a complete list (Neese and Smith 1982, p. 58)).
We consider sparsely vegetated, barren shale dominated by the dwarf
shrubs, cushion-like plants, and endemic species listed above to be a
physical or biological feature for this species.
Slope and Topography. About one-fifth of all known point locations
of White River beardtongue are on slopes of 10 degrees or less, with an
average slope for all known points of 19.2 degrees (Service 2013, p.
3). This is somewhat steeper than the slopes on which Graham's
beardtongue grows, although 95 percent of the known points are on
slopes that are 33 degrees or less (GIS analysis 2013). Field
observations also indicate that White River beardtongue grows on
steeper slopes than Graham's beardtongue (Brunson 2012; Service 2012),
but this hypothesis should be tested. White River beardtongue
individuals usually grow on southwest-facing exposures (GIS analysis
2013). Therefore, we identify southwest-facing slope of less than 33
degrees to be a physical or biological feature for this species.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Soils and Geology. White River beardtongue is restricted to
calcareous soils derived from oil shale barrens of the Parachute Creek
Member and other members of the Green River Formation in the Uinta
Basin of northeastern Utah and adjacent Colorado. White River
beardtongue is also associated with the Mahogany ledge (see Soils and
Geology for Graham's beardtongue, above, for more details). White River
beardtongue overlaps with Graham's beardtongue at some locations, and
the soil types are basically the same, although White River beardtongue
can also be found in red, fine-textured, shallow, soils. Based on the
information above, we identify the Green River Formation oil shale
soils as a physical or biological feature for this species.
Climate. White River beardtongue is adapted to the same climate as
Graham's beardtongue--a cold desert climate, with most precipitation
occurring in the spring and fall, and snow cover from December through
March (Western Regional Climate Center 2013, entire). Winter snow cover
may be important for this species as it can prevent severe frost damage
to plants during the winter months (Bannister et al. 2005, p. 250-1).
Temperatures can be extreme, with average summer highs around 34
degrees Celsius ([deg]C) (93 degrees Fahrenheit ([deg]F)) and average
winter lows around -14 [deg]C (7[emsp14][deg]F) (Western Regional
Climate Center 2013, entire). White River beardtongue seeds need at
least 45 to 90 consecutive days at less than 4 [deg]C
(40[emsp14][deg]F) to germinate (Wilcox et al. undated, p. 5). Average
annual precipitation across the range of this species varies from 15 to
30 cm (6 to 12 in) (GIS analysis 2013). Because White River beardtongue
evolved under these climatic conditions, we identify suitable
precipitation--15 to 30 cm (6 to 12 in) with most precipitation in
spring and fall and snow cover from December through March--and
suitable temperatures--average winter low temperature of -14 [deg]C
(7[emsp14][deg]F) and average summer high of 34 [deg]C (93 ([deg]F))
with at least 45 to 90 consecutive days less than 4 [deg]C
(40[emsp14][deg]F)--as physical or biological features for this plant.
These climatic conditions are likely influenced, in part, by elevation.
Cover or Shelter
Seeds and seedlings of White River beardtongue require the right
microclimate for germination and establishment. However, we do not know
the specific requirements of White River beardtongue for suitable
microsites, nor are these features likely to be manageable as a
physical or biological feature for this species. Suitable conditions
for seed germination and seedling establishment are further described
in the Plant Community and Soils and Geology sections, above.
Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring
Reproduction. Although White River beardtongue can produce seed
through self-pollination, cross-pollination produces the most seed and
fruits (Lewinsohn and Tepedino 2007, p. 234). At least 15 different
pollinator species visit White River beardtongue, and there is no
evidence of pollinator limitation for this species (Lewinsohn and
Tepedino 2007). Pollinators include small to medium native solitary
bees including Anthophora, Ceratina (carpenter bees), Halictus (sweat
bees), Lasioglossum, and Osmia species. Pseudomasaris vespoides (wasp)
also pollinates White River beardtongue. These bees are mostly ground
and twig-nesting bees (Dodge and Yates 2008, p. 30-1).
Pollinators generally need a diversity of native plants whose
blooming times overlap, nesting and egg-laying sites with appropriate
nesting materials, undisturbed shelter for overwintering, and a
landscape free of poisonous chemicals (Shepherd et al. 2003, pp. 49-
50). Intact native plant communities that connect populations of rare
plants are also important, as anthropogenic disturbances may be a
barrier to pollinator movement (Bhattacharya et al. 2003, p. 42-3).
Flowering in White River beardtongue is not as unreliable as that for
Graham's beardtongue, although maintaining plant communities adjacent
to occupied habitat are still important to maintain a diversity of
pollinators (Tepedino et al. 1997, p. 246) and to maintain connectivity
between areas, allowing pollinators to move between sites within each
population. Because the evidence presented above indicates that
pollinators are necessary to maximize successful reproduction of White
River beardtongue, we consider pollinators and their associated
habitats as a physical or biological feature for this species.
Like Graham's beardtongue, we extrapolated likely travel distances
of White River beardtongue pollinators based on their small to medium
body sizes. A notable exception to pollinators observed on White River
beardtongue is that Bombus spp. and other large bees do not visit these
flowers. This observation is not surprising given the relatively
smaller size of the flower compared to other beardtongues like Graham's
beardtongue. In the interest of protecting pollinators of White River
beardtongue, and thus genetic flow between individuals and reproduction
for this species, we identified a 500-m (1,640-ft) area beyond occupied
habitat to conserve the pollinators essential for plant reproduction.
We based this distance on the fact that small to medium species visit
White River beardtongue, and these species are likely capable of
travelling a distance of 500 m (1,640 ft) between plants or from
nesting sites to plants. These pollinator habitat areas have the added
benefit of potentially providing more habitat for White River
beardtongue to expand into, and add protection against encroachment by
invasive weeds or other disturbance effects.

[[Page 47838]]

Habitats Protected From Disturbance or Representative of the Historic
Geographical and Ecological Distributions of the Species
Intact Soils. Anthropogenic habitat fragmentation within White
River beardtongue occupied habitat has not been severe. However,
fragmentation is likely to increase in the future without sufficient
protection. As an oil shale endemic, White River beardtongue is limited
to a specific soil type and structure (see Soils and Geology, above).
It is likely that once White River beardtongue's habitat is disturbed
through soil-removing activities such as oil shale development, it is
essentially lost to the species (see I. Energy Exploration and
Development in our proposed listing rule published elsewhere in today's
Federal Register). In addition, restoration of native species in arid
climates is difficult (Monsen 2004, p. 29). Maintaining intact shale
soils where White River beardtongue grows is important to ensure
viability of the species. We have identified intact soils within White
River beardtongue occupied habitat and nearby plant communities as an
important physical or biological feature for this species.
Primary Constituent Elements for Graham's Beardtongue
Under the Act and its implementing regulations, we are required to
identify the physical or biological features essential to the
conservation of Graham's beardtongue in areas occupied at the time of
listing, focusing on the features' primary constituent elements. We
consider primary constituent elements to be those specific elements of
the 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 Graham's beardtongue are:
(1) Plant community.
a. Barren areas with little, but diverse, plant cover.
b. Presence of dwarf shrubs and cushion-like, oil shale endemic
plants, including Dragon milkvetch (Astragalus lutosus), oilshale
columbine (Aquilegia barnebyi), Barneby's thistle (Cirsium barnebyi),
oilshale cryptantha (Cryptantha barnebyi), Graham's cryptantha
(Cryptantha grahamii), Rollins' cryptantha (Cryptantha rollinsii),
ephedra buckwheat (Eriogonum ephedroides), and White River beardtongue
(Penstemon scariosus var. albifluvis).
c. Intact, surrounding, native plant community to support
pollinators and protect from the encroachment of invasive weeds and
other potential threats.
(2) Slopes and topography.
a. Southwest- to western-facing slopes.
b. Slopes of less than 40 degrees; average slope of 17.6 degrees.
(3) Soils and geology.
a. Parachute Creek Member and other upper members of the Green
River Geologic Formation.
b. Appropriate soil morphology characterized by shallow soils with
virtually no soil horizon development, with a surface usually covered
by broken shale channers or light clay derived from the thinly bedded
shale.
c. Intact soils with minimal anthropogenic disturbance (at or below
current levels) within Graham's beardtongue occupied habitat and nearby
plant communities.
(4) Climate. A cold desert climate with the same conditions under
which the species evolved and is typical for the area. Annual
precipitation of 15 to 30 cm (6 to 12 inches) with most precipitation
in spring and fall and snow cover from December through March. Average
winter low temperature of -14 [deg]C (7[emsp14][deg]F) and average
summer high of 34 [deg]C (93 ([deg]F)) with at least 45 to 90
consecutive days less than 4 [deg]C (40[emsp14][deg]F).
(5) Habitat for pollinators.
a. Ground and twig nesting areas for pollinators. A diverse mosaic
of native plant communities that include flowering plants that provide
nectar and pollen for a wide array of pollinator species.
b. Connectivity between areas allowing pollinators to move from one
site to the next within each population.
c. A 700-m (2,297-ft) area beyond occupied habitat to conserve the
pollinators essential for plant reproduction.
Primary Constituent Elements for White River Beardtongue
Under the Act and its implementing regulations, we are required to
identify the physical or biological features essential to the
conservation of White River beardtongue in areas occupied at the time
of listing, focusing on the features' primary constituent elements. We
consider primary constituent elements to be those specific elements of
the physical or biological features that provide for a species' life-
history processes and are essential to the conservation of the species.
In addition, primary constituent elements for White River beardtongue
are nearly identical in some cases to those for Graham's beardtongue.
We note explicitly where differences exist.
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 White River beardtongue are:
(1) Plant community.
a. Barren areas with little, but diverse, plant cover.
b. Presence of dwarf shrubs and cushion-like, oil shale endemic
plants, including Dragon milkvetch (Astragalus lutosus), oilshale
columbine (Aquilegia barnebyi), Barneby's thistle (Cirsium barnebyi),
oilshale cryptantha (Cryptantha barnebyi), Graham's cryptantha
(Cryptantha grahamii), Rollins' cryptantha (Cryptantha rollinsii),
ephedra buckwheat (Eriogonum ephedroides), and occasionally Graham's
beardtongue (Penstemon grahamii).
c. Intact, surrounding, native plant community to support
pollinators and protect from the encroachment of invasive weeds and
other potential threats.
(2) Slopes and topography.
a. South- to southwest-facing slopes.
b. Slopes of less than 33 degrees; average slope of 19.2 degrees.
(3) Soils and geology.
a. Parachute Creek Member and other upper members of the Green
River Geologic Formation.
b. Appropriate soil morphology characterized by shallow soils with
virtually no soil horizon development, with a surface usually covered
by broken shale channers or light clay derived from the thinly bedded
shale.
c. Intact soils with minimal anthropogenic disturbance (at or below
current levels) within White River beardtongue occupied habitat and
nearby plant communities.
(4) Climate. A cold desert climate with the same conditions under
which the species evolved and is typical for the area. Annual
precipitation of 15 to 30 cm (6 to 12 inches) with most precipitation
in spring and fall and snow cover from December through March. Average
winter low temperature of -14 [deg]C (7[emsp14][deg]F) and average
summer high of 34 [deg]C (93 ([deg]F)) with at least 45 to 90
consecutive days less than 4 [deg]C (40[emsp14][deg]F).
(5) Habitat for pollinators.
a. Ground and twig nesting areas for pollinators. A diverse mosaic
of native plant communities that include flowering plants that provide
nectar and

[[Page 47839]]

pollen for a wide array of pollinator species.
b. Connectivity between areas allowing pollinators to move from one
site to the next within each population.
c. A 500-m (1,640-ft) area beyond occupied habitat to conserve the
pollinators essential for plant reproduction.

Special Management Considerations or Protection

When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection. A detailed discussion of the current and future threats to
Graham's beardtongue and White River beardtongue can be found in the
proposed listing rule, which is published elsewhere in today's Federal
Register. The primary threats impacting the physical and biological
features essential to the conservation of Graham's beardtongue and
White River beardtongue that may require special management
considerations or protection within the proposed critical habitat
include, but are not limited to, energy exploration and development,
the cumulative impacts of increased energy development, livestock
grazing, invasive weeds, small population sizes, and climate change
(for a complete discussion, please see our proposed listing rule
published elsewhere in today's Federal Register).
Special management considerations or protections are required
within critical habitat areas to address these threats. Management
activities that could ameliorate these threats include (but are not
limited to): Develop regulations and agreements to balance conservation
with energy development and minimize its effects in Graham's
beardtongue and White River beardtongue habitat; avoid placing roads
and energy facilities in habitats that would affect these species or
their pollinators; minimize livestock use that disturb the soil or
seeds; minimize habitat fragmentation; establish permanent conservation
easements or land acquisitions to protect the species on non-federal
lands; and eliminate or avoid activities that alter the morphology of
shale slopes.
These management activities will protect the primary constituent
elements for the species by preventing the loss of habitat and
individuals, preserving these species' habitats and soils, maintaining
native plant communities and natural levels of competition, and
protecting these species' reproduction by protecting their pollinators.

Criteria Used To Identify Critical Habitat

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 not proposing to designate any areas outside the geographical area
currently occupied by Graham's beardtongue or White River beardtongue
because occupied areas are sufficient for the conservation of these
species.
Conserving imperiled species can be accomplished by following the
three Rs: representation, resiliency, and redundancy (Shaffer and Stein
2000). Representation, or preserving some of everything, means
conserving not just a species but its associated plant communities,
pollinators, and pollinator habitats. We addressed representation
through our primary constituent elements for each species as discussed
above, specifically by ensuring sufficient habitat for their
pollinators. Resiliency and redundancy ensure there is enough of a
species so that it can survive into the future. Resiliency means
ensuring that the habitat is adequate for a species and its
representative components. Redundancy ensures an adequate number of
sites and individuals. This methodology has been widely accepted as a
reasonable conservation methodology (Tear et al. 2005, p. 841).
Critical habitat was identified by compiling all known locations
for each species and delineating suitable habitat adjacent to the known
locations to provide a sufficient area for pollinator habitat.
Pollinator habitat areas for Graham's beardtongue were delineated using
a 700-m (2,297-ft) distance from known locations. Pollinator habitat
areas for White River beardtongue were delineated using a 500-m (1,640-
ft) distance from known locations. These distances were based on how
far the primary pollinators can travel for each of the species (see
Reproduction above for each species for more information).
Given the total population numbers of each species, we believe the
areas we propose to designate as critical habitat for Graham's
beardtongue and White River beardtongue would also preserve redundancy
and resilience. As described in our listing proposed rule, published
elsewhere in today's Federal Register, White River beardtongue has
11,423 known plants distributed in 7 populations, and Graham's
beardtongue has 31,702 known plants distributed in 24 populations. We
conclude that both species are currently viable, but that their
viability will be substantially decreased in the future, mainly because
of the threat of energy development. We consider a species viable if it
can persist over the long term, thus avoiding extinction. A species can
be conserved (and is thus viable) if it has representation, resiliency,
and redundancy (Shaffer and Stein 2000), as explained earlier.
As described in our listing proposed rule, published elsewhere in
today's Federal Register, the total population of White River
beardtongue may be as high as 25,000 plants (Franklin 1995, entire);
additional surveys are likely to locate more plants and additional
populations within the boundaries of the proposed critical habitat. Our
proposed critical habitat includes all verified populations of both
species and additional suitable habitats into which the species
populations can expand. Therefore, we conclude that our proposed
critical habitat boundaries would be sufficient to ensure species
viability for both species over the long term.
When determining proposed critical habitat boundaries, we did not
attempt to avoid developed areas such as lands covered by buildings,
pavement, and other structures because minimal development exists
within habitat for these two species. Although any developed areas lack
the physical or biological features necessary for Graham's and White
River beardtongues, both of these species grow in remote areas that
have not yet experienced considerable development and, for the most
part, have few developed roads crossing through them at this time.
However, any developed lands occurring inside the critical habitat
boundaries shown on the maps of this proposed rule are excluded by text
in this proposed rule and are not proposed for designation as critical
habitat. Therefore, if the critical habitat is finalized as proposed, a
federal action involving already developed areas would not, in most
cases, trigger section 7 consultation.
We delineated the proposed critical habitat unit boundaries for
Graham's beardtongue and White River beardtongue using the following
steps:
(1) We mapped all plant points on file (using ArcMap 10.0) at the
Utah Natural

[[Page 47840]]

Heritage Program (UNHP), Colorado Natural Heritage Program (CNHP), and
the BLM (see the proposed listing rule published elsewhere in today's
Federal Register for more details). These data consist of point
locations collected over several decades by organizations, agencies, or
consultants.
(2) For Graham's beardtongue, we examined Bing Maps Aerial imagery
(provided with ArcMap 10.0 software) and excluded all GIS locations
that were collected prior to the year 2000, and that were farther than
50 m (164 ft) from suitable habitat. Locations collected prior to 2000
within 50 m (164 ft) of suitable habitat were retained in our dataset
(GIS analysis 2013). If it was not clear from looking at the aerial
imagery whether the point was in suitable habitat, we erred on the side
of the species and included the point in our proposed critical habitat
areas.
Through this process, we removed 15 point locations from our
Graham's beardtongue dataset. Most of the historical points that we
removed overlapped or were very close to recently collected data. We
removed a historical point from Carbon County from our proposed
critical habitat area that has not been revisited for more than 30
years, even though this is the only point in that county. We
acknowledge that there is potential habitat in the area, but this point
needs to be revisited to confirm whether the species is present near
this location.
For White River beardtongue, we did not remove any historical
points because they all appeared to be within or adjacent to suitable
habitat. The exception is 16 points from herbaria records ranging from
the vicinity of Bitter Creek west to Willow Creek, which we have not
confirmed as White River beardtongue and therefore do not include in
proposed critical habitat for this plant.
(3) For Graham's beardtongue data from Utah, we created proposed
critical habitat areas by including all pollinator habitat within 700 m
(2,297 ft) around each point. We then dissolved boundaries between the
overlapping polygons. We did not have as complete a dataset for
Colorado as for Utah, so we combined all of the point and polygon data
we received from the CNHP, and calculated pollinator habitat areas
within 700 m (2,297 ft) (see Sites for Breeding, Reproduction, or
Rearing (or Development) of Offspring, above). We also created our own
polygon to incorporate suitable habitat on Raven Ridge, which we
identified via aerial imagery.
We followed a similar protocol for White River beardtongue, but
instead created pollinator habitat areas within 500 m (1,640 ft) around
all points. We did this for both Utah and Colorado points.
(4) Critical habitat units are not one contiguous unit; rather,
each contains several polygons. Each polygon is a subunit containing
the PCEs within the larger unit that contain the essential features and
are occupied. Proposed units are separated from each other by either
relatively great distance or by geographic features. Units for Graham's
beardtongue are essentially the same as in the January 19, 2006,
proposed rule (71 FR 3158), although the proposed unit boundaries are
expanded slightly to include new data. Proposed units for White River
beardtongue are delineated based on geographic features that separated
polygons.
We are proposing for designation as critical habitat lands that we
have determined are occupied and contain sufficient elements of
physical or biological features to support life-history processes
essential for the conservation of Graham's and White River
beardtongues.
The proposed critical habitat designation is defined by the map or
maps, as modified by any accompanying regulatory text, presented at the
end of this document in the rule portion. We include more detailed
information on the boundaries of the critical habitat designation in
the preamble of this document. We will make the coordinates or plot
points that the maps are based on available to the public at https://www.regulations.gov at Docket No. FWS-R6-ES-2013-0082, on our Internet
site at https://www.fws.gov/utahfieldoffice, and at the field office
responsible for the designation (see FOR FURTHER INFORMATION CONTACT
above).

Proposed Critical Habitat Designation

Graham's beardtongue

We are proposing five units as critical habitat for Graham's
beardtongue, which are the same units we proposed in 2006, although the
boundaries of each unit have changed (71 FR 3158, January 19, 2006).
The critical habitat units we describe below constitute our best
assessment of areas that meet the definition of critical habitat for
Graham's beardtongue. The five units we propose as critical habitat
are: (1) Sand Wash, (2) Seep Ridge, (3) Evacuation Creek, (4) White
River, and (5) Raven Ridge. All of these units contain occupied
Graham's beardtongue habitat. The approximate acreage and land
ownership status of each proposed critical habitat unit is shown in
Table 1.

Table 1--Acreage and Land Ownership Status for the Proposed Critical Habitat Units for Graham's Beardtongue.
Area Estimates Reflect All Land Within Critical Habitat Unit Boundaries.
----------------------------------------------------------------------------------------------------------------
Critical habitat unit Land ownership Size of unit
----------------------------------------------------------------------------------------------------------------
1. Sand Wash............................ BLM........................ 3,056 ha (7,550 ac).
State...................... 27 ha (66 ac).
Private.................... 76 ha (189 ac).
------------------------------------------
Total................... 3,159 ha (7,805 ac).
----------------------------------------------------------------------------------------------------------------
2. Seep Ridge........................... BLM........................ 6,649 ha (16,430 ac).
State...................... 2,650 ha (6,549 ac).
Private.................... 862 ha (2,131 ac).
------------------------------------------
Total................... 10,162 ha (25,110 ac).
----------------------------------------------------------------------------------------------------------------
3. Evacuation Creek..................... BLM........................ 3,879 ha (9,586 ac).
State...................... 1,417 ha (3,502 ac).
Private.................... 1,632 ha (4,033 ac).
------------------------------------------
Total................... 6,929 ha (17,122 ac).
----------------------------------------------------------------------------------------------------------------
4. White River.......................... BLM........................ 2,243 ha (5,542 ac).

[[Page 47841]]

State...................... 401 ha (991 ac).
Private.................... 2,047 ha (5,059 ac).
------------------------------------------
Total................... 4,691 ha (11,592 ac).
----------------------------------------------------------------------------------------------------------------
5. Raven Ridge.......................... BLM........................ 2,257 ha (5,578 ac).
Private.................... 304 ha (752 ac).
Total................... 2,562 ha (6,330 ac).
----------------------------------------------------------------------------------------------------------------
Total Across All Units.................. BLM........................ 18,084 ha (44,686 ac).
State...................... 4,495 ha (11,108 ac).
Private.................... 4,921 ha (12,164 ac).
Total................... 27,502 ha (67,959 ac)
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

We present brief descriptions of the proposed units, and reasons
why they meet the definition of critical habitat for Graham's
beardtongue, below. The units are listed in order geographically west
to east, and north to south.
Unit 1: Sand Wash
The Sand Wash Unit is the westernmost proposed critical habitat
unit found in the vicinity of Sand Wash in southwestern Uintah County
and adjacent Duchesne County, Utah. This unit contains nine subunits,
and each subunit is occupied and contains all of the physical and
biological features essential to the conservation of the species,
including outcrops of the Parachute Creek member and other upper
members of the Green River Geologic Formation, the appropriate plant
community including other oil shale endemics, a climate with 15 to 30
cm (6 to 12 in.) in annual precipitation, and intact pollinator
habitat. This unit is occupied and includes approximately 62 Graham's
beardtongue locations representing at least 1,156 plants and seven
populations. This unit is the most geographically isolated from the
other units and has minor differences in flower and vegetation color
from the remainder of Graham's beardtongue populations (Shultz and Mutz
1979, p. 41). These color differences may indicate that this unit, due
to geographic isolation, is genetically divergent from the remainder of
the species' population.
Factors affecting Graham's beardtongue within this unit, regardless
of land ownership, include energy development, domestic livestock and
native grazing and trampling, and road impacts, including road
maintenance, increased fugitive dust, and spreading invasive weeds. A
majority of this unit is managed by the BLM, where Graham's beardtongue
receives some protection via a signed conservation agreement and as a
BLM special status species (see Factor D in our proposed listing rule
published elsewhere in today's Federal Register for more details).
No oil and gas wells are located within the Sand Wash Unit,
although 66 percent of the area is leased for oil and gas. Private
mineral rights do not require leases to develop and so are not included
in the total. Oil shale and tar sand leases discussed include only
Federal leases of oil shale and tar sands. None of the critical habitat
in this unit falls within designated oil shale or tar sands areas.
Nearly the entire unit is leased as grazing allotments. At least one
class B (graveled) road and several class D roads pass through this
unit. Class B roads are highways, roads, or streets designated and
maintained by a county. Class D roads are unmaintained. OHV use and
unauthorized collection have not been documented within the Sand Wash
unit, although a major road runs through this unit and these stressors
could potentially occur here. A cohesive management strategy will be
necessary to reduce threats and protect the physical and biological
features essential to the conservation of the species.
Unit 2: Seep Ridge
The Seep Ridge Unit occurs approximately 17 miles east of the Sand
Wash Unit, in the vicinity of Buck, Sunday School, and Klondike Canyons
near the Seep Ridge Road in south central Uintah County, Utah. This
unit contains ten subunits, and each subunit is occupied and contains
all of the physical and biological features essential to the
conservation of the species including outcrops of the Parachute Creek
member and other upper members of the Green River Geologic Formation,
the appropriate plant community including other oil shale endemics, a
climate with 20 to 30 cm (8 to 12 in) in annual precipitation, and
intact pollinator habitat. This unit is occupied and includes
approximately 1,442 Graham's beardtongue points representing at least
8,017 plants and seven populations.
Factors affecting Graham's beardtongue within this unit include
energy development, domestic livestock and native grazing and
trampling, and road impacts, including road maintenance, increased
fugitive dust, and spreading invasive weeds. The Seep Ridge Unit is
managed mostly by the BLM, although it includes the most State and
Institutional Trust Lands (SITLA) lands managed by the State of Utah of
any of the proposed units. The SITLA land in this unit contains
occupied and suitable habitat (GIS analysis 2013). To date, SITLA has
not provided protection to Graham's beardtongue on the lands it manages
in the Uinta Basin where energy development exists.
Four producing gas wells occur across all ownerships within the
Seep Ridge Unit (GIS analysis 2013). An additional 13 gas wells are in
various states of abandonment (plugged and abandoned, operations
suspended, or shut-in) but may have resulted in the loss of plants and
their habitat when they were active. Approximately 30 percent of the
Seep Ridge Unit is leased for traditional oil and gas development, and
38 percent falls within oil shale and tar sands lease areas (some of
these lease areas overlap current oil and gas leases). Combined, about
56 percent of the Seep Ridge Unit is leased or open for leasing for
energy development.
Several roads cross through the Seep Ridge Unit, including four
class B (graveled) roads and at least eight class D roads. Seep Ridge
Road crosses through a portion of one population of

[[Page 47842]]

Graham's beardtongue. This road was paved and widened within occupied
Graham's beardtongue habitat in 2012, and 33 Graham's beardtongue
individuals were salvaged or transplanted as a result (see our proposed
listing rule published elsewhere in today's Federal Register for more
details). The entirety of this unit is leased as grazing allotments.
OHV use and unauthorized collection have not been documented within the
Seep Ridge unit, although several major roads run through this unit and
these stressors could potentially occur here. A cohesive management
strategy will be necessary to reduce threats and protect the physical
and biological features essential to the conservation of the species.
Unit 3: Evacuation Creek
The Evacuation Creek Unit occurs approximately 6 miles east of the
Seep Ridge Unit, in the Asphalt Wash and Evacuation Creek drainages
near the abandoned Gilsonite mining towns of Dragon and Rainbow. This
unit is in southeastern Uintah County, Utah, and adjacent Rio Blanco
County, Colorado. The Evacuation Creek Unit is occupied and contains
the most individuals of Graham's beardtongue: Approximately 1,375
points representing at least 15,077 plants and three populations. This
unit contains four subunits, and each subunit is occupied and contains
all of the physical and biological features essential to the
conservation of the species including outcrops of the Parachute Creek
member and other upper members of the Green River Geologic Formation,
the appropriate plant community including other oil shale endemics, a
climate with 20 to 30 cm (8 to 12 in) in annual precipitation, and
intact pollinator habitat.
Factors affecting Graham's beardtongue within this unit include
energy development, domestic livestock and native grazing and
trampling, and road impacts, including road maintenance, increased
fugitive dust, and spreading invasive weeds. Most of this unit is
managed by the BLM, with some private and State lands. One producing
gas well lies within the Evacuation Creek unit. An additional 17 wells
are plugged and abandoned but may have resulted in the loss of plants
and their habitat when they were active. Approximately 36 percent of
the Evacuation Creek Unit is leased for traditional oil and gas
development, and 39 percent falls within oil shale and tar sands lease
areas (some of these lease areas overlap current oil and gas leases).
Combined, about 69 percent of the Evacuation Creek Unit is leased or
open for leasing for energy development. The entire unit is leased as
grazing allotments. Several roads cross through the Evacuation Creek
Unit, including three class B (graveled) roads and at least eight class
D roads. A cohesive management strategy will be necessary to reduce
threats and protect the physical and biological features essential to
the conservation of the species.
Unit 4: White River
The White River Unit occurs approximately 3 miles north of the
Evacuation Creek unit in Hells Hole and Weaver Canyons immediately
south of the White River. This unit in eastern Uintah County, Utah,
includes approximately 1,565 points representing at least 7,385 plants
and one population. This unit contains four subunits, and each subunit
is occupied and contains all of the physical and biological features
essential to the conservation of the species including outcrops of the
Parachute Creek member and other upper members of the Green River
Geologic Formation, the appropriate plant community including other oil
shale endemics, suitable elevation ranges of 1,484 to 2,113 m (4,869 to
6,932 ft), a climate with 20 to 30 cm (8 to 12 in.) in annual
precipitation, and intact pollinator habitat.
Factors affecting Graham's beardtongue within this unit include
energy development, domestic livestock and native grazing and
trampling, and road impacts, including road maintenance, increased
fugitive dust, and spreading invasive weeds. Approximately 50 percent
of this unit is managed by the BLM. The other 50 percent is privately
and State owned. No producing wells occur within the White River Unit.
Approximately 27 percent of the White River Unit is leased for
traditional oil and gas development, and 22 percent falls within oil
shale and tar sands lease areas (some of these lease areas overlap
current oil and gas leases). Combined, about 43 percent of the White
River Unit is leased or open for leasing for energy development.
Although this critical habitat unit has less area available for oil
shale and tar sands leasing than other critical habitat units, this
unit includes a proposed oil shale mining project (Enefit) that is
likely to impact 20 percent of the known individuals of Graham's
beardtongue (see our proposed listing rule published elsewhere in
today's Federal Register for more details).
Overall, the most substantial threat within the White River Unit is
oil shale development. About half of this unit is in private or State
ownership that is likely to be mined for oil shale in the future.
Direct loss of habitat or individuals within this critical habitat unit
is also likely to have impacts on the Evacuation Creek and Raven Ridge
Units, as the White River Unit serves as an important connection
between the Utah and Colorado populations of Graham's beardtongue.
This entire unit is leased as grazing allotments. A small portion
of a class B (graveled) road and several class D roads pass through the
White River Unit, but this unit is more remote than the other critical
habitat units. A cohesive management strategy will be necessary to
reduce threats and protect the physical and biological features
essential to the conservation of the species.
Unit 5: Raven Ridge
The Raven Ridge Unit occurs approximately 4 miles northeast of the
White River Unit along the west flank of Raven Ridge and north of the
White River between Raven Ridge and the Utah border in extreme western
Rio Blanco County, Colorado. This unit includes approximately 11 points
representing at least 33 plants and four populations. Although
population estimates within this unit in 2006 were 200 plants, more
recent surveys have not located as many individuals. This unit contains
three subunits, and each subunit is occupied and contains all of the
physical and biological features essential to the conservation of the
species including outcrops of the Parachute Creek member and other
upper members of the Green River Geologic Formation, the appropriate
plant community including other oil shale endemics, a climate with 15
to 30 cm (6 to 12 in.) in annual precipitation, and intact pollinator
habitat.
Factors affecting Graham's beardtongue within this unit include
energy development, domestic livestock and native grazing and
trampling, and road impacts, including road maintenance, increased
fugitive dust, and spreading invasive weeds. This unit is primarily
managed by the BLM, with some private lands.
Sixty percent of this unit is within the BLM Raven Ridge Area of
Critical Environmental Concern (ACEC), which was established to protect
listed, candidate, and BLM-sensitive species. The ACEC restricts
motorized travel to existing roads and trails and includes a no surface
occupancy (NSO) stipulation for new oil and gas leases within the ACEC
(BLM 1997, p. 2-19, 2-44). Although the Raven Ridge ACEC sets out goals
for a management plan for the

[[Page 47843]]

area, BLM has not completed a formal management plan for this area.
No producing wells occur within the Raven Ridge Unit, although two
abandoned wells may have resulted in the loss of plants and their
habitat when they were active. Approximately 27 percent of the Raven
Ridge Unit is leased for traditional oil and gas development, but none
of this unit falls within oil shale and tar sands lease areas. An
additional 30 percent of the Raven Ridge ACEC was proposed for leasing
in 2013, but the lease sale is now deferred for further analysis (BLM
2013, entire). The entirety of this unit is leased as grazing
allotments. One class B road passes through the Raven Ridge Unit.
Overall, a cohesive, unit-wide management strategy is still needed to
protect Graham's beardtongue across the entire unit.

White River Beardtongue

We are proposing three units as critical habitat for White River
beardtongue. The critical habitat areas we describe below constitute
our best assessment of areas that meet the definition of critical
habitat for White River beardtongue. The three units we propose as
critical habitat are: (1) North Evacuation Creek, (2) Weaver Ridge, and
(3) South Raven Ridge. All of these units are occupied by White River
beardtongue. The approximate acreage of each proposed critical habitat
unit is shown in Table 2.

Table 2--Acreage and Land Ownership Status for the Proposed Critical Habitat Units for White River Beardtongue.
Area Estimates Reflect All Land Within Critical Habitat Unit Boundaries.
----------------------------------------------------------------------------------------------------------------
Critical habitat unit Land ownership Size of unit
----------------------------------------------------------------------------------------------------------------
1. North Evacuation Creek................ BLM......................... 1,368 ha (3,382 ac).
State....................... 185 ha (457 ac).
Private..................... 1,415 ha (3,498 ac).
----------------------------------------
Total.................... 2,969 ha (7,336 ac).
----------------------------------------------------------------------------------------------------------------
2. Weaver Ridge.......................... BLM......................... 788 ha (1,946 ac).
State....................... 651 ha (1,608 ac).
Private..................... 1,397 ha (3,452 ac).
----------------------------------------
Total.................... 2,836 ha (7,006 ac).
----------------------------------------------------------------------------------------------------------------
3. South Raven Ridge..................... BLM......................... 191 ha (472 ac).
Private..................... 41 ha (101 ac).
----------------------------------------
Total.................... 232 ha (573 ac).
----------------------------------------------------------------------------------------------------------------
Total Across All Units................... BLM......................... 2,347 ha (573 ac).
State....................... 836 ha (2,853 ac).
Private..................... 2,853 ha (7,051 ac).
----------------------------------------
Total.................... 6,036 ha (14,914 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 White River beardtongue,
below. The units are listed in order geographically south to north.
There is no obvious geographical or biological barrier between the
Evacuation Creek and White River critical habitat units. We chose to
separate these units based on splitting the known Utah populations into
a northern half and a southern half. We also discuss where White River
beardtongue critical habitat overlaps Graham's beardtongue critical
habitat--approximately 54 percent of all proposed White River
beardtongue critical habitat overlaps with Graham's beardtongue's
proposed critical habitat.
Unit 1: North Evacuation Creek
The North Evacuation Creek Unit occurs about 11 km (7 miles) south
and east of Bonanza, Utah, in the Asphalt Wash and Evacuation Creek
drainages near the abandoned Gilsonite mining towns of Dragon and
Rainbow. This unit is in southeastern Uintah County, Utah, and adjacent
Rio Blanco County, Colorado. The North Evacuation Creek Unit contains
approximately 259 points representing at least 6,820 plants and three
populations. Fifty-three percent of this unit overlaps with Graham's
beardtongue proposed critical habitat. This unit contains nine
subunits, and each subunit is occupied and contains all of the physical
and biological features essential to the conservation of the species
including outcrops of the Parachute Creek member and other upper
members of the Green River Geologic Formation, the appropriate plant
community including other oil shale endemics, a climate with 20 to 30
cm (8 to 12 in) in annual precipitation, and intact pollinator habitat.
Factors affecting White River beardtongue within this unit include
energy development, domestic livestock and native grazing and
trampling, and road impacts, including road maintenance, increased
fugitive dust, and spreading invasive weeds. This unit is split almost
evenly by BLM and private landownership, with a small amount of State
land. Four plugged and abandoned wells are located within the North
Evacuation Creek Unit but may have resulted in the loss of plants and
their habitat when they were active. Approximately 10 percent of the
North Evacuation Creek Unit is leased for traditional oil and gas
development, and 39 percent falls within oil shale and tar sands lease
areas, with very little overlap between the two lease types.
Additionally, a majority of the critical habitat areas included in this
unit occurs on private land and is therefore not included in these
lease totals. Combined, about 49 percent of the North Evacuation Creek
unit is leased or open for leasing for energy development. The entire
portion of this unit on BLM land is grazed. Several roads cross through
the North Evacuation Creek unit, including four graveled, class B
roads. A cohesive management strategy will be necessary

[[Page 47844]]

to reduce threats and protect the physical and biological features
essential to the conservation of the species.
Unit 2: Weaver Ridge
The Weaver Ridge Unit occurs directly east and southeast of
Bonanza, Utah, and immediately north of the North Evacuation Creek
Unit. This unit is in southeastern Uintah County, Utah, and adjacent
Rio Blanco County, Colorado. The Weaver Ridge Unit includes
approximately 319 points representing at least 4,575 plants and 3
populations. Fifty-five percent of this unit overlaps with proposed
Graham's beardtongue critical habitat. This unit contains thirteen
subunits, and each subunit is occupied and contains all of the physical
and biological features essential to the conservation of the species
including outcrops of the Parachute Creek member and other upper
members of the Green River Geologic Formation, the appropriate plant
community including other oil shale endemics, a climate with 15 to 30
cm (6 to 12 in.) in annual precipitation, and intact pollinator
habitat.
Factors affecting White River beardtongue within this unit include
energy development, domestic livestock and native grazing and
trampling, and road impacts, including road maintenance, increased
fugitive dust, and spreading invasive weeds. Most of this unit is
privately owned, with some BLM and State land. Although most of the
critical habitat within this unit occurs on private land, most of the
known plant points occur on Federal lands. This is not surprising, as
private lands are not typically surveyed, and we expect that additional
surveys conducted on private lands would count many more individuals of
White River beardtongue within this unit.
Two producing wells and three approved well locations are located
within the Weaver Ridge Unit. Approximately 31 percent of the Weaver
Ridge Unit is leased for traditional oil and gas development, and 19
percent falls within oil shale and tar sands lease areas. Combined,
about 45 percent of the Weaver Ridge Unit is leased or, in the case of
oil shale and tar sands development, designated for leasing for energy
development. The entire portion of the unit on BLM lands is grazed. A
paved State road, the Bonanza Highway, crosses just through the edge of
a critical habitat area within the Weaver Ridge Unit, and another paved
class B road skirts another area. A cohesive management strategy will
be necessary to reduce threats and protect the physical and biological
features essential to the conservation of the species.
Unit 3: South Raven Ridge
The South Raven Ridge Unit occurs about 10 km northeast of the
Weaver Ridge Unit and about 11 km west of Rangely, Colorado, on the
southern portion of Raven Ridge overlooking the White River. This unit
is entirely within Rio Blanco County, Colorado. The South Raven Ridge
Unit is the smallest unit for this species and contains 6 points
representing at least 28 plants and 1 population. Fifty-nine percent of
this unit overlaps with Graham's beardtongue critical habitat. This
unit has all the physical and biological features essential to the
conservation of the species including outcrops of the Parachute Creek
member and other upper members of the Green River Geologic Formation,
the appropriate plant community including other oil shale endemics, a
climate with 15 to 30 cm (6 to 12 in) in annual precipitation, and
intact pollinator habitat.
Factors affecting White River beardtongue within this unit include
domestic livestock and native grazing and trampling, and some road
impacts, including road maintenance, increased fugitive dust, and
spreading invasive weeds. No oil or gas wells are located within the
South Raven Ridge Unit. This unit is mostly on BLM lands with some
private lands. Approximately 20 percent of the South Raven Ridge Unit
is leased for traditional oil and gas development. None of this unit
falls within oil shale and tar sands lease areas. All of the BLM-
managed lands in this unit are grazed. No major roads cross through
this unit. Sixty-four percent of this unit is within the Raven Ridge
ACEC (discussed above), with restricted motorized travel and NSO
stipulations (BLM 1997, p. 2-19, 2-44). As described above, although
the Raven Ridge ACEC sets out goals for a management plan for the area,
BLM has not completed a formal management plan for this area. Overall,
threats occur across the entire unit, and thus a cohesive management
strategy will be necessary to reduce threats and protect the physical
and biological features essential to the conservation of the species.

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 which 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:

[[Page 47845]]

(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, and
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 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 Graham's beardtongue and
White River beardtongue. As discussed above, the role of critical
habitat is to support life-history needs of the species and provide for
the conservation of these 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 Graham's beardtongue or White River beardtongue. These
activities include, but are not limited to:
(1) Actions that have the potential to appreciably degrade or
destroy Graham's beardtongue or White River beardtongue habitat and
primary constituent elements. Such activities could include, but are
not limited to, energy development, road construction and maintenance,
OHV use, and intensive livestock grazing. These activities could
eliminate or reduce the habitat necessary for the growth, reproduction,
and establishment of these species;
(2) Alteration of naturally existing hydrology by redirection of
sheet flow or water ``perching'' (to which the species may be adapted,
discussed above in Soils and Geology for Graham's beardtongue) from
areas adjacent to occupied habitat;
(3) Compaction of soil through the establishment of new wellpads,
roads, pipelines, or trails;
(4) Activities that foster the introduction of nonnative
vegetation, particularly noxious weeds, or create conditions that
encourage the growth of nonnatives. These activities could include, but
are not limited to: Supplemental feeding of livestock, ground
disturbance associated with energy development, roads, and other soil-
disturbing activities; and
(5) Indirect effects that appreciably decrease habitat value or
quality (e.g., energy development near critical habitat that leads to
disturbance, erosion, herbicide and pesticide use that could impair
pollinators, and changes to drainage patterns, soil stability, and
vegetative community composition).

Exemptions

Application of Section 4(a)(3) of the Act

The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an integrated natural resources management plan (INRMP) by
November 17, 2001. The INRMPs must to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws. There are no
Department of Defense lands within our 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 she determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless she 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 her discretion to
exclude the area only if such exclusion would not result in the
extinction of the species.

[[Page 47846]]

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. All of the proposed critical habitat units contain private
lands, Federal lands with oil and gas leases, and grazing permits.
Several State-owned parcels are included in some units where oil and
gas development occurs. The economic analysis will estimate the
economic impact of a potential designation of critical habitat on these
activities.
During the development of a final designation, we will consider
economic impacts based on information in our economic analysis, 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
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 Graham's beardtongue and White
River beardtongue are not owned or managed by the Department of Defense
or Department of Homeland Security, and, therefore, we anticipate no
impact on national security. Consequently, the Secretary is not
intending to exercise her 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 (HCPs) 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. There are no tribal lands included in
our proposed critical habitat designation.
In preparing this proposal, we have determined that there are no
HCPs or other management plans for Graham's beardtongue and White River
beardtongue, and the proposed designation does not include any tribal
lands or trust resources. We anticipate no impact on tribal lands,
partnerships, or HCPs from this proposed critical habitat designation.
Accordingly, the Secretary does not intend to exercise her discretion
to exclude any areas from the final designation based on other relevant
impacts.

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 critical habitat designation is based on scientifically sound
data, and analyses. We have invited these peer reviewers to comment
during this public comment period.
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 the FOR
FURTHER INFORMATION CONTACT section. 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 by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C 801 et seq.), whenever an agency is required to
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.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include such businesses as manufacturing and mining concerns with fewer
than 500 employees, wholesale trade entities with fewer than 100
employees, retail and service businesses with less than $5 million in
annual sales, general and heavy construction businesses with less than
$27.5 million in annual business, special trade contractors doing less
than $11.5 million in annual business, and forestry and logging
operations with fewer than 500 employees and annual business less than
$7 million. To determine whether small entities may be affected, we
will consider the types

[[Page 47847]]

of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
Importantly, the incremental impacts of a rule must be both
significant and substantial to prevent certification of the rule under
the RFA and to require the preparation of an initial regulatory
flexibility analysis. If a substantial number of small entities are
affected by the proposed critical habitat designation, but the per-
entity economic impact is not significant, the Service may certify.
Likewise, if the per-entity economic impact is likely to be
significant, but the number of affected entities is not substantial,
the Service may also certify.
Under the RFA, as amended, and following recent court decisions,
Federal agencies are only required to evaluate the potential
incremental impacts of rulemaking on those entities directly regulated
by the rulemaking itself, and not the potential impacts to indirectly
affected entities. The regulatory mechanism through which critical
habitat protections are realized is section 7 of the Act, which
requires Federal agencies, in consultation with the Service, to ensure
that any action authorized, funded, or carried by the Agency is not
likely to adversely modify critical habitat. Therefore, only Federal
action agencies are directly subject to the specific regulatory
requirement (avoiding destruction and adverse modification) imposed by
critical habitat designation. Under these circumstances, it is our
position that only Federal action agencies will be directly regulated
by this designation. Therefore, because Federal agencies are not small
entities, the Service may certify that the proposed critical habitat
rule will not have a significant economic impact on a substantial
number of small entities.
We acknowledge, however, that in some cases, third-party proponents
of the action subject to permitting or funding may participate in a
section 7 consultation, and thus may be indirectly affected. We believe
it is good policy to assess these impacts if we have sufficient data
before us to complete the necessary analysis, whether or not this
analysis is strictly required by the RFA. While this regulation does
not directly regulate these entities, in our draft economic analysis we
will conduct a brief evaluation of the potential number of third
parties participating in consultations on an annual basis in order to
ensure a more complete examination of the incremental effects of this
proposed rule in the context of the RFA.
In conclusion, we believe that, based on our interpretation of
directly regulated entities under the RFA and relevant case law, this
designation of critical habitat will only directly regulate Federal
agencies which are not by definition small business entities. As such,
we certify that, if promulgated, this designation of critical habitat
would not have a significant economic impact on a substantial number of
small business entities. Therefore, an initial regulatory flexibility
analysis is not required. However, though not necessarily required by
the RFA, in our draft economic analysis for this proposal, we will
consider and evaluate the potential effects to third parties that may
be involved with consultations with Federal action agencies related to
this action.

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. Graham's beardtongue and White River beardtongue both
occur in areas with energy development activity. Existing well pads and
proposed oil shale development projects are within proposed critical
habitat units. On Federal lands, entities conducting energy-related
activities would need to consult within areas designated as critical
habitat. We are deferring our finding until the draft economic analysis
has been completed. 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. Small governments will be affected
only to the extent that any programs having Federal funds, permits, or
other authorized activities must ensure that their actions will not
adversely affect the critical habitat. Therefore, a Small Government
Agency

[[Page 47848]]

Plan is not required. However, we will further evaluate this issue as
we conduct our economic analysis, and review and revise this assessment
if appropriate.

Takings--Executive Order 12630

In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
designating critical habitat for the Graham's beardtongue and White
River beardtongue in a takings implications assessment. Based on the
best available information, the takings implications assessment
concludes that this designation of critical habitat for the Graham's
beardtongue and the White River beardtongue does not pose significant
takings implications. However, we will further evaluate this issue as
we develop our final designation, and review and revise this assessment
as warranted.

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 Utah and Colorado. The designation of critical habitat in
areas occupied by Graham's beardtongue and White River beardtongue may
impose nominal additional regulatory restrictions to those currently in
place and, therefore, has little incremental impact on State and local
governments and their activities. The designation may have some benefit
to these governments because the areas that contain the physical and
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 along-range planning (rather than having them wait for
case-by-case section 7 consultation 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. To
assist the public in understanding the habitat needs of the species,
the rule identifies the elements of physical or biological features
essential to the conservation of the species. The designated areas of
critical habitat are presented on maps, and the rule provides several
options for the interested public to obtain more detailed location
information, if desired.

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.)

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 the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) 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 Graham's beardtongue and White River beardtongue, 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.

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 were occupied by
Graham's beardtongue or White River beardtongue at the time of listing
that contain the features essential for conservation of the species,
and no tribal lands unoccupied by Graham's beardtongue or White River
beardtongue that are essential for the conservation of these species.
Therefore, we are not proposing to designate critical habitat for
Graham's beardtongue or White River beardtongue on tribal lands.

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

[[Page 47849]]

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.

References Cited

A complete list of references cited in this rulemaking is available
on the Internet at https://www.regulations.gov under Docket No. FWS-R6-
ES-2013-0082 and upon request from the Utah Ecological Services Field
Office (see FOR FURTHER INFORMATION CONTACT).

Authors

The primary authors of this package are the staff members of the
Utah 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--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245, unless
otherwise noted.

0
2. In Sec. 17.96, amend paragraph (a) by adding entries for
``Penstemon grahamii (Graham's beardtongue)'' and ``Penstemon scariosus
var. albifluvis (White River beardtongue)'' in alphabetical order under
Family Plantaginaceae, to read as follows:

Sec. 17.96 Critical habitat--plants.

* * * * *
(a) Flowering plants.
* * * * *
Family Plantaginaceae: Penstemon grahamii (Graham's beardtongue)
(1) Critical habitat units are depicted for Uintah and Duchesne
Counties, Utah, and Rio Blanco County, Colorado, on the maps below.
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the conservation of
Graham's beardtongue consist of:
(i) Plant community.
(A) Barren areas with little, but diverse, plant cover.
(B) Presence of dwarf shrubs and cushion-like, oil shale endemic
plants, including Dragon milkvetch (Astragalus lutosus), oilshale
columbine (Aquilegia barnebyi), Barneby's thistle (Cirsium barnebyi),
oilshale cryptantha (Cryptantha barnebyi), Graham's cryptantha
(Cryptantha grahamii), Rollins' cryptantha (Cryptantha rollinsii),
ephedra buckwheat (Eriogonum ephedroides), and White River beardtongue
(Pensemon scariosus var. albifluvis).
(C) Intact, surrounding, native plant community to support
pollinators and protect from the encroachment of invasive weeds and
other potential threats.
(ii) Slopes and topography.
(A) Southwest- to western-facing slopes.
(B) Slopes of less than 40 degrees; average slope of 17.6 degrees.
(iii) Soils and geology.
(A) Parachute Creek Member and other upper members of the Green
River Geologic Formation.
(B) Appropriate soil morphology characterized by shallow soils with
virtually no soil horizon development, with a surface usually covered
by broken shale channers or light clay derived from the thinly bedded
shale.
(C) Intact soils with minimal anthropogenic disturbance (at or
below current levels) within Graham's beardtongue occupied habitat and
nearby plant communities.
(iv) Climate. A cold desert climate with the same conditions under
which the species evolved and is typical for the area. Annual
precipitation of 15 to 30 cm (6 to 12 inches) with most precipitation
in spring and fall and snow cover from December through March. Average
winter low temperature of -14 [deg]C (7[emsp14][deg]F) and average
summer high of 34 [deg]C (93 ([deg]F)) with at least 45 to 90
consecutive days less than 4 [deg]C (40[emsp14][deg]F).
(v) Habitat for pollinators.
(A) Ground and twig nesting areas for pollinators. A diverse mosaic
of native plant communities that include flowering plants that provide
nectar and pollen for a wide array of pollinator species.
(B) Connectivity between areas allowing pollinators to move from
one site to the next within each population.
(C) A 700-m (2,297-ft) area beyond occupied habitat to conserve the
pollinators essential for plant reproduction.
(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 entry.
(4) Critical habitat map units. Data layers defining map units were
created by using satellite imagery (Bing 2012 Aerial Imagery basemap
provided with ArcMap10, NAIP 2011 imagery). Units were mapped using NAD
83 Universal Transverse Mercatore (UTM), Zone 12 N coordinates.
Location information came from a wide array of sources. A habitat model
created by the Colorado Natural Heritage Program was also used. The
maps in this entry, as modified by any accompanying regulatory text,
establish the boundaries of the critical habitat designation. On the
index map, critical habitat is delineated by gray shading. Boxes around
the gray shading indicate only which polygons are included within the
same unit and do not delineate critical habitat boundaries. 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/utahfieldoffice/), on https://www.regulations.gov at Docket
No. FWS-R6-ES-2013-0082, 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 47850]]

[GRAPHIC] [TIFF OMITTED] TP06AU13.008

(6) Unit 1: Sand Wash, Duchesne and Uintah Counties, Utah. Map of
Subunits 1A, 1B, 1C, 1D, 1E, 1F, 1G, 1H, and 1I follows:

[[Page 47851]]

[GRAPHIC] [TIFF OMITTED] TP06AU13.009

(7) Unit 2: Seep Ridge, Uintah County, Utah. Map of Subunits 2A,
2B, 2C, 2D, 2E, 2F, 2G, 2H, 2I, and 2J follows:

[[Page 47852]]

[GRAPHIC] [TIFF OMITTED] TP06AU13.010

(8) Unit 3: Evacuation Creek, Uintah County, Utah, and Rio Blanco
County, Colorado. Map of Subunits 3A, 3B, 3C, and 3D follows:

[[Page 47853]]

[GRAPHIC] [TIFF OMITTED] TP06AU13.011

(9) Unit 4: White River, Uintah County, Utah. Map of Subunits 4A,
4B, 4C, 4D, 5A, 5B, and 5C follows:

[[Page 47854]]

[GRAPHIC] [TIFF OMITTED] TP06AU13.012

(10) Unit 5: Raven Ridge, Rio Blanco County, Colorado. Map of Unit
5 is provided at paragraph (a)(9) of this entry.
Family Plantaginaceae: Penstemon scariosus var. albifluvis (White River
beardtongue)
(1) Critical habitat units are depicted for Uintah County, Utah,
and Rio Blanco County, Colorado, on the maps below.
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the conservation of White
River beardtongue consist of:
(i) Plant community.
(A) Barren areas with little, but diverse, plant cover.
(B) Presence of dwarf shrubs and cushion-like, oil shale endemic
plants, including Dragon milkvetch (Astragalus lutosus), oilshale
columbine (Aquilegia barnebyi), Barneby's thistle (Cirsium barnebyi),
oilshale cryptantha (Cryptantha barnebyi), Graham's cryptantha
(Cryptantha grahamii), Rollins' cryptantha (Cryptantha rollinsii),
ephedra buckwheat (Eriogonum ephedroides), and occasionally Graham's
beardtongue (Penstemon grahamii).
(C) Intact, surrounding, native plant community to support
pollinators and protect from the encroachment of

[[Page 47855]]

invasive weeds and other potential threats.
(ii) Slopes and topography.
(A) South- to southwest-facing slopes.
(B) Slopes of less than 33 degrees; average slope of 19.2 degrees.
(iii) Soils and geology.
(A) Parachute Creek Member and other upper members of the Green
River Geologic Formation.
(B) Appropriate soil morphology characterized by shallow soils with
virtually no soil horizon development, with a surface usually covered
by broken shale channers or light clay derived from the thinly bedded
shale.
(C) Intact soils with minimal anthropogenic disturbance (at or
below current levels) within White River beardtongue occupied habitat
and nearby plant communities.
(iv) Climate. A cold desert climate with the same conditions under
which the species evolved and is typical for the area. Annual
precipitation of 15 to 30 cm (6 to 12 inches) with most precipitation
in spring and fall and snow cover from December through March. Average
winter low temperature of -14 [deg]C (7[emsp14][deg]F) and average
summer high of 34 [deg]C (93 ([deg]F)) with at least 45 to 90
consecutive days less than 4 [deg]C (40[emsp14][deg]F).
(v) Habitat for pollinators.
(A) Ground and twig nesting areas for pollinators. A diverse mosaic
of native plant communities that include flowering plants that provide
nectar and pollen for a wide array of pollinator species.
(B) Connectivity between areas allowing pollinators to move from
one site to the next within each population.
(C) A 500-m (1,640-ft) area beyond occupied habitat to conserve the
pollinators essential for plant reproduction.
(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 entry.
(4) Critical habitat map units. Data layers defining map units were
created by using satellite imagery (Bing 2012 Aerial Imagery basemap
provided with ArcMap10, NAIP 2011 imagery). Units were mapped using NAD
83 Universal Transverse Mercatore (UTM), Zone 12 N coordinates.
Location information came from a wide array of sources. The maps in
this entry, as modified by any accompanying regulatory text, establish
the boundaries of the critical habitat designation. On the index map,
critical habitat is delineated by gray shading. Boxes around the gray
shading indicate only which polygons are included within the same unit
and do not delineate critical habitat boundaries. 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/utahfieldoffice/), on https://www.regulations.gov at Docket No. FWS-R6-
ES-2013-0082, 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:

[[Page 47856]]

[GRAPHIC] [TIFF OMITTED] TP06AU13.013

(6) Unit 1: North Evacuation Creek, Uintah County, Utah, and Rio
Blanco County, Colorado. Map of Subunits 1A, 1B, 1C, 1D, 1E, 1F, 1G,
1H, and 1I follows:

[[Page 47857]]

[GRAPHIC] [TIFF OMITTED] TP06AU13.014

(7) Unit 2: Weaver Ridge, Uintah County, Utah, and Rio Blanco
County, Colorado. Map of Subunits 2A, 2B, 2C, 2D, 2E, 2F, 2G, 2H, 2I,
2J, 2K, 2L, 2M and Unit 3 follows:

[[Page 47858]]

[GRAPHIC] [TIFF OMITTED] TP06AU13.015

(8) Unit 3: South Raven Ridge, Rio Blanco County, Colorado. Map of
Unit 3 is provided at paragraph (a)(7) of this entry.
* * * * *

Dated: July 18, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-18335 Filed 8-5-13; 8:45 am]
BILLING CODE 4310-55-C

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