Endangered and Threatened Wildlife and Plants; Withdrawal of the Proposed Rules To List Graham's Beardtongue (Penstemon grahamii) and White River Beardtongue (Penstemon scariosus var. albifluvis) as Threatened Species and To Designate Critical Habitat, 2107-2125 [2022-00485]
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Federal Register / Vol. 87, No. 9 / Thursday, January 13, 2022 / Proposed Rules
amount of the Government contributions
paid by the Agency to or on behalf of the
contractor to maintain the contractor’s health
insurance coverage during the period of paid
parental leave.
(iii) The contracting officer may waive the
reimbursement requirement of this paragraph
if the contractor is unable to fulfill the
required 12-workweek obligation for any of
the following reasons:
(A) In the Agency’s judgment, the
contractor is unable to return to work
because of the continuation, recurrence, or
onset of a serious health condition (including
mental health) of the contractor or the newly
born or placed child—but only if the
condition is related to the applicable birth or
placement; or
(B) in the Agency’ judgment, the contractor
is unable to return to work due to
circumstances beyond the contractor’s
control that precludes performance under the
contract; or
(C) the contracting officer terminates the
contract for convenience in accordance with
the clause entitled ‘‘Termination’’, or does
not exercise any option period.
*
*
*
*
*
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30. Relocation Expense Benefit
[Insert the following clause in contracts
with USPSCs based abroad except Resident
Hire USPSCs.]
Relocation Expense Benefit (DATE)
If the contractor’s period of performance
abroad is for twelve consecutive months or
more, USAID may provide a one-time
payment to assist the contractor with
extraordinary relocation expenses as follows:
(a) A contractor legally residing in, and
relocating from the U.S., its commonwealth,
possessions or territories to an overseas post;
or a personal services contractor relocating
immediately from a prior USAID overseas
post to the USAID overseas post under this
contract, may receive a miscellaneous
relocation expense payment of—
(1) $750 or the equivalent of one week’s
pay, whichever is the lesser amount, if the
contractor is unaccompanied; or
(2) $1,500 or the equivalent of two weeks’
pay, whichever is the lesser amount, if the
contractor is accompanied with eligible
family members.
(b) In addition, a contractor legally residing
in, and relocating from the U.S., its
commonwealth, possessions or territories to
the cooperating country pursuant to this
personal services contract may receive a predeparture subsistence expense
reimbursement for the contractor and each
eligible family member for up to 10 days
before final departure to the cooperating
country abroad, beginning not more than 30
days after the contractor has vacated their
residence, using the following partial flat rate
method:
(1) An actual lodging amount (excluding
lodging tax) up to the lodging portion of the
per diem of the U.S. locality of the
contractor’s legal place of residence, and a
flat amount equal to the meal and incidental
expense (M&IE) portion of the per diem
according to the formula below. In addition,
the contractor may be reimbursed separately
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for taxes imposed on actual lodging
expenses, if any. Receipts are required only
for lodging.
(2) For the initial occupant, whether the
contractor or accompanying eligible family
member age 12 or over, a daily lodging
amount not in excess of the published
lodging portion of the per diem rate for the
U.S. locality at which the occupant normally
resides, and a flat amount equal to the meal
and incidental expense portion of the
referenced per diem rate to defray costs for
meals, laundry and dry cleaning.
(3) For each additional occupant, whether
the contractor or accompanying eligible
family member age 12 or over, a daily lodging
amount not in excess of 75% of the
published lodging portion of the per diem
rate for the U.S. locality at which the
occupant normally resides, and a flat amount
equal to 75% of the meal and incidental
expense portion of the referenced per diem
rate to defray costs for meals, laundry and
dry cleaning.
(4) For each accompanying eligible family
member occupant under age 12, a daily
lodging amount not in excess of 50% of the
published lodging portion of the per diem
rate for the U.S. locality at which the
occupant normally resides, and a flat amount
equal to 50% of the meal and incidental
expense portion of the referenced per diem
rate to defray costs for meals, laundry and
dry cleaning.
(5) A contractor and any accompanying
eligible family member relocating from a
place other than the U.S., its commonwealth,
possessions or territories to the cooperating
country, will not be eligible for the predeparture subsistence expense portion of the
relocation expenses.
(6) Expenses of local transportation are not
allowable.
(c) The contractor must obtain approval for
what is authorized in paragraphs (a) and (b)
of this clause in the Travel Authorization
(TA) issued by USAID to the contractor, in
accordance with the Travel and
Transportation Expenses clause. The
contractor must claim reimbursement under
the TA only after the contractor and all
accompanying eligible family members, if
any, have arrived in the cooperating country.
(d) If the contractor does not complete
twelve consecutive months in the
cooperating country, except for reasons
beyond the contractor’s control, the
contractor will be liable to reimburse USAID
for the amount of the relocation expense
benefit received.
Mark Walther,
Chief Acquisition Officer.
[FR Doc. 2021–27944 Filed 1–12–22; 8:45 am]
BILLING CODE P
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R6–ES–2019–0029;
FF09E21000 FXES1111090FEDR 223]
RIN 1018–BD71
Endangered and Threatened Wildlife
and Plants; Withdrawal of the
Proposed Rules To List Graham’s
Beardtongue (Penstemon grahamii)
and White River Beardtongue
(Penstemon scariosus var. albifluvis)
as Threatened Species and To
Designate Critical Habitat
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule; withdrawal.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), are
withdrawing our August 6, 2013,
proposed rules to list Graham’s
beardtongue (Penstemon grahamii) and
White River beardtongue (Penstemon
scariosus var. albifluvis) as threatened
species throughout their ranges and to
designate critical habitat for these two
plant species under the Endangered
Species Act of 1973, as amended (Act).
These withdrawals are based on our
conclusion that the stressors affecting
the species as identified in the proposed
listing rule are not as significant as
previously understood at the time of
publication of that proposed rule, such
that the species do not meet the Act’s
definition of an ‘‘endangered species’’ or
of a ‘‘threatened species.’’ Our
conclusion is informed by an updated
analysis of new and previous
information concerning current and
future stressors to the species and
conservation efforts for them.
DATES: The U.S. Fish and Wildlife
Service is withdrawing proposed rules
published on August 6, 2013 (78 FR
47590 and 47832), as of January 13,
2022.
SUMMARY:
Relevant documents used in
the preparation of this withdrawal are
available on the internet at https://
www.regulations.gov at Docket No.
FWS–R6–ES–2019–0029.
FOR FURTHER INFORMATION CONTACT:
Yvette Converse, Field Supervisor, U.S.
Fish and Wildlife Service, Utah
Ecological Services Office, 2369 W
Orton Circle, Suite 50, West Valley City,
UT 84119; telephone 801–975–3330.
Persons who use a telecommunications
device for the deaf may call the Federal
Relay Service at 800–877–8339.
SUPPLEMENTARY INFORMATION:
ADDRESSES:
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Executive Summary
Why we need to publish this
document. Under the Act, a species may
warrant protection through listing if it is
endangered or threatened throughout all
or a significant portion of its range. In
2013, we issued proposed rules to list
the Graham’s beardtongue and White
River beardtongue (beardtongues) and to
designate critical habitat for the
beardtongues. This document
withdraws the proposed listing rule
because we have now determined that
the factors affecting the beardtongues as
identified in that proposed rule are not
as significant as previously understood
in 2013, such that listing is not
warranted for these species. Because we
are withdrawing the proposed listing
rule for the beardtongues, we also
withdraw the proposed critical habitat
designation for these species.
The basis for our action. The Act
defines an ‘‘endangered species’’ as a
species that is in danger of extinction
throughout all or a significant portion of
its range and a ‘‘threatened species’’ as
a species that is likely to become an
endangered species within the
foreseeable future throughout all or a
significant portion of its range. Under
the Act, we may determine that a
species is an endangered or threatened
species because of any of five factors:
(A) The present or threatened
destruction, modification, or
curtailment of its habitat or range; (B)
overutilization for commercial,
recreational, scientific, or educational
purposes; (C) disease or predation; (D)
the inadequacy of existing regulatory
mechanisms; or (E) other natural or
manmade factors affecting its continued
existence (16 U.S.C. 1533(a)(1)). We
have determined that the stressors
affecting the beardtongues as identified
in the proposed listing rule (energy
development, cumulative impacts from
livestock grazing, invasive weeds, small
population size, and climate change) are
not as significant as previously
understood at the time of publication of
the proposed rule (i.e., in 2013).
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Previous Federal Actions
On August 6, 2013, we published a
proposed rule to list Graham’s
beardtongue and White River
beardtongue as threatened species (78
FR 47590) under the Act (16 U.S.C. 1531
et seq.). Please refer to that proposed
rule for a detailed description of
previous Federal actions concerning
Graham’s beardtongue and White River
beardtongue prior to 2013. On August 6,
2013, we also published a proposed rule
to designate critical habitat for both
species (78 FR 47832). Following
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publication of our August 6, 2013,
proposed rules, the same parties
(Bureau of Land Management (BLM);
U.S. Fish and Wildlife Service (Service);
Utah Department of Natural Resources
(DNR); State of Utah School and
Institutional Trust Lands
Administration (SITLA); Uintah County,
Utah) that had drafted a 2007
conservation agreement (CA) for
Graham’s beardtongue and White River
beardtongue reconvened to evaluate
species’ surveys and distribution
information and to reassess the
conservation needs of both Graham’s
and White River beardtongues. Based on
this evaluation, the parties completed a
new conservation agreement (2014 CA,
entire) that specifically addressed the
threats identified in our August 6, 2013,
proposed listing rule (78 FR 47590).
Additional signatories to the 2014 CA
included the Utah Public Lands Policy
Coordination Office (PLPCO) and Rio
Blanco County, Colorado. While private
landowners were not signatories to the
2014 CA, some private lands are
designated as conservation areas under
the 2014 CA, and Uintah County
coordinates with and represents the
interests of affected landowners.
In the 2014 CA, the parties committed
to conservation actions including
establishing 44,373 acres (ac) (17,957
hectares (ha)) of occupied and
unoccupied suitable habitat as protected
conservation areas with limited surface
disturbance and avoidance of Graham’s
and White River beardtongue plants by
300 feet (ft) (91.4 meters (m)).
Additionally, BLM agreed to avoid
surface disturbances within 300 ft (91.4
m) of Graham’s and White River
beardtongue plants within and outside
of conservation areas on BLM land. The
parties also developed conservation
measures to address the cumulative
impacts from livestock grazing, invasive
weeds, small population size, and
climate change by continuing species
monitoring, monitoring climate,
reducing impacts from grazing when
and where detected, and controlling
invasive weeds.
On May 6, 2014, we announced the
reopening of the public comment period
on our August 6, 2013, proposed listing
and proposed designation of critical
habitat rules until July 7, 2014 (79 FR
25806). In that document, we also
announced the availability of a draft
economic analysis (DEA), draft
environmental assessment (EA), draft
2014 CA, and amended required
determinations section of the critical
habitat proposal. We also announced
the availability of 2013 survey results
for Graham’s and White River
beardtongue plants and our intent to
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hold a public information meeting and
public hearing.
On August 6, 2014, we withdrew the
proposed rule to list Graham’s
beardtongue and White River
beardtongue as threatened species (79
FR 46042). That withdrawal was based
on our conclusion that the threats to the
species as identified in the August 6,
2013, proposed listing rule were no
longer as significant as we previously
determined, such that the species did
not meet the Act’s definitions of an
‘‘endangered species’’ or of a
‘‘threatened species.’’ We based this
conclusion on our analysis of new
information concerning current and
future threats to the species and
conservation efforts. As a result, we also
withdrew our associated August 6,
2013, proposed rule to designate critical
habitat for these species.
On March 26, 2015, a complaint was
filed in the District Court for the District
of Colorado by Rocky Mountain Wild,
Center for Biological Diversity, Utah
Native Plant Society, Southern Utah
Wilderness Alliance, Grand Canyon
Trust, Western Resource Advocates, and
Western Watersheds Project challenging
the withdrawal of the proposal to list
Graham’s beardtongue and White River
beardtongue (Rocky Mountain Wild v.
Walsh, No. 15–615 (D. Colo. filed Mar.
26, 2015)). The State of Utah, SITLA and
PLPCO, and Uintah County, Utah,
intervened in the litigation (Mot. to
Intervene, ECF No. 10). On October 25,
2016, the court found that the
withdrawal was contrary to the Act
because (1) we concluded that yet-to-beenacted regulatory and non-regulatory
measures mandated by the 2014 CA
were ‘‘existing regulatory mechanisms’’;
(2) we failed to account for the 2014
CA’s expiration when determining
whether the beardtongues face material
threats in the ‘‘foreseeable future’’; and
(3) we took into account economic
considerations when imposing a 300-ft
(91.4-m) buffer zone around each
beardtongue (Order Vacating Admin.
Action and Req. Meet-and-Confer
Between the Parties, ECF No. 59).
However, before entering final
judgment, the court ordered that the
parties meet to discuss whether the
2014 CA could be modified in a manner
satisfactory to plaintiffs. Those meetings
occurred, but in a December 15, 2017,
Joint Status Report to the court, the
parties reported that they were
unsuccessful at reaching agreement.
Therefore, on December 18, 2017, the
court entered final judgment, vacating
our August 6, 2014, withdrawal, and
reinstating the proposed listing and
critical habitat rules. As a result, the
August 6, 2013, proposed listing and
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critical habitat rules (collectively
referred to as the 2013 proposed rules)
for Graham’s beardtongue and White
River beardtongue were reinstated, and
both species once again became
proposed for listing under the Act. The
court did not establish a firm deadline
for us to reach a new final listing
determination but provided that
plaintiffs could return to the court to
seek such a deadline if the Service did
not publish a new final determination
by September 30, 2019. The plaintiffs
have not yet done so.
On September 12, 2019, we reopened
the comment periods on the 2013
proposed rules for 30 days, ending
October 15, 2019 (84 FR 48090). We also
announced that we would reevaluate
the status of both species to determine
whether they meet the Act’s definition
of an ‘‘endangered species’’ or of a
‘‘threatened species,’’ or whether they
are not warranted for listing. We invited
the public to comment on the 2013
proposed rules, and we requested new
information regarding Graham’s
beardtongue and White River
beardtongue that had become available
since the publication of the 2013
proposed rules to inform our evaluation.
We also announced the availability of
new survey and monitoring information
that had become available since the
publication of our 2013 proposed rules,
and we announced the availability of
the final 2014 CA, a 2018 addendum to
the 2014 CA, and modified conservation
areas under the 2014 CA.
Supporting Documents
We prepared two Biological Reports
for Graham’s beardtongue and White
River beardtongue (Service 2021a,
Service 2021b) (hereafter referred to as
the Biological Reports), using concepts
from the Service’s species status
assessment (SSA) framework (Smith et
al. 2018, entire). The first Biological
Report (Service 2021a, entire) represents
a compilation of the best scientific and
commercial data available concerning
the current condition of the two species,
including the impacts of past and
present influences (both negative and
beneficial) on the beardtongues, as well
as a discussion of our recommendations
for avoidance buffers and surface
disturbance caps. The second Biological
Report (Service 2021b, entire) represents
a compilation of the best scientific and
commercial data available concerning
the projected future condition of the two
species, including the impacts of
influences (both negative and beneficial)
that are anticipated to affect the
beardtongues into the future. In
accordance with our joint policy on peer
review published in the Federal
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Register on July 1, 1994 (59 FR 34270),
and our August 22, 2016, memorandum
updating and clarifying the role of peer
review of listing actions under the Act,
we sought the expert opinions of three
appropriate subject matter specialists
regarding our Biological Report of
Current Condition and five appropriate
subject matter specialists regarding our
Biological Report of Future Condition
for the two beardtongues. We received
responses from three specialists on our
Biological Report of Current Condition
and from four specialists on our
Biological Report of Future Condition,
which informed the underlying analysis
and scientific basis for this document.
(Some peer reviewers reviewed both
biological reports). In preparing this
listing determination, we incorporated
the results of these reviews into our
final biological reports, as appropriate.
We also sent the Biological Reports to
partners, including the signatories to the
2014 CA (BLM; Utah DNR; SITLA;
PLPCO; Uintah County, Utah; Rio
Blanco County, Colorado). The
Biological Reports and other materials
relating to this listing determination can
be found on the Mountain-Prairie
Region website at https://www.fws.gov/
mountain-prairie/es/GrahamsAndWhite
RiverBeardtongue.php and at https://
www.regulations.gov under Docket No.
FWS–R6–ES–2019–0029.
Summary of Comments and
Recommendations
As stated above under Previous
Federal Actions, on August 6, 2013, we
published proposed rules to list
Graham’s beardtongue and White River
beardtongue as threatened species and
to designate critical habitat (78 FR
47590 and 47832). These proposed rules
each had a 60-day comment period,
ending October 7, 2013. We also
contacted appropriate Federal and State
agencies, scientific experts and
organizations, and other interested
parties and invited them to comment on
the proposals. Newspaper notices
inviting general public comment and
announcing our informational meeting
and public hearing were published in
the Salt Lake Tribune, Deseret News,
and Uintah Basin Standard. On May 6,
2014, we announced the reopening of
the public comment period on our 2013
proposed listing and proposed
designation of critical habitat rules until
July 7, 2014 (79 FR 25806). We received
requests for a public hearing, which was
held in Vernal, Utah, on May 28, 2014.
Subsequently, we withdrew the 2013
proposed rules and then later reinstated
them following litigation. As a result, on
September 12, 2019, we again reopened
the comment period on the 2013
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2109
proposed rules for 30 days (84 FR
48090). We then developed two
Biological Reports regarding the two
species’ current and future conditions
(Service 2021a, 2021b), each of which
underwent peer review. Responses to
comments we received during the
comment period for our September 12,
2019, document and from peer reviews
of the Biological Reports are provided
below. For additional responses to
comments for which there is no updated
information since 2014, please see the
August 6, 2014, withdrawal of the 2013
proposed rules (79 FR 46042). All
substantive information provided
during all peer reviews and all comment
periods has either been incorporated
directly into this final determination or
our Biological Reports as appropriate or
is addressed below. Comments related
to our 2013 proposed critical habitat
designation are not addressed here;
given the decision to withdraw the
listing proposal, no further assessment
of the proposed critical habitat
designation is necessary at this time.
Peer Review Comments
We reviewed all comments on the
Biological Reports that we received from
the peer reviewers for substantive issues
and new information regarding the
beardtongues. One peer reviewer
provided favorable support of the
metrics used to evaluate the
beardtongues’ current and future
condition and provided no edits to the
documents. Three peer reviewers
provided additional information,
clarifications, and suggestions, which
we have either incorporated into the
Biological Reports or addressed below.
(1) Comment: One reviewer stated
that it does not seem logical that large
Graham’s beardtongue populations
contain such a wide range of plant
abundance (between 171 and 19,735
plants). The reviewer recommended that
we provide different delineations of
small, medium, and large population
sizes for the beardtongues, and they
suggested the following categories:
Small population size between 0 and
100 plants; medium population size
between 101 and 1,000 plants; and large
population size greater than 1,000
plants.
Our Response: The recommendation
may be appropriate for species that do
not have a population viability analysis
(PVA), or a peer-reviewed PVA.
However, we delineated the population
size categories based on a peer-reviewed
PVA for the beardtongues. We
calculated the extinction risk of each
beardtongue population and considered
large Graham’s beardtongue populations
to have an extinction risk of less than
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five percent over a 50 year period
(USFWS 2021a, pp. 59–61). Large
Graham’s beardtongue populations must
have a minimum of 131 plants and the
largest population with 19,735 plants
(population 27) has a much lower
extinction risk (less than one percent)
compared to another population with
171 plants (between four and five
percent). Our large population
delineation identifies a lower threshold
than what the reviewer suggested since
it is based on a species-specific
evaluation rather than generalized
categories that do not take into account
a species’ life history or demography.
We considered the PVA results to
provide the best available information to
delineate the beardtongues’ population
size categories, and as such did not
make any changes in response to this
comment.
(2) Comment: One reviewer
recommended that our 300-ft (91.4-m)
avoidance buffer incorporate pollinator
foraging distances for the primary
pollinators to ensure adequate
beardtongue pollination and
reproduction.
Our Response: We considered the
effects to individual plants, populations,
and pollinators when developing our
avoidance buffer and surface
disturbance cap recommendations. Our
recommended 300-ft (91.4-m) avoidance
buffer protects individual beardtongue
plants from occupied habitat loss and
effects from fugitive dust and invasive
weeds. Our recommended surface
disturbance caps limit pollinator habitat
loss and were designed to be used in
tandem with the avoidance buffer to
maintain population-level processes
such as visitation and gene flow by
pollinators as well as the condition of
the beardtongues’ populations. We
evaluated pollinators and their needs at
the beardtongue population level to
support gene flow between plants and
population-level reproduction rather
than at an individual plant level. We
incorporated pollinator foraging
distances into our surface disturbance
cap recommendation to restrict the
amount of habitat loss and
fragmentation within a beardtongue
population’s pollinator habitat. We
delineated a population’s pollinator
habitat based on the foraging distance of
the beardtongues’ largest pollinators:
2,297 ft (700 m) for Graham’s
beardtongue and 1,640 ft (500 m) for
White River beardtongue. Based on our
review of the best available information
and current habitat loss within
pollinator habitat of beardtongue
populations, the needs of pollinators
and beardtongue reproduction can be
supported even with some loss of
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pollinator habitat that occurs outside of
the 300-ft (91.4-m) plant avoidance
buffer (USFWS 2021a, Appendix E).
Current levels of habitat loss within the
pollinator habitat of long-term
monitoring plots are low, ranging from
zero to five percent, with no statistically
significant negative effects to pollinator
visitation or beardtongue reproduction
(USFWS 2021a Appendix E). Published
literature indicates that these negative
effects are realized after considerable
habitat loss has occurred for other
species and habitats (USFWS 2021a
Appendix E). Our recommendations are
consistent with supporting the needs of
pollinators and population-level gene
flow within relatively intact habitat
conditions. Together, the avoidance
buffer and surface disturbance caps
within conservation areas should
conserve beardtongue plants and their
pollinators from stressors at two
different scales.
(3) Comment: One reviewer
commented that our knowledge of the
beardtongues’ current distribution is
incomplete due to lack of surveys on
Tribal lands and the State of Utah
Department of Wildlife Resources lands
in Range Unit 2. Surveys are needed in
these areas.
Our Response: We acknowledge the
lack of surveys in these areas in our
Biological Reports. Our determinations
on listing the two species are based on
the best available scientific information.
(4) Comment: One reviewer
commented that we omitted review
surveys, impacts, and new information
for the beardtongues from the Questar
Mainline 103 pipeline replacement
project. White River beardtongue plants
had established in a roadside berm that
was created by the initial disturbance
between 2009 and 2012. Field
observations indicate that White River
beardtongue plants were able to
establish or reestablish in roadcuts and
other disturbance areas.
Our Response: We reviewed the 2012
environmental assessment prepared by
the Federal Energy Regulatory
Commission (FERC) for this project, and
pre-construction surveys were
performed for the beardtongues;
however, no beardtongue plants were
located within the project right-of-way.
We mention in the Biological Reports
that White River beardtongue occupies
some disturbance areas and exhibits
some tolerance to habitat disturbance.
(5) Comment: One reviewer
commented that it may be worth noting
that sparsely vegetated shale barren
habitat on ridgelines that are considered
potential habitat for the beardtongues
are attractive off-road vehicle (OHV)
routes.
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Our Response: We mention the
potential for OHV use to occur in the
beardtongues’ habitat in the Biological
Reports. However, the best available
information does not indicate that OHV
use is occurring there or impacting
plants or populations. Therefore, we did
not consider OHV use as a stressor in
our analysis.
(6) Comment: One reviewer
commented that the beardtongues’
survey results in the Red Leaf lease area
on State lands may not be included in
the population estimates or maps
provided in the draft Biological Report.
Our Response: We reviewed our
dataset and confirmed that the
beardtongues’ survey results for this
area are included in the population
estimates and maps provided in the
Biological Report.
(7) Comment: One reviewer
recommended that we include the 2020
beardtongues’ survey results in
Colorado in the Biological Reports.
Our Response: We added the 2020
survey results to the Biological Reports
and considered them in our evaluation
of the beardtongues’ current and future
condition. These survey results
increased the number of Graham’s
beardtongue plants in population 22 by
565 plants and reduced the number of
White River beardtongue plants in
population 10 by 1,039 plants.
(8) Comment: One reviewer
questioned whether the high energy
development scenario is plausible over
the next 10 years because of the lack of
oil shale commercial development in
the Uinta Basin and the checkerboard
pattern of landownership that would
add complexity, time, and uncertainty
to the development of these lands.
Our Response: We intended the high
energy development scenario to
illustrate the worst-case impacts from
energy development. We also recognize
that this scenario, while plausible, may
be less likely to occur than other
scenarios, and that actual future impacts
may range anywhere between that
scenario and the current condition.
Public Comments
(9) Comment: Several commenters
stated that the Service should complete
an updated threat assessment and
provide the public with an opportunity
to comment prior to making a final
listing determination and critical habitat
designation. Commenters believe that
threats documented in the 2013
proposed listing rule are still present
and oil spills from pipeline ruptures are
a new threat associated with energy
development that was not previously
addressed. Commenters stated that
White River beardtongue should be
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listed as an endangered species, not a
threatened species, due to imminent
threats. One commenter mentioned the
landscape surrounding beardtongue
populations in Colorado has been
heavily fragmented by existing energy
development infrastructure; if
completed, a proposed rail line in the
Uinta Basin could increase energy
development impacts to the
beardtongues.
Our Response: We completed a new
threat assessment that is presented in
our Biological Reports (Service 2021a,
entire; 2021b, entire), and summarized
in this document. We evaluated
stressors to the beardtongues and
considered new information, including
current and projected future levels of
habitat loss and fragmentation within
the beardtongues’ pollinator habitat and
planned projects including the proposed
Uinta Basin rail line. The best available
information does not indicate that
negative impacts to the beardtongues
have occurred or are expected to occur
from oil spills.
(10) Comment: Multiple commenters
mentioned the need for improved
surface disturbance caps and buffers to
protect the plants from negative impacts
from development. The 300-ft (91.4-m)
buffer from surface-disturbing activities
as outlined in the 2014 CA is less than
the 2,297-ft (700-m) proposed critical
habitat area surrounding known
occurrences; buffers of at least 650 ft
(200 m) are needed to conserve
pollinators until the research by Barlow
and Pavlik is completed to determine
minimum habitat areas for populations.
Our Response: We evaluated the best
available information to inform our
recommended avoidance buffer and
surface disturbance caps in our
Biological Report of current condition
(Service 2021a, pp. 81–82). For more
information refer to our response to
Comment 2, above. We did not rely on
the Barlow and Pavlik road impact
evaluation to inform our avoidance
buffer recommendation, because we and
a peer reviewer identified concerns
regarding their assumption that roads
were major drivers of the beardtongues’
plant size and reproductive effort, and
the lack of evidence supporting this
assumption from published literature
(Barlow and Pavlik 2020, entire;
McNellis 2021a and 2021b, entire;
Service 2021a, p. 41). We considered the
Barlow and Pavlik road impact
evaluation to be an exploratory model
where the results are predictions to be
tested and do not demonstrate causation
(Service 2021a, p. 41).
(11) Comment: Multiple commenters
were concerned that the conservation
areas in the 2014 CA protect less acreage
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(44,373 ac) than the amount of area that
was proposed for critical habitat (67,959
ac (27,502 ha)). The 2014 CA protects
only 78 percent of the population of
Graham’s beardtongue and 59 percent of
the population of White River
beardtongue; the conservation areas do
not include all White River beardtongue
plants and habitat in the Book Cliffs,
which the commenters believed was
insufficient. They recommend
expanding conservation areas on
Federal and State lands to avoid listing
both species as threatened under the
Act. Multiple commenters stated that
critical habitat should include all plants
identified in surveys to-date. Three
commenters stated that research on
White River beardtongue identified the
taxon has small and isolated
populations with low levels of genetic
diversity (Rodriguez-Pen˜a et al. 2018),
and it is important to protect habitat for
as many populations as possible to
ensure future genetic viability.
Our Response: There are many ways
to achieve conservation of the
beardtongues. The proposed critical
habitat designation identified all
populations known in 2013, with the
understanding that critical habitat alone
would not convey or guarantee
conservation, because critical habitat
protections for plants do not apply on
non-Federal lands without a Federal
action. The proposed critical habitat
designations for the two beardtongue
species overlapped and totaled 75,846
ac (30,694 ha). Proposed critical habitat
on Federal lands alone would apply to
only 38 percent of the population of
Graham’s beardtongue (21,301 plants)
on 41,668 ac (16,862 ha), and 27 percent
of the population for White River
beardtongue (7,942 plants) on 5,758 ac
(2,330 ha) (Service 2021a, Appendix B,
p. 86). The 2014 CA conserves a smaller
amount of habitat in designated
conservation areas (42,993 ac (17,399
ha)) than we proposed as critical habitat
but provides protections to a similar
percentage of the Graham’s beardtongue
population and a much larger
percentage of the White River
beardtongue population than afforded
by proposed critical habitat on Federal
lands. The 2014 CA protects 41 percent
of Graham’s beardtongue plants (23,333
plants) and 66 percent (19,710 plants) of
White River beardtongue plants on
Federal and non-Federal lands (Service
2021b, pp. 44–45). The 2014 CA
conservation areas support 1,094 White
River beardtongue plants in the Book
Cliffs population to maintain a large
population size with a low risk of
extinction (less than 5 percent risk of
extinction over a 50-year period). In
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addition, the conservation areas are
strategically placed to provide habitat
connectivity, thereby conserving the
resiliency, redundancy, and
representation (e.g., genetic diversity) of
the beardtongues across their ranges
(Service 2021a, pp. 42–45; Penstemon
Conservation Team 2014, entire;
Penstemon Conservation Team 2018b,
2018c, entire).
(12) Comment: Multiple commenters
expressed concern that the private
parties will end their participation in
the 2014 CA in 2029.
Our Response: The duration of the
2014 CA is 20 years (until 2034) for
Federal, State, and county parties, and
15 years (until 2029) for private parties.
During this time, we hope that
information regarding the likelihood of
energy development beyond 2030
becomes available. We committed to
assess the status of the beardtongues by
December 31, 2028, prior to the private
parties leaving the agreement. If, during
or after this timeframe, either species
meets the Act’s definition of an
‘‘endangered species’’ or a ‘‘threatened
species,’’ we can act to protect the
species through the listing process. If
the beardtongues are listed under the
Act, the 2014 CA expires to avoid a
situation where the parties are bound to
both the commitments in the agreement
and the requirements of the Act. This
conservation framework provides a
consistent regulatory framework for
landowners or managers who may be
affected, while still protecting the
beardtongues under either scenario.
(13) Comment: Commenters expressed
concern that the voluntary nature of the
2014 CA by private parties is inadequate
and will lead to inconsistent
management of the beardtongues. The
Federal agencies do not have regulatory
mechanisms in place to enforce the
conservation measures in the 2014 CA
on Federal land, and there are no
regulatory mechanisms in place that
provide the necessary landscape-level
protections to the beardtongues from the
threats identified in the 2013 proposed
rules. The results of livestock
monitoring and assessments were not
made available to the public;
commenters questioned whether
monitoring was conducted according to
the schedule identified in the livestock
grazing plan.
Our Response: The 2014 CA was
developed by county, State, and Federal
entities that have the authority to
regulate and permit activities on lands
within their jurisdiction that overlap
with the beardtongues’ habitat. These
parties are implementing the voluntary
agreement and providing protections to
the beardtongues that we considered in
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this listing determination. We
summarize the regulatory mechanisms
implemented by each party, the
accomplishments of the 2014 CA,
livestock monitoring, and corrective
actions in our 2021 Biological Reports
(Service 2021a, pp. 42–45, 54–56;
2021b, pp. 43–48).
(14) Comment: Multiple commenters
stated the beardtongues continue to be
at risk of extinction due to small
population size and isolation. The 2018
population size is misleading and
unknown because: (a) Surveys were
performed inconsistently and
haphazardly across the beardtongues’
ranges and were not derived from
annual censuses or a scientifically
robust sampling design; (b) plants
counted in one year may have been
counted in subsequent years; and (c) the
Service’s assumptions that no
previously documented plants have
died of natural or human causes or that
all previously documented plants have
been replaced by new plants are
incorrect, and there is no data to
support them. One commenter noted
that some beardtongue species tend to
form an extended underground root
system and that the beardtongues’ total
population sizes could be much smaller
than our population estimates.
Our Response: We stated in our 2021
Biological Reports and past rulemakings
that the total known number of
beardtongues has increased over time
based on new survey information rather
than increasing population trends. Our
2018 population estimates were based
on long-term demographic monitoring
information that indicate adult
beardtongue plants are long-lived (30
years or more) and maintain high
survival rates, and populations are
generally stable (Pavlik et al. 2015,
entire). Therefore, it is reasonable to
assume that plants continue to persist
on the landscape unless there is human
modification of the habitat, or there are
high-intensity sheep grazing incidents.
We and our partners reviewed all survey
information and removed duplicate
records to minimize the doublecounting of individual plants. There is
no indication that the beardtongues
form extended underground root
systems based on past excavations and
translocations of individual plants.
(15) Comment: Multiple commenters
requested an extension of the public
comment period and the release of
survey results and livestock monitoring
data that became available after the
publication of the 2013 proposed rules.
Our Response: We have held three
comment periods on the proposed rules.
We held our first comment period for 60
days, from August 6 to October 7, 2013
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(see 78 FR 47590 and 47832); our
second comment period for 60 days,
from May 6 to July 7, 2014 (see 79 FR
25806), during which we also held a
public information meeting and public
hearing on May 28, 2014; and our third
comment period for 30 days, from
September 12 to October 15, 2019 (see
84 FR 48090). Therefore, we have
provided sufficient opportunities for the
public to comment on the proposals.
During each of the three comment
periods, we made available any survey
and livestock monitoring data that we
had at that time. Specifically, during our
third public comment period in 2019,
we announced the availability of the
latest survey results and other
information that had become available
since 2013.
(16) Comment: One commenter stated
that incompatible livestock grazing is
occurring on Federal lands, all
beardtongue sites within Federal
conservation areas should meet BLM
Rangeland Health Standards, and
monitoring should continue to assess
habitat conditions and inform
management decisions.
Our Response: Livestock grazing
appears to be compatible with
conservation of the beardtongues except
for intensive sheep grazing events that
occur in localized areas (USFWS 2021a,
pp. 54–56). The BLM is addressing
livestock impacts to the beardtongues
on Federal lands as per the 2014 CA.
The 2014 CA states that BLM will
monitor beardtongues’ impacts from
grazing and will adjust grazing regimes
accordingly to reduce associated
impacts. For example, BLM
implemented corrective actions that
were successful in removing grazing
impacts to Graham’s beardtongue in the
Raven Ridge Area of Critical
Environmental Concern (ACEC) in
Colorado, and BLM continues to
monitor livestock impacts to the
beardtongues and evaluate rangeland
health (Service 2021a, p. 55). BLM is
required to manage rangelands as per
the requirements of 43 CFR part 4100,
subpart 4180 (‘‘Fundamentals of
Rangeland Health and Standards and
Guidelines for Grazing Administration’’
(Rangeland Health)) and implement the
agency’s policy guidelines identified in
the Standards for Rangeland Health.
(17) Comment: A commenter stated
that surface disturbance of all kinds
affects the beardtongues’ pollinators;
cattle trampling results in greater
impacts to the ground surface than other
herbivores.
Our Response: The best available
information indicates that the
beardtongues maintain a diverse
pollinator assemblage and adequate
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reproduction under permitted grazing
regimes. Monitored populations of the
beardtongues that overlap active grazing
allotments reproduce by seed on an
annual basis and demonstrate
reproductive rates that are not
pollinator-limited (Barlow and Pavlik
2020, p. 5).
(18) Comment: A commenter stated
that monitoring reports indicate that
herbivory from many sources may
impact the beardtongues’ ability to
successfully replenish the seedbank.
Herbivory resulted in high levels of
stress to Graham’s beardtongue in 2014,
and low seedling survivorship.
Our Response: Herbivory to the
beardtongues appears to be a natural
stressor to beardtongue individuals and
is primarily attributed to native grazers
(e.g., rodents, rabbits), rather than
livestock (Service 2021a, p. 54).
Monitored populations of both species
continue to remain stable despite the
regular frequency, and occasional high
levels, of herbivory.
(19) Comment: The State of Utah
provided information that the number of
new oil and gas wells dropped by 67
percent between 2014 and 2015, due to
the drop in crude oil and natural gas
prices; should prices rebound, the
increasing use of horizontal well
drilling could reduce the amount of
future surface disturbance. Should the
market demand for oil shale increase to
an economically favorable price,
development of this resource may be
focused on the richer Piceance Basin in
Colorado rather than on the Uinta Basin
in Utah. Because of the low likelihood
of development from oil and gas in the
foreseeable future, the Service should
not list the beardtongues. Another
commenter stated that a determination
to list a species as a threatened species
under the Act requires a determination
as to the likelihood rather than the mere
prospect that a species will or will not
become endangered in the foreseeable
future. The likely threshold of Graham’s
and White River beardtongues to
become an endangered species in the
foreseeable future was suspect in the
August 6, 2013, proposed listing rule
(78 FR 47590); was mitigated by the
2014 CA; and is better stated as unlikely
with the discoveries of new
populations, the species’ range
expansion, and the success in research
resulting from the 2014 CA.
Our Response: We note that the Act
defines a threatened species as a species
that is ‘‘likely to become an endangered
species within the foreseeable future
throughout all or a significant portion of
its range’’. The term ‘‘foreseeable
future’’ extends only so far into the
future as the Service can reasonably
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determine that both the future threats
and the species’ responses to those
threats are likely. In other words, the
foreseeable future is the period of time
in which we can make reliable
predictions. See the Regulatory
Framework section below for further
information on how we make
determinations on whether to list a
species under the Act.
We evaluated the likelihood and
location of future energy development
(oil shale, tar sands, traditional oil and
gas development) within the
beardtongues’ ranges in our Biological
Reports based on the best available
information, expert opinion, and peer
review (Service 20201a, pp. 45–54;
Service 20201b, pp. 15–38, Appendix).
Our analysis of projected future energy
development evaluates worst-case
impacts under the moderate and high
energy development scenarios until
2030, which is the date through which
reliable predictions can be made based
on current information.
(20) Comment: Commenters including
the State of Utah stated that the
rangewide population estimates for the
beardtongues have greatly increased
since 2013. The known population of
Graham’s beardtongue increased by 177
percent, and the known population of
White River beardtongue increased by
284 percent.
Our Response: As stated by the
commenters, the rangewide population
estimates for the beardtongues have
greatly increased since 2013, based on
new survey information and a genetic
evaluation of White River beardtongue.
Although we want to emphasize that the
increase in population size does not
mean the total population is increasing.
Rather, additional survey results
provide a more complete picture of how
many beardtongue plants exist across
their ranges (USFWS 2021a, pp. 21, 28).
Monitoring indicates the beardtongue
populations are stable in size.
(21) Comment: The State of Utah and
other commenters expressed support for
the 2014 CA as an appropriate
regulatory mechanism to promote
research, surveys, and stakeholder
engagement. Uintah County, Utah,
enacted a zoning ordinance for a 15-year
period until 2029, to apply surface
disturbance caps and implement a 300ft (91.4-m) avoidance buffer for 2014 CA
conservation areas on private lands. The
signatories to the 2014 CA have
provided considerable staff time and
funding to implement the agreement;
successfully implemented surveys,
research, monitoring, and planning
commitments; expanded conservation
areas; committed to providing a
summary report of accomplishments
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every 5 years; and extended the 2014
CA protections on State and Federal
lands for a total of 20 years until July
25, 2034. Uintah County expressed their
commitment to the conservation of the
beardtongues and stated the goal of the
2014 CA is to ensure the beardtongues
thrive long after the expiration of the
agreement.
Our Response: The signatories are
implementing the 2014 CA, and their
many contributions were summarized
by State members of the agreement
(Sheppard and Wheeler 2020, entire).
New commitments made by signatories
were summarized in the 2014 CA’s 2018
addendum, which includes the
Service’s commitment to assess the
beardtongues’ status by December 31,
2028. We have considered the 2014 CA
and its 2018 addendum in this listing
determination.
Background
A comprehensive review of the
taxonomy and morphology, habitat, life
history and resource needs, population
distribution and status, and pollinator
information for both Graham’s
beardtongue and White River
beardtongue is presented in our
Biological Report of current condition
(Service 2021a, pp. 13–41) and is briefly
summarized here.
Graham’s and White River
beardtongues are endemic plants found
in northeastern Utah and northwestern
Colorado. Graham’s beardtongue occurs
in 27 populations, with a total
population of 56,385 individuals, across
the Uinta Basin in Duchesne and Uintah
Counties in Utah and Rio Blanco County
in Colorado (Service 2021a, pp. 21–27).
White River beardtongue occurs in 17
populations, with a total population of
29,902 individuals across the Uinta
Basin and at an isolated location in the
Book Cliffs in Grand and Uintah
Counties in Utah and Rio Blanco County
in Colorado (Service 2021a, pp. 28–33).
For the purposes of our analysis, we
grouped the populations for each
species into five range units (i.e.,
metapopulation areas). The two species
overlap with each other in four of their
range units in the central and eastern
portion of their ranges in Utah and
Colorado. The occupied habitat area for
Graham’s and White River beardtongues
is 9,585 ac and 3,462 ac of habitat,
respectively. Their pollinator habitat
area includes beardtongue occupied
habitat and a larger pollinator foraging
area, which collectively comprise
91,232 ac and 29,476 ac for Graham’s
beardtongue and White River
beardtongue, respectively.
Graham’s and White River
beardtongues have highly specific soil
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requirements and occupy exposed oil
shale strata of the Green River geologic
formation. The beardtongues are longlived perennial plant species that flower
in the spring and summer months, and
both species require pollinators for
maximum plant reproduction. Plant
survival and successful recruitment
require suitable soils with microsites for
establishment and growth. The sparse
canopy coverage of associated
vegetation likely results in low
competition from other plants, and the
beardtongues appear to be poor
competitors with weeds. Reproductive
success and maintenance of genetic
diversity of these two beardtongues
require habitat that supports generalist
and specialist pollinators, primarily
bees and a specialist wasp. For more
detailed information about the biology
of both beardtongue species, see our
Biological Report of current condition
(Service 2021a, pp. 13–41).
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533)
and its implementing regulations (50
CFR part 424) set forth the procedures
for determining whether a species is an
endangered species or a threatened
species. The Act defines an endangered
species as a species that is ‘‘in danger
of extinction throughout all or a
significant portion of its range,’’ and a
threatened species as a species that is
‘‘likely to become an endangered
species within the foreseeable future
throughout all or a significant portion of
its range.’’ The Act requires that we
determine whether any species is an
endangered species or a threatened
species because of any of the following
five factors:
(A) The present or threatened
destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial,
recreational, scientific, or educational
purposes;
(C) Disease or predation;
(D) The inadequacy of existing
regulatory mechanisms; or
(E) Other natural or manmade factors
affecting its continued existence.
These factors represent broad
categories of natural or human-caused
actions or conditions that could have an
effect on a species’ continued existence.
In evaluating these actions and
conditions, we look for those that may
have a negative effect on individuals of
the species, as well as other actions or
conditions that may ameliorate any
negative effects or may have positive
effects.
We use the term ‘‘threat’’ to refer in
general to actions or conditions that are
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known to or are reasonably likely to
negatively affect individuals of a
species. The term ‘‘threat’’ includes
actions or conditions that have a direct
impact on individuals (direct impacts),
as well as those that affect individuals
through alteration of their habitat or
required resources (stressors). The term
‘‘threat’’ may encompass—either
together or separately—the source of the
action or condition or the action or
condition itself.
However, the mere identification of
any threat(s) does not necessarily mean
that the species meets the statutory
definition of an ‘‘endangered species’’ or
a ‘‘threatened species.’’ In determining
whether a species meets either
definition, we must evaluate all
identified threats by considering the
expected response by the species, and
the effects of the threats—in light of
those actions and conditions that will
ameliorate the threats—on an
individual, population, and species
level. We evaluate each threat and its
expected effects on the species, then
analyze the cumulative effect of all of
the threats on the species as a whole.
We also consider the cumulative effect
of the threats in light of those actions
and conditions that will have positive
effects on the species, such as any
existing regulatory mechanisms or
conservation efforts. The Secretary
determines whether the species meets
the definition of an ‘‘endangered
species’’ or a ‘‘threatened species’’ only
after conducting this cumulative
analysis and describing the expected
effect on the species now and in the
foreseeable future.
The Act does not define the term
‘‘foreseeable future,’’ which appears in
the statutory definition of ‘‘threatened
species.’’ Our implementing regulations
at 50 CFR 424.11(d) set forth a
framework for evaluating the foreseeable
future on a case-by-case basis. The term
‘‘foreseeable future’’ extends only so far
into the future as the Service can
reasonably determine that both the
future threats and the species’ responses
to those threats are likely. In other
words, the foreseeable future is the
period of time in which we can make
reliable predictions. ‘‘Reliable’’ does not
mean ‘‘certain’’; it means sufficient to
provide a reasonable degree of
confidence in the prediction. Thus, a
prediction is reliable if it is reasonable
to depend on it when making decisions.
It is not always possible or necessary
to define foreseeable future as a
particular number of years. Analysis of
the foreseeable future uses the best
scientific and commercial data available
and should consider the timeframes
applicable to the relevant threats and to
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the species’ likely responses to those
threats in view of its life-history
characteristics. Data that are typically
relevant to assessing the species’
biological response include speciesspecific factors such as lifespan,
reproductive rates or productivity,
certain behaviors, and other
demographic factors.
Analytical Framework
The Biological Reports document the
results of our comprehensive biological
review of the best scientific and
commercial data regarding the status of
the two species, including an
assessment of the potential threats to the
species. The Biological Reports do not
represent a decision by the Service on
whether these species should be listed
as endangered or threatened species
under the Act. However, they do
provide the scientific basis that informs
our regulatory decisions, which involve
the further application of standards
within the Act and its implementing
regulations and policies. The following
discussions provide summaries of the
key results and conclusions from the
Biological Reports; the full Biological
Reports can be found on the MountainPrairie Region website at https://
www.fws.gov/mountain-prairie/es/
GrahamsAndWhiteRiver
Beardtongue.php and at https://
www.regulations.gov under Docket No.
FWS–R6–ES–2019–0029.
To assess Graham’s beardtongue and
White River beardtongue viability, we
used the three conservation biology
principles of resiliency, redundancy,
and representation (Shaffer and Stein
2000, pp. 306–310; Smith et al. 2018, p.
304) (hereafter referred to as the 3Rs).
Briefly, resiliency supports the ability of
the species to withstand environmental
and demographic stochasticity (for
example, wet or dry, warm or cold
years), redundancy supports the ability
of the species to withstand catastrophic
events (for example, droughts, large
pollution events), and representation
supports the ability of the species to
adapt over time to long-term changes in
the environment (for example, climate
changes). In general, the more resilient
and redundant a species is and the more
representation it has, the more likely it
is to sustain populations over time, even
under changing environmental
conditions. Using these principles, we
identified the species’ ecological
requirements for survival and
reproduction at the individual,
population, and species levels, and
described the beneficial and risk factors
influencing the species’ viability.
Our Biological Reports used many of
the concepts of the Service’s SSA
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framework (Smith et al. 2018, entire)
and followed sequential stages to
characterize the viability of the
Graham’s and White River
beardtongues. In our Biological Report
of current condition (Service 2021a), we
first evaluated the individual species’
life-history needs. The next stage
involved an assessment of the historical
and current condition of the species’
demographics and habitat
characteristics, including an
explanation of how each species arrived
at its current condition. In our
Biological Report of future condition
(Service 2021b), the final stage involved
making predictions about the species’
responses to positive and negative
environmental and anthropogenic
influences. Throughout all of these
stages, we used the best available
information to characterize viability as
the ability of a species to sustain
populations in the wild over time. We
use this information to inform our
regulatory decisions.
Summary of Biological Status and
Threats
In preparing the Biological Reports for
Graham’s and White River
beardtongues, we reviewed available
reports and peer-reviewed literature, we
incorporated survey information, and
we sought information from experts
regarding the species’ primary stressors
to further refine our analysis. We
identified uncertainties and data gaps in
our assessment of the current and future
status of both species. In this
discussion, we briefly summarize the
biological condition of both species and
their resources, the influence of those
conditions on the species’ overall
viability, and the risks to that viability.
For a full description of our analysis of
each species’ biological status, current
condition, and projected future
condition, see our Biological Reports
(Service 2021a, 2021b).
Life-History Needs
At the individual level, both Graham’s
beardtongue and White River
beardtongue need suitable soils (shallow
soils with virtually no soil horizon
development with a surface usually
mixed with fragmented shale), suitable
precipitation (6 to 12 inches annually),
and suitable temperatures (including a
minimum of 45 consecutive days less
than 40 degrees Fahrenheit (°F) in the
winter months) to support plant growth
(Service 2021a, pp. 17, 20). To support
plant reproduction, the plants need
visitation and pollination by bee and
wasp pollinators, and floral resources
for pollinators provided by the
associated plant community, including
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the presence of other beardtongue
species (Service 2021a, pp. 17, 20).
Suitable microsites that provide cover or
shelter for seed germination,
establishment, and growth are also
needed to support both species (Service
2021a, pp. 17, 20).
For Graham’s and White River
beardtongues to maintain viability, their
populations or some portion of their
populations must be sufficiently
resilient (i.e., able to sustain
populations in the face of
environmental variation). At the
population level, important habitat
needs for the beardtongues include: (1)
Suitable soil substrate to maximize
recruitment and survival within the
population (soil and microsite quality);
(2) sufficient floral resources to ensure
pollinator visitation and maximize adult
reproductive output; (3) suitable climate
conditions (temperature, moisture)
within species’ physiological tolerances
to maximize population growth and
size; and (4) sufficient seed dispersal
and contribution to the seed bank to
support population stability or growth.
If these habitat factors occur over an
area of sufficient size to support a
sufficient population size and the
demographic needs of the species, we
anticipate plant populations will retain
sufficient resiliency to withstand
natural stochastic events (Service 2021a,
pp. 33–34).
Based on their population
demographics, we expect that survival
of established plants (i.e., vegetative and
adult (reproductive) plants) and high
reproductive output are the most
important factors contributing to the
growth rate and size of populations
(Service 2021a, pp. 34–35). Lastly,
resiliency of populations is also
influenced by the degree of connectivity
among populations (Service 2021a, p.
35).
At the species level, Graham’s and
White River beardtongues each need
multiple, sufficiently resilient,
connected populations that represent
the range of ecological and genetic
diversity across their ranges (Service
2021a, p. 35). Populations that are
connected allow for immigration and
emigration across the landscape and
ensure gene flow and recolonization
following extirpation of individual sites
or populations (Auffret et al. 2017, pp.
1–3). In order to adapt to changing
physical and biological conditions, each
species needs to maintain its genetic
and ecological diversity (representation)
and an adequate number and
distribution of sufficiently resilient
populations across its range
(redundancy).
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Because the beardtongues rely on
pollinators to maximize seed production
and genetic diversity of plant
populations, we also note that the
persistence of the pollinator assemblage
for Graham’s and White River
beardtongues depends on maintaining
nesting sites and floral resources to
support pollinator needs (Service 2021a,
pp. 35–36). Broadly, the needs of
Graham’s and White River beardtongue
pollinators include intact habitat
conditions and an abundance of floral
resources throughout the growing
season. For an in-depth discussion of
the beardtongues’ pollinator assemblage,
pollinator life history, and the needs of
pollinators, see our Biological Report on
current condition (Service 2021a, pp.
35–41).
Summary of Factors Influencing
Viability
As mentioned above in Regulatory
Framework, a species may be
determined to be an endangered or
threatened species due to one or more
of the five factors described in section
4(a)(1) of the Act: (A) The present or
threatened destruction, modification, or
curtailment of its habitat or range; (B)
overutilization for commercial,
recreational, scientific, or educational
purposes; (C) disease or predation; (D)
the inadequacy of existing regulatory
mechanisms; or (E) other natural or
manmade factors affecting its continued
existence. Potential stressors we
evaluated for Graham’s and White River
beardtongue in our Biological Reports
included: Three types of energy
exploration and development: Oil shale,
tar sands, and traditional oil and gas
drilling (Factor A); road construction
(Factor A); herbivory (Factor C);
invasive weeds (Factor A); small
population size (Factor E); and climate
change (Factors A and E). We also
evaluated how existing regulatory
mechanisms (Factor D) or other
conservation measures (primarily the
2014 CA and 2018 addendum) may
lessen the impacts of these stressors.
The best available information does not
indicate that overutilization (Factor B) is
a threat to either beardtongue species. A
brief summary of the potential factors
affecting Graham’s and White River
beardtongues is presented below; for a
full description of our evaluation of the
effects of these stressors and
conservation efforts, refer to the
Biological Reports (Service 2021a, pp.
41–63; Service 2021b, pp. 15–48).
Conservation Agreement
Following publication of our August
6, 2013, proposed rules (78 FR 47590
and 47832), we entered into a 2014 CA
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with the following parties: BLM; Utah
DNR; SITLA; Uintah County, Utah; the
Utah PLPCO; and Rio Blanco County,
Colorado (Penstemon Conservation
Team 2014, entire). The 2014 CA was
designed to specifically address the
threats identified in our August 6, 2013,
proposed rule to list the two species (78
FR 47590), and expand the protections
afforded to the beardtongues on Federal
lands. The 2014 CA also provides the
species protections on certain nonFederal lands.
The parties committed to a number of
conservation actions, including the
establishment of 44,373 ac (17,957 ha)
of occupied and suitable habitat as
protected conservation areas on Federal
and non-Federal lands. Within the
designated conservation areas, surface
disturbance caps are applied to limit the
loss and fragmentation of habitat from
development, in conjunction with a
300-ft (91.4-m) avoidance buffer
between disturbance and beardtongue
plants. Uintah County enacted an
ordinance to enforce the surface
disturbance caps and avoidance buffer
within conservation areas on private
lands (Penstemon Conservation Team
2014, pp. 28, 35). Additionally, BLM
implements a minimum 300-ft (91.4-m)
avoidance buffer wherever beardtongue
plants occur on Federal lands, as
identified in BLM’s resource
management plans. The parties also
developed monitoring plans that
include adaptive management to
address the cumulative impacts from
livestock grazing, invasive weeds, small
population size, and climate change by
continuing species monitoring,
monitoring climate, reducing impacts
from grazing when and where detected,
and controlling invasive weeds.
Today, the 2014 CA remains in place,
and in 2018, the parties added 2,339 ac
(947 ha) as new conservation areas for
White River beardtongue habitat on
Federal and State (SITLA) lands and
removed 115 ac (47 ha) of low priority
conservation areas (Penstemon
Conservation Team 2018b and 2018c,
entire). The parties also signed an
addendum (Penstemon Conservation
Team 2018d, entire) to extend the term
of the 2014 CA by an additional 5 years,
until 2034, for the Federal, State
(SITLA, DNR), and county parties. The
private lands in Utah will be released
from the 2014 CA when the original
term ends in 2029. For the purposes of
our analysis, we considered only the
2014 CA protections that are afforded to
the beardtongues until 2034. Additional
conservation areas under the 2014 CA
were designated as ‘‘interim’’ and only
provide shorter-term protections.
However, we did not consider plants in
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these interim areas as protected for the
purposes of our analysis. We are
uncertain of the likelihood of 2014 CA
protections continuing beyond 2034
when the CA expires; however, it may
be possible to renew the CA with
willing partners. As part of the CA, the
Service committed to assess the status of
the beardtongues in 2028, prior to the
expiration of protections on private
lands. For additional discussion and
details on the 2014 CA and its
accomplishments, see our Biological
Reports (Service 2021a, pp. 42–45;
Service 2021b, pp. 43–48).
Other Regulatory Mechanisms
While the 2014 CA is a voluntary
agreement, the State of Utah (SITLA and
PLPCO), Uintah County (Utah), and Rio
Blanco County (Colorado) used their
regulatory authority to implement
specific protections as outlined in the
2014 CA (Penstemon Conservation
Team 2014, and 2018 a, b, c, entire;
Service 2021, pp. 39–43). Utah State law
protects the beardtongues on State
(SITLA) designated conservation areas
and enforces the restrictions identified
in the 2014 CA (see title 53C of the Utah
Code, at chapter 2, part 2, section 202
(53C–2–202), and the Utah
Administrative Code, School and
Institutional Trust Lands, at title 850,
rule 150 (R850–150)). Uintah County
enacted a zoning ordinance to enforce
the surface disturbance caps and an
avoidance buffer within conservation
areas on private lands until 2029
(Penstemon Conservation Team 2014,
pp. 28, 35; Uintah County 2018, entire;
Penstemon Conservation Team 2019,
Appendix A). No other regulatory
mechanisms provide protections to the
beardtongues on private or State lands
in Utah and Colorado.
Other regulatory mechanisms provide
protections to Graham’s beardtongue
and White River beardtongue on Federal
(BLM) lands. Graham’s and White River
beardtongues are BLM sensitive plant
species in Utah and Colorado, and are
afforded protections at least comparable
to (if not greater than) species that are
candidates for Federal listing (BLM
2008a, p. 43). In Utah, the BLM Vernal
Field Office’s resource management
plan (RMP), as amended, is the
regulatory framework for BLM land
management where the beardtongues
occur (BLM 2008b, entire). In Colorado,
the BLM White River Field Office’s
RMP, as amended, is the regulatory
framework for BLM land management
where the beardtongues occur (BLM
1997, entire; BLM 2015, entire). The
protections in these RMPs include a
300-ft (91.4-m) avoidance buffer, surface
disturbance restrictions on steep slopes,
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areas that are unavailable for leasing
and that have no surface occupancy
(NSO) stipulations, and ACECs. For
additional detail on all of these
regulatory mechanisms, see our
Biological Report of future condition
(Service 2021b, pp. 46–48).
Oil Shale
Oil shale exploration (e.g., research,
exploration, and development) activities
occur on State and private lands within
the range of the beardtongues. Oil shale
exploration and development activities
have the potential to destroy
beardtongue habitat, plants, and
populations. Currently, no exploration
activities take place on BLM lands and
no plans for commercial-scale
development of oil shale exist within
the range of both species in Utah and
Colorado (BLM 2013, entire; Service
2019d, entire; Service 2021a and b,
entire). To date, two oil shale
exploration projects have resulted in the
loss of 276 ac (112 ha) of Graham’s
beardtongue pollinator habitat and 246
Graham’s beardtongue individuals in
Population 13 on State lands (Red Leaf
Resources 2013, entire; Red Leaf
Resources 2014, entire; The Oil Mining
Company 2014, entire; Service 2021a,
pp. 45–48).
There are 10,334 ac (4,182 ha) and
1,997 ac (808 ha) of Graham’s and White
River beardtongue pollinator habitat,
respectively, under lease or that have a
Utah Division of Oil, Gas and Mining
mine permit (includes exploration,
small and large mine permits) for oil
shale (Service 2021a, pp. 45–48). These
areas contain 35 percent (19,476 plants)
and 13 percent (4,314 plants) of
Graham’s and White River beardtongue
total populations, respectively. Within
oil shale lease and permit areas,
conservation areas under the 2014 CA
afford protections to 561 Graham’s
beardtongue plants and 1,678 White
River plants with caps on new
development and use of an avoidance
buffer. The majority of beardtongue
habitat within oil shale lease areas has
not been impacted by oil shale
exploration activities. Aside from the
loss of Graham’s beardtongue habitat
reported above, the disturbance within
lease and permit areas is the result of
existing roads. We do not anticipate oil
shale exploration and development
activities to occur within designated
conservation areas because of the caps
on surface disturbance in the 2014 CA.
Based on past and current exploration
and commercial development activities,
expert opinion, and the best available
information, we consider exploration of
oil shale from 2020–2030 to be likely on
State and private lands with high
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economic potential within the
beardtongues’ ranges (Service 2021b,
pp. 15–17). However, we consider
commercial development of oil shale to
be about as likely as not on State and
private lands, and unlikely on Federal
lands within the beardtongues’ ranges
(Service 2021b, pp. 15–17).
Tar Sands
Tar sands exploration and
development activities are occurring on
private, State, and BLM lands outside of
Graham’s and White River beardtongues
habitat in the Uinta Basin (Service
2021a, pp. 48–49). Tar sands
exploration and development activities
have the potential to destroy
beardtongue habitat, plants, and
populations. To date, tar sand
exploration and development activities
have not resulted in the loss of
beardtongue habitat or plants. One tar
sands lease area overlaps the Book Cliffs
population of White River beardtongue;
however, no White River beardtongue
plants or habitat within this lease area
have been impacted by tar sand
exploration activities. The 2014 CA
affords protections to 306 plants and 97
ac (39 ha) within the State lands portion
of the lease area and we do not
anticipate tar sand exploration and
development activities to occur within
designated conservation areas because
of the caps on surface disturbance.
There are no tar sand leases within
Graham’s beardtongue habitat.
Based on past and current exploration
and commercial development activities,
expert opinion, and the best available
information, we consider exploration of
tar sands from 2020–2030 to be likely on
State and private lands including the PR
Springs South area (Service 2021b, pp.
24–26). However, we consider
commercial development of tar sands to
be about as likely as not on State and
private lands including the PR Springs
South area, and unlikely on Federal
lands (Service 2021b, pp. 24–28) within
the species ranges.
Traditional Oil and Gas
Traditional oil and gas exploration
and development activities are
occurring on private, State, and BLM
lands within Graham’s and White River
beardtongues habitat (Service 2021a, pp.
49–53). Traditional oil and gas
exploration and development activities
have the potential to destroy
beardtongue habitat, plants, and
populations. The best available
information indicates that no loss of
beardtongue plants from these activities
has occurred. However, traditional oil
and gas exploration and development
activities have resulted in the loss of
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less than one percent of the total
pollinator habitat area for both species
(Federal Energy Regulatory Commission
2012, pp. 24, 25; Lewinsohn 2019,
entire; Moore 2019, entire).
Approximately 56 percent of Graham’s
beardtongue pollinator habitat and 39
percent of White River beardtongue
pollinator habitat on State and BLM
lands are leased for traditional oil and
gas development. Within traditional oil
and gas lease areas, conservation areas
under the 2014 CA afford protections to
34 percent and 42 percent of the
Graham’s beardtongue habitat and
plants under lease, and 36 percent and
32 percent of the White River
beardtongue habitat and plants under
lease. Overall, traditional oil and gas
exploration and development have
resulted in a low amount of habitat loss
for the two beardtongues to date. The
majority of beardtongue pollinator
habitat within lease areas is relatively
intact and undisturbed.
Based on past and current exploration
and commercial development activities,
expert opinion, and the best available
information, we consider exploration of
traditional oil from 2020–2030 to be
likely on Federal, State, and private
lands within Uintah County in a
Mancos shale deposit (the Mancos B
play), and do not expect exploration of
natural gas to occur, as it is already
complete (Service 2021b, pp. 32–33).
However, we consider commercial
development of natural gas to be likely
on Federal, State, and private lands, and
commercial development of oil to be
unlikely within the species’ ranges
(Service 2021b, pp. 32–34).
Road Construction and Maintenance
Many unpaved county roads cross
through Graham’s and White River
beardtongue habitat, and most of these
roads have existed for decades (Service
2021a, pp. 53–54). Road construction
and maintenance activities have the
potential to destroy beardtongue habitat,
plants, and populations. Plants and
populations located near development
activities are prone to the effects of dust,
weed encroachment, habitat
fragmentation, and pollinator
disturbance. To date, existing roads and
road construction have been the cause
of the majority of the loss of
beardtongue pollinator habitat.
Approximately 1 percent and 1.5
percent of the total pollinator habitat for
Graham’s and White River beardtongue,
respectively, have been lost to road
construction. Road construction and
paving projects occur infrequently, and
we are not aware of other road
construction or maintenance projects
that are proposed to occur in areas
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where they would impact Graham’s
beardtongue or White River beardtongue
(Baldwin 2019, entire; Federal Highway
Administration (FHWA) 2020, entire;
UDOT 2020, entire).
Herbivory
Invertebrates, wildlife, and livestock
graze individuals of Graham’s and
White River beardtongues (Sibul and
Yates 2006, p. 9; Dodge and Yates 2010,
p. 9; 2011, pp. 9, 12; UNHP 2012, entire;
78 FR 47590, August 6, 2013; 79 FR
46042, August 6, 2014; Penstemon
Conservation Team 2015b, entire).
Herbivory is primarily due to native
grazers rather than livestock (Penstemon
Conservation Team 2019a, p. 8).
Presumably, beardtongues are adapted
to herbivory by native grazers, which
may explain why monitored
populations continue to remain stable
despite occasional high levels of
herbivory by native grazers. Most of the
Graham’s and White River beardtongue
populations (99 percent) occur within
BLM livestock grazing allotments,
except for where the two species occur
on private lands (Service 2021a, p. 55).
As part of the 2014 CA, the conservation
team developed a livestock grazing
management plan (Penstemon
Conservation Team 2015b, entire), and
BLM is monitoring and implementing
corrective actions (Service 2021a, pp.
55–56). For example, following a heavy
sheep grazing incident at Raven Ridge
in Colorado, BLM conducted a site visit
with the permittee, reviewed maps of
avoidance areas for sheep trailing and
bedding, and repaired a fence at the
Raven Ridge ACEC boundary. These
actions appear to be effective, and sheep
grazing has not been detected within the
ACEC since 2014 (Service 2021a, p. 56).
Overall, herbivory and livestock
grazing are not primary drivers of the
beardtongues’ current and future
condition. The best available
information does not indicate that
future herbivory impacts would result
in any negative population-level impact
to the beardtongues. There is the
potential for herbivory impacts to
increase in populations on non-Federal
lands that may be impacted by energy
development, because herbivory from
native grazers and livestock may
increase where available forage is
reduced as a result of energy
development (Service 2021b, pp. 38–
39). We expect future herbivory impacts
would be addressed by land
management actions and would not
increase in beardtongues’ populations
on Federal lands, where the BLM has
committed to take corrective actions.
However, there is no commitment to
take corrective actions within
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beardtongue populations affected by
development on non-Federal lands if
future herbivory impacts increase
(Service 2021b, pp. 38–39).
Invasive Weeds and Wildfire
Invasive weeds are present but not
extensive across most of the
beardtongues’ pollinator habitat, and the
primary weed is cheatgrass. Invasive
weeds have the potential to negatively
impact seedling recruitment, plant
abundance, and population trends of the
beardtongues and other native plants
through competitive exclusion, niche
displacement, and changes in insect
predation. Beardtongue populations
with high cheatgrass cover (i.e.,
introduced annual grasslands greater
than 20 percent of habitat area) may be
at risk of an altered wildfire regime
(Link et al. 2006, p. 116). Based on our
review of the existing vegetation types,
most beardtongue populations contain
low amounts of cheatgrass (less than 5
percent of habitat area), which is
consistent with monitoring reports for
both species (Service 2021a, pp. 13–20,
57–59; SWCA Environmental
Consultants 2014, p. 16). We expect
weed levels to remain low in intact
beardtongue occupied habitat and
increase in disturbed occupied habitat
(Service 2021a, pp. 57–59; Service
2021a, pp. 8–11, Appendix B). The
effects of invasive weeds may increase
in populations that overlap with energy
development (Service 2021b, p. 39). As
part of the 2014 CA, the conservation
team developed a weed management
plan. To date, BLM and Uintah County
have surveyed for weeds along roads in
conservation areas, but no new
occurrences of noxious weed species
have been detected (Penstemon
Conservation Team 2017, p. 1;
Penstemon Conservation Team 2018a, p.
1; Sheppard and Wheeler 2020, p. 6).
The best available information does
not provide evidence of an altered
wildfire regime within the
beardtongues’ ranges, although decades
of fire suppression have increased the
risk of high severity, stand-replacing
wildfires (BLM 2008b, pp. 3–21). We
also considered the exposure and
impacts of wildfire to the beardtongues.
One recent wildfire (Wolf Den Fire)
occurred within the beardtongues’
ranges. Overall, the wildfire appeared to
have a low or minor negative impact to
Graham’s beardtongue, while White
River beardtongue plants and habitat
were not affected (Brunson 2012,
entire). To address wildfire, the 2014
CA provides that the Penstemon
Conservation Team will coordinate with
land managers regarding wildfire and
post-wildfire management activities and
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mitigation for impacts in conservation
areas. For our analysis, we assumed that
wildfire frequency and extent in
beardtongue populations would
generally not change from current levels
over the next 10 years.
Small Population Size
Based on results of a PVA, for
Graham’s and White River
beardtongues, we consider small
populations to be those that have greater
than 10 percent extinction risk (see
Service 2021a, pp. 59–62). This
threshold is equivalent to Graham’s
beardtongue populations with fewer
than 67 plants and White River
beardtongue populations with fewer
than 200 individuals. Graham’s
beardtongue has a lower threshold than
White River beardtongue because its
populations were more stable over the
monitoring period that informed the
PVA. Populations in this size category
are more prone to extinction from
stochastic events than larger
populations based on their life-history
characteristics and stable demographic
pattern (McCaffery 2013b, p. 1). We
considered large populations of
Graham’s and White River beardtongues
to be those with low (less than 5
percent) extinction risk, and medium
populations to be those with moderate
(6–10 percent) extinction risk. Large
populations of Graham’s beardtongue
have more than 130 plants, and large
White River beardtongue populations
have more than 370 plants (Service
2021a, pp. 59–62; Service 2021a, p. 7,
Appendix A). Graham’s beardtongue has
12 small populations and 15 large
populations distributed across its range,
and the small populations comprise less
than one percent of all known
individuals. White River beardtongue
has 6 small populations and 11 large
populations distributed across its range,
and the small populations comprise less
than one percent of all known
individuals. As part of the 2014 CA, the
Penstemon Conservation Team
developed designated conservation
areas to protect large populations of
Graham’s and White River beardtongues
as well as moderate and small
populations across both species’ ranges
to support population connectivity.
While not a primary driver of either
species’ current or future condition, we
considered the potential cumulative
impacts of small population size with
other stressors in our analysis.
Climate Change
Climate change has the potential to
impact Graham’s and White River
beardtongues (78 FR 47590, August 6,
2013; 79 FR 46042, August 6, 2014). We
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do not have a clear understanding of
how Graham’s and White River
beardtongues have responded to
precipitation changes, although plant
numbers have been documented as
remaining fairly stable during drought
years. There is also no association
between regional precipitation patterns
and population demographics for either
species (McCaffrey 2013a, p. 16). As
part of the 2014 CA, BLM recently
installed weather monitoring equipment
adjacent to eight monitoring sites to
collect local climate data in Range Units
1–5 (McCulley and Hornbeck 2017, p. 2;
Penstemon Conservation Team 2019a, p.
8; Sheppard and Wheeler 2020, pp. 17–
22). The data collected from weather
monitoring can be correlated with
demography data to determine basic
species responses to climate patterns.
Because we are not aware of a
downscaled climate model for the range
of Graham’s and White River
beardtongues, we used climate change
data from the Multivariate Adaptive
Constructed Analogs (MACA) website.
We used two different emission
scenarios, a stabilization emission
scenario using Representative
Concentration Pathway (RCP) 4.5 and a
rising greenhouse gas emissions
scenario using RPC 8.5 developed by the
Intergovernmental Panel on Climate
Change. The results of our
‘‘downscaled’’ climate evaluation
indicate future climate conditions will
be warmer in all seasons under both
emission scenarios (Lindstrom 2019,
entire). The difference in temperature
increase between the two scenarios is
within 3.2 °F through 2070.
Precipitation for all seasons is expected
to increase under both scenarios. In
order to evaluate a more integrated
measure of the combined effect of
increased temperature and precipitation
levels, we considered a measure of
evaporative deficit instead of
precipitation alone for our predictions
of drought conditions (Lindstrom 2019,
entire), using the U.S. Geological Survey
(USGS) National Climate Change
Viewer. Both scenarios indicate the
range of Graham’s and White River
beardtongues may be drier in the future
(through 2070) compared to historical
conditions (Service 2021b, pp. 40–41).
Overall, climate change presents
substantial uncertainty regarding the
future environmental conditions in the
range of Graham’s and White River
beardtongues, but it may place an added
stress on the species and its habitat,
particularly where other stressors are
present. When we considered
characteristics that contribute to
vulnerability to climate change such as
dispersal ability, highly specific habitat
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requirements, and ability to shift
distribution in response to
environmental conditions, Graham’s
and White River beardtongues would
likely rank moderate or high on the
vulnerability index at the species level
(Young et al. 2012, pp. 133–139).
Despite characteristics that make the
two species vulnerable to climate
change, our climate evaluation is too
speculative to determine the severity of
this stressor to Graham’s and White
River beardtongues at the population
level. Long-lived perennial plants
exhibit a range of drought and
temperature sensitivities based on
physiological, morphological, and
inherent genetic variability (Warwell
and Shaw 2017, p. 1205), which all
contribute to a species’ tolerance
(Hoover et al. 2015, pp. 7–11).
Additional information regarding each
species’ drought and temperature
tolerance is needed for us to be able to
assess the species’ responses to future
climate changes. For our analysis, we
assumed that climate conditions would
generally not change over the next 10
years from current levels in beardtongue
populations, but may contribute to
stronger effects of herbivory and
invasive weeds to all beardtongue
populations. Over a longer timeframe
(through 2070), we expect temperatures
and drought conditions to increase, but
there is substantial uncertainty
regarding their impact to the
beardtongues.
Stressors Considered but Not Carried
Forward
We considered the potential impacts
from off-highway vehicle use, disease,
and collection. The best available
information indicates that these are lowlevel stressors and do not impact the
beardtongues either by themselves, or
cumulatively with any other stressors
(Service 2021a, p. 63).
Summary of Factors Influencing
Viability
Overall, we consider the primary
drivers of the status of Graham’s
beardtongue and White River
beardtongue to be energy development
and the protections provided by the
2014 CA and other regulatory
mechanisms on Federal and State lands.
Energy development activities,
including oil shale, tar sands, and
traditional oil and gas, have collectively
had minimal impacts to both species to
date but have the greatest potential of
the stressors we evaluated for future
impacts. Other stressors are not
expected to have population- or specieslevel impacts by themselves but may
have the potential for cumulative
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impacts on the species when considered
together with energy development and
other stressors. The protections
provided by the 2014 CA and other
regulatory mechanisms are expected to
reduce the negative effect of energy
development on the beardtongues’
population resiliency.
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Summary of Current Condition
In our Biological Report of current
condition (Service 2021a, entire), we
describe Graham’s and White River
beardtongues’ viability by characterizing
their current condition in terms of the
3Rs. We evaluate resiliency at the
population level, and redundancy and
representation at the species level. This
analysis is described in detail in the
Biological Report (Service 2021a,
entire), and is briefly summarized here.
We evaluated the current resiliency of
each beardtongue population by scoring
relevant demographic (population size)
and habitat factors for the species for
which information is available (Service
2021a, pp. 66–70). For population size,
we incorporated two factors, population
extinction risk (based on a PVA) and the
presence of high-density clusters of
plants within populations, into our
calculation. For habitat, we
incorporated three factors, pollinator
habitat quality (measured as percent
nonnative plant cover), pollinator
habitat area, and pollinator habitat loss,
into our calculation. We included
pollinator habitat area because this
factor is associated with plant
abundance and biodiversity (Krauss et
al. 2004, entire) and may change in a
predictable way to estimate future
population size. Each population’s
overall resiliency score is the average of
all individual factor scores, which
translates to an overall current
condition category of low, moderate, or
good.
Graham’s Beardtongue
Fourteen Graham’s beardtongue
populations are in good current
condition (i.e., the most resilient) due to
their large population size and habitat
quality ranks (Service 2021a, pp. 68–
69). These factors likely provide
Graham’s beardtongue the ability to
withstand stochastic events such as
drought or wildfire. The remaining 13
populations are in moderate condition
based on the habitat and demographic
factors contributing to resiliency
(Service 2021a, pp. 68–69). The
moderate condition of these populations
may result in a lower ability to
withstand stochastic events than the
populations in good condition. The low
levels of habitat loss to date have not
changed the overall current condition of
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any population. Only one population
(population 11) had a reduction in the
overall condition because of higher
weed presence; the remaining
populations retain the same condition
as they did historically (Service 2021a,
pp. 68–69).
Unlike many other narrow endemic
species, the redundancy of Graham’s
beardtongue is quite high despite its
limited geographical range. The species’
27 populations are spread across the
Uinta Basin on different topographic
features, which likely provides the
ability to withstand more localized
catastrophic events (e.g., wildfire), and
may provide a limited ability to
withstand rangewide catastrophic
events (e.g., drought) (Service 2021a, pp.
70–72). Maintaining redundancy to
reduce the risk from catastrophic events
is dependent upon maintaining
sufficiently resilient populations of
Graham’s beardtongue in
topographically diverse habitat
conditions.
We do not have meaningful
information on the genetic diversity of
Graham’s beardtongue. Therefore, we
considered other types of representative
diversity, such as population size and
ecological settings, that could indicate
some ability to adapt to change within
the species’ range (Service 2021a, pp.
72–77). Graham’s beardtongue has 15
large populations distributed across its
range with at least 1 large population
within each of the five range units.
There are three medium populations
within the two western-most range
units; the remaining nine populations
are small. We assume the 15 large
populations contain the majority of
genetic variation within the total
population because they contain 99.5
percent of all individuals (Service
2021a, p. 73). Graham’s beardtongue
populations and metapopulations occur
in a high diversity of ecological settings,
suggesting a high level of genetic
variation within each range unit
(Service 2021a, p. 76). In addition, the
species exhibits a gradient of
morphological and phenological
differences across its range. Preserving
the species’ representation requires
maintaining medium and large
populations, connectivity between
populations, and a diversity of
ecological settings across its range. The
current distribution is the same as the
historical distribution, and the best
available information does not indicate
that a reduction in genetic diversity or
connectivity among populations has
occurred.
Overall, Graham’s beardtongue
exhibits high levels of resiliency,
redundancy, and representation that
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have allowed populations to persist
throughout the species’ range. The
species contains a high number of
populations in good or moderate
condition, and levels of redundancy and
representation are similar to its
historical condition. Graham’s
beardtongue is stable despite localized
weed encroachment and some loss of
occupied habitat and pollinator habitat.
The current condition of Graham’s
beardtongue populations is a direct
result of the low levels of habitat loss
and degradation to date and habitat
protections afforded to the species
under the 2014 CA. For further
explanation of our analysis of the
current condition of Graham’s
beardtongue, see our Biological Report
(Service 2021a, pp. 63–80).
White River Beardtongue
Seven White River beardtongue
populations are in good current
condition (i.e., the most resilient) due to
their large population size and habitat
factors (Service 2021a, pp. 68–70).
These factors likely provide White River
beardtongue the ability to withstand
stochastic events such as drought or
wildfire. There are nine populations in
moderate condition based on the habitat
factors (habitat area and quality)
contributing to resiliency (Service
2021a, pp. 68–70). The moderate
condition of these populations may
result in a lower ability to withstand
stochastic events compared to
populations in good condition. One
population (Population 8) is in low
condition and is the least likely to
withstand stochastic events (Service
2021a, pp. 68–70).
The low overall level of pollinator
habitat loss for all populations to date
does not change the overall current
condition of any population because
habitat loss does not exceed the low
habitat loss condition threshold of five
percent habitat loss, and effects to
populations remain small and localized.
Two populations (Populations 8 and 13)
had a reduction in their overall
condition because of higher weed
presence; the remaining 15 populations
retain the same condition as they did
historically (Service 2021a, pp. 68–70).
Unlike many other narrow endemic
species, the redundancy of White River
beardtongue is fairly high despite its
limited geographical range (Service
2021a, pp. 70–72). The species includes
17 populations spread across the Uinta
Basin on different topographic features,
which likely provides the ability to
withstand more localized catastrophic
events (e.g., wildfire) and may provide
a limited ability to withstand rangewide
catastrophic events (e.g., drought).
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Maintaining redundancy to reduce the
risk of catastrophic events is dependent
upon maintaining sufficiently resilient
populations of White River beardtongue
in topographically diverse habitat
conditions.
We considered population size and
ecological settings that could indicate
some ability to adapt to change within
the species’ range (Service 2021a, pp.
72–77). White River beardtongue has 11
large populations distributed across its
range with at least 1 large population
within each of the five range units. The
remaining six populations are small. We
assume these 11 large populations
contain the majority of genetic variation
within the total population, because
they contain 99.7 percent of all
individuals (Service 2021a, p. 76). There
is a high diversity of ecological settings
within White River beardtongue
metapopulations, suggesting a high level
of genetic variation within each range
unit. One White River beardtongue
range unit has a distinctly different
composition of vegetation types than the
other range units, which we consider a
different ecological setting for the
species (Service 2021a, p. 76). We
assume this is an indication that this
range unit has a slightly different
genetic composition than the other
range units. The preliminary genetic
information and opinions from our
expert panel support this assumption
(Stevens 2019, attachments a, b, c;
Service 2017a, p. 4). Preserving the
species’ representation requires
maintaining large populations,
connectivity between populations, and a
diversity of ecological settings across its
range. The current distribution is the
same as the historical distribution, and
the best available information does not
indicate that a reduction in genetic
diversity or connectivity among
populations has occurred.
Overall, White River beardtongue
exhibits high levels of resiliency,
redundancy, and representation, which
have allowed populations to persist
throughout the species’ range. The
species contains a high number of
populations in good or moderate
condition, and levels of redundancy and
representation are similar to its
historical condition. White River
beardtongue is stable despite localized
weed encroachment and some loss of
pollinator habitat. The current condition
of White River beardtongue populations
is a direct result of the low levels of
habitat loss and degradation to date and
habitat protections afforded to the
species under the 2014 CA. For further
explanation of our analysis of the
current condition of White River
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beardtongue, see our Biological Report
(Service 2021a, pp. 63–80).
Summary of Future Condition
Using the 3Rs, we evaluated the
future viability of the beardtongues
based on the presence of multiple
(redundancy), self-sustaining
(resiliency) populations distributed
across the range of the species, and their
contributions to adaptive capacity
(representation) in the face of changing
environmental conditions. We relied on
our characterization of each species’
current condition, stressors, and effects
of stressors as the baseline from which
to evaluate future changes to those
factors considered important to the
beardtongues (Service 2021a, entire).
Our analysis of the projected future
condition of Graham’s and White River
beardtongues is described in detail in
our Biological Report of future
condition (Service 2021b, entire), and is
briefly summarized here.
Based on input received from Federal
and State agencies, private industry, and
the best available information, we
developed two plausible future
scenarios—moderate and high energy
development (Service 2021b, pp. 48–
56). We used reliable projections of
future events and the future locations of
stressors based on the best available
information and expert opinion.
Published literature evaluates energy
development at a coarser scale (e.g., the
Uintah Basin, State of Utah, or countylevel) than what we needed for our
analysis within the beardtongues’
ranges. Therefore, we relied on expert
opinion to evaluate energy development
specifically within the ranges of the two
species and assign likelihoods to future
exploration and development activities
(Service 2021b, pp. 12, 13).
Based on this information, our two
scenarios considered impacts to the
beardtongues through 2030, because we
have sufficient information to project
out to 10 years for energy development
(oil shale, tar sands, and oil and gas
development), which is the primary
future stressor for the beardtongues
(Service 2021b, p. 49). Beyond 10 years,
there is too much uncertainty about the
fluctuating market price of oil and gas,
the possibility of future technological
advances that could lower extraction
costs and favor certain industries, and
the results of planned oil exploration to
project the level or distribution of
energy development within the
beardtongues’ populations and ranges,
such that projections would become
speculative (Service 2019, entire;
Service 2020, entire). Expert panel
likelihood estimates and the best
available information from published
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literature and technical reports
informed our 10-year energy
development (oil shale, tar sands, and
oil and gas development) projection
timeframe. Our 10-year energy
development timeframe is generally
consistent with long-term economic
forecasts for oil shale, tar sands, and
traditional oil and gas that are based on
the market price of oil and natural gas
(Service 2021b, pp. 17, 25, 33, 34). In
addition, future oil exploration and
development within the beardtongues’
ranges will depend of the results of
planned exploration within Uintah
County (Service 2021b, pp. 32—35). We
note that we do have certainty through
2034 that the protections of the 2014 CA
will remain in place, which will limit
where energy development could occur.
For more information on how these
projection timeframes relate to our
evaluation of the ‘‘foreseeable future’’,
see Consideration of Foreseeable Future
below.
In the locations where energy
stressors occurred for the two scenarios,
our analysis included the following
assumptions: Commercial development
activities for oil shale and tar sands will
occur in the next 10 years on nonFederal (private and state) lands within
each forecast; and a total loss of plants
and habitat will occur where oil shale
and tar sands development are projected
(Service 2021b, pp. 15–31; 49–56).
These assumptions allowed us to
evaluate potential worst-case impacts
from energy development in
combination with other stressors, to
bracket the full range of impacts to the
beardtongues that may occur, because
actual future impacts may range
anywhere from their current condition
to the future scenarios evaluated here,
or may fall in between. We did not
develop a scenario that considered
‘‘exploration-only’’ activities for oil
shale and tar sands, with a smaller
surface disturbance extent, even though
this would also be a plausible future
forecast for oil shale and tar sands,
because the impacts under an
exploration-only scenario would fall in
between the current condition and the
energy development scenarios we
developed. Our evaluation of effects
from energy development accounted for
the protections afforded to the
beardtongues from the 2014 CA that are
in place through 2034.
For the two future scenarios, we
forecasted the species’ biological
condition based on conservation efforts
and the following stressors: Oil shale,
tar sands, and traditional oil and gas
exploration and development activities;
road construction and maintenance;
herbivory; invasive weeds; small
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population size; and climate change.
Our future scenarios varied based on
two forecasts for oil shale (moderate,
high). For each of the other stressors (tar
sands, traditional oil and gas, road
construction and maintenance,
herbivory, invasive weeds, small
population size, and climate change) we
developed only one future forecast
(these forecasts were used in both future
scenarios) because their future,
plausible extents are not expected to
vary much within the beardtongues’
ranges independent of the oil shale
stressor (Service 2021b, pp. 49–56).
In the moderate energy development
scenario (Scenario 1), we projected that
oil shale exploration and commercial
development would occur on lands
identified as having a high potential for
both activities (Service 2021b, pp. 49–
52). The effects of herbivory and
invasive weeds may increase in
populations that overlap with energy
development. Climate change may
increase the effects from herbivory and
invasive weeds to all beardtongue
populations. In the high energy
development scenario (Scenario 2), we
projected that oil shale exploration and
commercial development would occur
over a larger area that included the same
lands as the moderate scenario, plus
other lands identified as likely or about
as likely as not to support these
activities (Service 2021b, pp. 52–55).
The potential effects of the other
stressors to all beardtongue populations
remained the same as evaluated for the
moderate energy development scenario.
Under each of these future scenarios,
we assessed future resiliency by
evaluating relevant habitat and
demographic factors to calculate an
overall condition score for each plant
population. We evaluated population
size, habitat area, habitat quality, and
habitat loss to project the future
resiliency of each population. Based on
the results of these evaluations, we rated
population condition as good, moderate,
low, or extirpated. To assess future
redundancy, we evaluated the projected
number and distribution of populations
within the species’ range relative to the
current condition. To assess future
representation, we evaluated the
projected demographic (population size)
and ecological (ecological settings)
surrogates of genetic diversity relative to
the current condition. For more detailed
information on our methodology for
evaluating future conditions, see the
Biological Report (Service 2021b, pp.
49–56).
Graham’s Beardtongue
Under the moderate energy
development scenario, oil shale and
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traditional oil and gas are the main
stressors for Graham’s beardtongue, and
these stressors are projected to result in
loss of individual plants and habitat in
the center of the species’ range (Service
2021b, Figure 11, pp. 50, 56). In this
scenario, there is a projected loss of 34
percent of the total number of plants
from energy development, with a
remaining total population size of
37,350 individuals in 24 populations
(Service 2021b, p. 57). Remaining
occupied habitat and pollinator habitat
are projected to be 7,642 ac (3,093 ha)
and 72,455 ac (29,321 ha), respectively.
The main stressors result in the
extirpation of three populations and a
decline in the condition of four
populations compared to their current
condition. The current population
condition is maintained in the other 20
populations. The species continues to
occupy the extent of its current range,
and all five range units continue to
support populations in good or
moderate condition. Fourteen
populations in good and moderate
condition are large in size and have a
low extinction risk (Service 2021b, pp.
57–58).
Despite the extirpation of some
populations under the moderate energy
development scenario, levels of
redundancy remain high, with Graham’s
beardtongue maintaining 24 populations
(Service 2021b, p. 60). Our evaluation of
representation under this scenario
indicates that Graham’s beardtongue
maintains a level of ecological diversity
within the 24 remaining populations
that is similar to its current condition
and should have the adaptive capacity
to tolerate projected, future climate and
habitat conditions (Service 2021b, p.
60). The best available information does
not indicate that the projected loss of
the three Graham’s beardtongue
populations and projected plant loss in
other populations would result in
significant impacts to Graham’s
beardtongue’s representation.
Under the high energy development
scenario, the main stressors remain the
same for Graham’s beardtongue, but oil
shale impacts result in more extensive
plant and habitat loss in the center of
the species’ range than in the moderate
energy development scenario (Service
2021b, Figure 13, pp. 53, 60–62). In this
scenario, there is a projected loss of 45
percent of the total number of plants
from energy development, with a
remaining total population size of
30,794 individuals in 24 populations.
Remaining occupied habitat and
pollinator habitat are projected to be
6,037 ac (2,443 ha) and 63,580 ac
(25,730 ha), respectively. The main
stressors result in the extirpation of
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three populations and a decline in the
condition of six populations compared
to their current condition. The current
population condition is maintained in
the other 18 populations. Fourteen
populations in good and moderate
condition are large in size and have a
low extinction risk. The species
continues to occupy the extent of its
current range, and all five range units
continue to support populations in good
or moderate condition (Service 2021b,
pp. 60–62).
Despite the extirpation of
populations, levels of redundancy
remain high with Graham’s beardtongue
maintaining 24 populations (Service
2021b, p. 64). Our evaluation of
representation indicates that Graham’s
beardtongue maintains a level of
ecological diversity within the 24
remaining populations that is similar to
its current condition and should have
the adaptive capacity to tolerate future
climate and habitat conditions (Service
2021b, p. 64). The best available
information does not indicate that the
projected loss of the three Graham’s
beardtongue populations and projected
plant loss in other populations would
result in significant impacts to Graham’s
beardtongues’ representation.
White River Beardtongue
Under the moderate energy
development scenario, oil shale is the
main stressor for White River
beardtongue, and this stressor is
projected to result in loss of individual
plants and habitat in the center of the
species’ range (Service 2021b, Figure 12,
pp. 51, 57–59). In this scenario, there is
a projected loss of 1 percent of the total
number of plants from energy
development, with a remaining total
population size of 29,686 individuals in
16 remaining populations. Remaining
occupied habitat and pollinator habitat
are projected to be 3,218 ac (1,302 ha)
and 26,959 ac (10,910 ha), respectively
(Service 2021b, pp. 57–59). The main
stressor results in the extirpation of one
population and a decline in the
condition of one population compared
to their current condition. The current
population condition is maintained in
the other 15 populations. The species
continues to occupy the extent of its
current range, and all five range units
continue to support populations in good
or moderate condition. Eleven
populations in good and moderate
condition are large in size and have a
low extinction risk (Service 2021b, pp.
57–59).
Despite the extirpation of one
population under the moderate energy
development scenario, levels of
redundancy remain high with White
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River beardtongue maintaining 16
populations (Service 2021b, p. 60). Our
evaluation of representation indicates
that White River beardtongue maintains
a level of ecological diversity within the
16 remaining populations that is similar
to its current condition and should have
the adaptive capacity to tolerate future
climate and habitat conditions (Service
2021b, p. 60). The best available
information does not indicate that the
projected loss of the one White River
beardtongue population and projected
plant loss in other populations would
result in significant impacts to White
River beardtongue’s representation.
Under the high energy development
scenario, the main stressor remains the
same for White River beardtongue, but
oil shale impacts result in more
extensive plant and habitat loss in the
center of the species’ range than in the
moderate energy development scenario
(Service 2021b, Figure 14, pp. 54, 61–
63). In this scenario, there is a projected
loss of 24 percent of the total population
from energy development, with a
remaining total population size of
22,695 individuals in 15 populations.
Remaining occupied habitat and
pollinator habitat are projected to be
2,317 ac (938 ha) and 20,099 ac (8,134
ha), respectively (Service 2021b, pp. 61–
63). The main stressor results in the
extirpation of two populations and a
decline in the condition of two
populations compared to their current
condition. The current population
condition is maintained in the other 13
populations. Nine populations in good
and moderate condition are large in size
and have a low extinction risk. The
species continues to occupy the extent
of its current range, and all five range
units continue to support populations in
good or moderate condition (Service
2021b, pp. 61–63).
Despite the extirpation of
populations, levels of redundancy
remain high with White River
beardtongue maintaining 15 populations
(Service 2021b, p. 64). Our evaluation of
representation indicates that White
River beardtongue maintains a level of
ecological diversity within the 15
remaining populations that is similar to
its current condition and should have
the adaptive capacity to tolerate future
climate and habitat conditions (Service
2021b, p. 64). The best available
information does not indicate that the
projected loss of the two White River
beardtongue populations and projected
plant loss in other populations would
result in significant impacts to White
River beardtongue’s representation.
The 2014 CA provides protections for
the beardtongues on Federal and State
lands until 2034. During this time, the
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beardtongues are afforded the same
level of protections on Federal and State
lands within designated conservation
areas. The 2014 CA identifies 42,993 ac
(17,399 ha) of designated conservation
areas that protect 41 percent of the
Graham’s beardtongue population in 13
populations, and 66 percent of the
White River beardtongue population in
11 populations (Service 2021b, pp. 43–
46). Within designated conservation
areas, protections include an avoidance
buffer of 300 ft (91.4 m) between
disturbance and beardtongue plants, as
well as surface disturbance caps to
restrict development. Surface
disturbance caps would allow a limited
amount of new construction for roads
and traditional oil and gas development
but would prohibit future oil shale and
tar sand exploration and development
(Service 2021b, pp. 43–46).
The beardtongues are also afforded
protections on Federal lands outside of
designated conservation areas,
including a 300-ft (91.4-m) avoidance
buffer, surface disturbance restrictions
on steep slopes, areas that are
unavailable for leasing or have NSO
stipulations, and designated ACECs
(Service 2021b, pp. 47–48). In total, the
2014 CA designated conservation areas
and other conservation measures on
Federal lands provide protections to 51
percent and 76 percent of the Graham’s
beardtongue and White River
beardtongue total population,
respectively (Service 2021b, p. 48).
Determination of Species Status
Section 4 of the Act (16 U.S.C. 1533)
and its implementing regulations (50
CFR part 424) set forth the procedures
for determining whether a species meets
the definition of an endangered species
or a threatened species. The Act defines
an endangered species as a species that
is ‘‘in danger of extinction throughout
all or a significant portion of its range,’’
and a threatened species as a species
that is ‘‘likely to become an endangered
species within the foreseeable future
throughout all or a significant portion of
its range.’’ The Act requires that we
determine whether a species meets the
definition of endangered species or
threatened species because of any of the
following five factors:
(A) The present or threatened
destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial,
recreational, scientific, or educational
purposes;
(C) Disease or predation;
(D) The inadequacy of existing
regulatory mechanisms; or
(E) Other natural or manmade factors
affecting its continued existence.
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Since the publication of the August 6,
2013, proposed listing rule (78 FR
47590), and the subsequent
reinstatement of that proposed rule
following litigation, we prepared a
comprehensive assessment of the
current and future status of Graham’s
beardtongue and White River
beardtongue as presented in the
Biological Reports (Service 2021a,
entire; 2021b, entire). The Biological
Reports reexamined the threats
identified in the 2013 proposed listing
rule (energy exploration and
development, as well as the cumulative
impacts of livestock grazing, invasive
weeds, small populations sizes, and
climate change) using concepts from the
Service’s SSA framework (Service 2016,
entire; Smith et al. 2018, entire). The
Biological Reports also incorporate new
information into our analysis that has
become available since 2013, including
updated monitoring information and the
final 2014 CA and its 2018 addendum.
We have carefully assessed the best
scientific and commercial information
available regarding the past, present,
and future threats to Graham’s and
White River beardtongues, including:
Energy exploration and development:
Oil shale, tar sands, and traditional oil
and gas drilling (Factor A); road
construction (Factor A); herbivory
(Factor C); invasive weeds (Factor A);
small population size (Factor E); and
climate change (Factors A and E). We
also evaluated how existing regulatory
mechanisms (Factor D) and other
conservation measures (primarily the
2014 CA and 2018 addendum) may
lessen the impacts of these stressors.
The best available information does not
indicate that overutilization (Factor B) is
a threat to either beardtongue species.
Consideration of Cumulative Effects
Threats can work in concert with one
another to cumulatively create
conditions that may impact the
Graham’s and White River beardtongues
or their habitat beyond the scope of each
individual threat. We note that by using
concepts from the SSA framework to
guide our analysis of the scientific
information documented in the
Biological Reports, we have not only
analyzed individual effects on the
species, but we have also analyzed their
potential cumulative effects. We
incorporate the cumulative effects into
our analysis when we characterize the
current and future condition of the
species. To assess the current and future
condition of the species, we undertake
an iterative analysis that encompasses
and incorporates the threats
individually and then accumulates and
evaluates the effects of all the factors
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that may be influencing the species,
including threats and conservation
efforts. Because our analysis considers
not just the presence of the factors, but
to what degree they collectively
influence risk to the entire species, our
assessment integrates the cumulative
effects of the factors and replaces a
standalone cumulative effects analysis.
Consideration of Foreseeable Future
In considering the foreseeable future
for Graham’s beardtongue and White
River beardtongue, we considered the
available data regarding the factors that
may influence both species into the
future, including stressors, and
conservation efforts or regulatory
mechanisms that may provide
protections. The primary driver of both
species’ condition into the future is
energy development. We are able to
make reliable predictions about the
range of plausible future impacts of oil
shale, tar sands, and traditional oil and
gas through approximately 2030.
Beyond 2030, based on input from
experts, the impacts of energy
development become too speculative to
predict. Other stressors, including
roads, livestock grazing, invasive weeds,
and small population size, exert a
cumulative effect on the beardtongues
where they occur with energy
development, and, therefore, we are
similarly able to reliably predict their
impacts on the species through
approximately 2030. Climate change has
the potential to exacerbate the effect of
other stressors, including livestock
grazing and invasive weeds, where they
are present on the landscape. We have
information on climate change,
including projected changes in
temperature, precipitation, and
evaporative deficit out to 2070.
However, we are not able to make
reliable predictions about the species’
responses to these changes out to 2070,
since the species’ expected responses to
these variables are uncertain, and will
depend on the presence and impacts of
other stressors.
We also have information on various
timescales to make reliable predictions
about future protections that may be in
place for both Graham’s and White
River beardtongues. The 2014 CA
provides protections through designated
conservation areas on Federal and State
lands through 2034. Regulatory
mechanisms are in place to provide for
the State conservation areas (Utah Code
53C–2–202 and Utah Administrative
Code R850–150) through 2034. Federal
regulatory mechanisms, including a
BLM sensitive species designation, and
BLM RMP designations and
stipulations, provide protections for the
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species through at least 2038. The 2014
CA conservation areas on private lands
are expected to expire sooner, in 2029.
A Uintah County Ordinance that
provides for those areas also expires in
2029. Therefore, we did not include
these private land conservation areas in
our analysis of future conditions.
Overall, the primary drivers of the
future status of Graham’s beardtongue
and White River beardtongue are energy
development and the protections
provided by the 2014 CA and other
regulatory mechanisms on Federal and
State lands. We have information to
make reliable predictions about these
factors, and the species’ responses to
them, through: 2030 for the threat of
energy development, 2034 for the
protections of the 2014 CA on Federal
and State conservation areas, and 2038
for regulatory mechanisms on BLM
lands. Therefore, the foreseeable future
for this determination ranges from
approximately 2030 to 2034, for the
stressors and 2014 CA protections
included in our future scenarios, to
approximately 2038 for BLM regulatory
mechanisms.
Graham’s Beardtongue: Determination
of Status Throughout All of Its Range
Our evaluation of the current
condition of Graham’s beardtongue
found that there are currently tens of
thousands of individual plants
distributed across many populations
that have good or moderate resilience to
stochastic events. The species currently
has a sufficient level of redundancy and
representation to withstand catastrophic
events and adapt to changes, with
populations distributed across five
range units. While some stressors have
impacted individuals in localized areas,
none are currently having populationlevel impacts individually or
cumulatively. Therefore, we find that
the species is not in danger of extinction
throughout all of its range.
Our evaluation of the projected future
condition of Graham’s beardtongue
found that there is very high uncertainty
about the future likelihood of oil shale
development. The future condition of
Graham’s beardtongue in 2030 may
range anywhere from its current
condition to the impacts projected in
the high energy development scenario.
However, the impacts projected under
the high energy development scenario
represent a worst-case scenario, which
we expect is less likely to occur than the
impacts projected under the moderate
energy development scenario, or a
continuation of current conditions.
Although unlikely, even if we assume
the high energy development scenario
were to occur, the impacts of the
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2123
stressors on Graham’s beardtongue
would be limited to three range units.
Those three impacted range units would
still have several populations in good or
moderate condition, and over 30,000
individual plants would remain. In this
scenario, Graham’s beardtongue would
also retain over 6,000 ac (2,428 ha) of
occupied habitat and 63,000 ac (25,495
ha) of pollinator habitat. The 2014 CA
would cap the total level of habitat that
could be impacted within the
foreseeable future. Therefore, even in
this worst-case scenario, we anticipate
that Graham’s beardtongue would retain
sufficient levels of resiliency,
redundancy, and representation in the
foreseeable future. Thus, after assessing
the best available information, we
conclude that the Graham’s beardtongue
is not in danger of extinction throughout
all of its range nor is it likely to become
so in the foreseeable future.
Graham’s Beardtongue: Determination
of Status Throughout a Significant
Portion of Its Range
Under the Act and our implementing
regulations, a species may warrant
listing if it is in danger of extinction or
likely to become so in the foreseeable
future throughout all or a significant
portion of its range. Having determined
that the Graham’s beardtongue is not in
danger of extinction or likely to become
so in the foreseeable future throughout
all of its range, we now consider
whether it may be in danger of
extinction or likely to become so in the
foreseeable future in a significant
portion of its range—that is, whether
there is any portion of the species’ range
for which it is true that both (1) the
portion is significant; and (2) the species
is in danger of extinction now or likely
to become so in the foreseeable future in
that portion. Depending on the case, it
might be more efficient for us to address
the ‘‘significance’’ question or the
‘‘status’’ question first. We can choose to
address either question first. Regardless
of which question we address first, if we
reach a negative answer with respect to
the first question that we address, we do
not need to evaluate the other question
for that portion of the species’ range.
In undertaking this analysis for the
Graham’s beardtongue, we choose to
address the status question first—we
consider information pertaining to the
geographic distribution of both the
species and the threats that the species
faces to identify any portions of the
range where the species is endangered
or threatened. For the Graham’s
beardtongue, we considered whether the
threats are geographically concentrated
in any portion of the species’ range at
a biologically meaningful scale. We
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examined the following threats: Energy
development (oil shale, tar sands, and
traditional oil and gas drilling) and the
additional cumulative impacts of road
construction, herbivory, invasive weeds,
small population size, and climate
change with energy development
(Service 2021a, entire; 2021b, entire).
We acknowledge that there are three
range units (Units 2, 3, and 4) with
potentially greater levels of impacts
projected from oil shale in the
foreseeable future, although the worstcase impacts of the high energy
development scenario are less likely to
occur than the impacts under the
moderate energy development scenario
or a continuation of current conditions.
However, even if these worst-case
projected impacts were to occur in
Range Units 2, 3, and 4, several
populations would remain in good or
moderate condition in Range Units 2
and 3, and the one population in Range
Unit 4 would remain in good condition.
Based on the resiliency of these
remaining populations, and their spread
across these range units, we expect that
adequate levels of resiliency,
redundancy, and representation would
remain in these units to protect again
stochastic and catastrophic events and
to adapt to future changes, and so, this
portion of the range would not meet the
definition of endangered or threatened.
Therefore, no portion of the species’
range can provide a basis for
determining that the species is in danger
of extinction now or likely to become so
in the foreseeable future in a significant
portion of its range, and we find the
species is not in danger of extinction
now or likely to become so in the
foreseeable future in any significant
portion of its range. This is consistent
with the courts’ holdings in Desert
Survivors v. Department of the Interior,
No. 16–cv–01165–JCS, 2018 WL
4053447 (N.D. Cal. Aug. 24, 2018) and
Center for Biological Diversity v. Jewell,
248 F. Supp. 3d, 946, 959 (D. Ariz.
2017).
White River Beardtongue: Determination
of Status Throughout All of Its Range
Our evaluation of the current
condition of White River beardtongue
found that there are currently nearly
30,000 individual plants distributed
across many populations that have good
or moderate resilience to stochastic
events. The species currently has a
sufficient level of redundancy and
representation to withstand catastrophic
events and adapt to changes, with
populations distributed across five
range units. In addition, the recent
discovery of a new population in the
Book Cliffs has expanded the species’
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known range. While some stressors have
impacted individuals and habitat in
localized areas, none are currently
having population-level impacts.
Therefore, we find that the species is
not in danger of extinction throughout
all of its range.
Our evaluation of the projected future
condition of White River beardtongue
found that there is very high uncertainty
around the future of oil shale
development. The future condition of
White River beardtongue in 2030 may
range anywhere from its current
condition, to the impacts projected in
the high energy development scenario.
However, the impacts projected under
the high energy development scenario
represent a worst-case scenario, which
we expect is less likely to occur than the
impacts projected under the moderate
energy development scenario, or a
continuation of current conditions.
Although unlikely, even if we assume
the high energy development scenario
were to occur, the impacts of the
stressors on White River beardtongue
are projected to be limited. Under this
worst-case scenario, we expect that
White River beardtongue would retain
over 75 percent of individual plants and
maintain the resiliency of the large
populations. The 2014 CA is expected to
protect the majority (66 percent) of
plants across 11 populations into the
foreseeable future. We also expect
sufficient levels of redundancy and
representation to remain across the
range units, even though 2 out of 17
populations could be lost. Therefore,
even in this worst-case scenario, we
anticipate that White River beardtongue
would retain sufficient levels of
resiliency, redundancy, and
representation in the foreseeable future.
Thus, after assessing the best available
information, we conclude that White
River beardtongue is not in danger of
extinction throughout all of its range nor
is it likely to become so in the
foreseeable future.
White River Beardtongue: Determination
of Status Throughout a Significant
Portion of Its Range
Under the Act and our implementing
regulations, a species may warrant
listing if it is in danger of extinction or
likely to become so in the foreseeable
future throughout all or a significant
portion of its range. Having determined
that the White River beardtongue is not
in danger of extinction or likely to
become so in the foreseeable future
throughout all of its range, we now
consider whether it may be in danger of
extinction or likely to become so in the
foreseeable future in a significant
portion of its range—that is, whether
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there is any portion of the species’ range
for which it is true that both (1) the
portion is significant; and (2) the species
is in danger of extinction now or likely
to become so in the foreseeable future in
that portion. Depending on the case, it
might be more efficient for us to address
the ‘‘significance’’ question or the
‘‘status’’ question first. We can choose to
address either question first. Regardless
of which question we address first, if we
reach a negative answer with respect to
the first question that we address, we do
not need to evaluate the other question
for that portion of the species’ range.
In undertaking this analysis for the
White River beardtongue, we choose to
address the status question first—we
consider information pertaining to the
geographic distribution of both the
species and the threats that the species
faces to identify any portions of the
range where the species is endangered
or threatened. For the White River
beardtongue, we considered whether the
stressors are geographically
concentrated in any portion of the
species’ range at a biologically
meaningful scale. We examined the
following stressors: Energy development
(oil shale, tar sands, and traditional oil
and gas drilling) and the additional
cumulative impacts of road
construction, herbivory, invasive weeds,
small population size, and climate
change with energy development
(Service 2021a, entire; 2021b, entire).
All of these potential stressors are
relatively evenly distributed
geographically throughout the range of
the White River beardtongue. Our
analysis projected that small areas of
disturbance will occur within most
range units but are expected to be
spread throughout the range. We found
no concentration of stressors in any
portion of the White River
beardtongue’s range at a biologically
meaningful scale. Therefore, no portion
of the species’ range can provide a basis
for determining that the species is in
danger of extinction now or likely to
become so in the foreseeable future in
a significant portion of its range, and we
find the species is not in danger of
extinction now or likely to become so in
the foreseeable future in any significant
portion of its range. This is consistent
with the courts’ holdings in Desert
Survivors v. Department of the Interior,
No. 16–cv–01165–JCS, 2018 WL
4053447 (N.D. Cal. Aug. 24, 2018), and
Center for Biological Diversity v. Jewell,
248 F. Supp. 3d 946, 959 (D. Ariz.
2017).
Determination of Status
We have reviewed the best available
scientific and commercial information
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regarding the past, present, and future
threats to the Graham’s beardtongue and
White River beardtongue, and we have
determined that these species do not
meet the definition of an ‘‘endangered
species’’ or a ‘‘threatened species’’ in
accordance with sections 3(6) and 3(20)
of the Act. Because of this
determination, we are withdrawing our
August 6, 2013, proposed rule to list the
Graham’s beardtongue and White River
beardtongue as threatened species (78
FR 47590). Accordingly, we are also
withdrawing our August 6, 2013,
proposed rule to designate critical
habitat for the species (78 FR 47832).
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References Cited
A complete list of references cited in
this document and the Graham’s and
White River beardtongues Biological
Reports are available on the internet at
https://www.regulations.gov at Docket
No. FWS–R6–ES–2019–0029 and upon
request from the Utah Ecological
Services Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
Frm 00047
Ecological Services Office and the
Mountain-Prairie Regional Office.
Authority
The authority for this action is the
Endangered Species Act of 1973, as
amended (16 U.S.C. 1531 et seq.).
Martha Williams,
Principal Deputy Director, Exercising the
Delegated Authority of the Director, U.S. Fish
and Wildlife Service.
[FR Doc. 2022–00485 Filed 1–12–22; 8:45 am]
The primary authors of this document
are the staff members of the Utah
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BILLING CODE 4333–15–P
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Agencies
[Federal Register Volume 87, Number 9 (Thursday, January 13, 2022)]
[Proposed Rules]
[Pages 2107-2125]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-00485]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R6-ES-2019-0029; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BD71
Endangered and Threatened Wildlife and Plants; Withdrawal of the
Proposed Rules To List Graham's Beardtongue (Penstemon grahamii) and
White River Beardtongue (Penstemon scariosus var. albifluvis) as
Threatened Species and To Designate Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; withdrawal.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are
withdrawing our August 6, 2013, proposed rules to list Graham's
beardtongue (Penstemon grahamii) and White River beardtongue (Penstemon
scariosus var. albifluvis) as threatened species throughout their
ranges and to designate critical habitat for these two plant species
under the Endangered Species Act of 1973, as amended (Act). These
withdrawals are based on our conclusion that the stressors affecting
the species as identified in the proposed listing rule are not as
significant as previously understood at the time of publication of that
proposed rule, such that the species do not meet the Act's definition
of an ``endangered species'' or of a ``threatened species.'' Our
conclusion is informed by an updated analysis of new and previous
information concerning current and future stressors to the species and
conservation efforts for them.
DATES: The U.S. Fish and Wildlife Service is withdrawing proposed rules
published on August 6, 2013 (78 FR 47590 and 47832), as of January 13,
2022.
ADDRESSES: Relevant documents used in the preparation of this
withdrawal are available on the internet at https://www.regulations.gov
at Docket No. FWS-R6-ES-2019-0029.
FOR FURTHER INFORMATION CONTACT: Yvette Converse, Field Supervisor,
U.S. Fish and Wildlife Service, Utah Ecological Services Office, 2369 W
Orton Circle, Suite 50, West Valley City, UT 84119; telephone 801-975-
3330. Persons who use a telecommunications device for the deaf may call
the Federal Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
[[Page 2108]]
Executive Summary
Why we need to publish this document. Under the Act, a species may
warrant protection through listing if it is endangered or threatened
throughout all or a significant portion of its range. In 2013, we
issued proposed rules to list the Graham's beardtongue and White River
beardtongue (beardtongues) and to designate critical habitat for the
beardtongues. This document withdraws the proposed listing rule because
we have now determined that the factors affecting the beardtongues as
identified in that proposed rule are not as significant as previously
understood in 2013, such that listing is not warranted for these
species. Because we are withdrawing the proposed listing rule for the
beardtongues, we also withdraw the proposed critical habitat
designation for these species.
The basis for our action. The Act defines an ``endangered species''
as a species that is in danger of extinction throughout all or a
significant portion of its range and a ``threatened species'' as a
species that is likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its
range. Under the Act, we may determine that a species is an endangered
or threatened species because of any of five factors: (A) The present
or threatened destruction, modification, or curtailment of its habitat
or range; (B) overutilization for commercial, recreational, scientific,
or educational purposes; (C) disease or predation; (D) the inadequacy
of existing regulatory mechanisms; or (E) other natural or manmade
factors affecting its continued existence (16 U.S.C. 1533(a)(1)). We
have determined that the stressors affecting the beardtongues as
identified in the proposed listing rule (energy development, cumulative
impacts from livestock grazing, invasive weeds, small population size,
and climate change) are not as significant as previously understood at
the time of publication of the proposed rule (i.e., in 2013).
Previous Federal Actions
On August 6, 2013, we published a proposed rule to list Graham's
beardtongue and White River beardtongue as threatened species (78 FR
47590) under the Act (16 U.S.C. 1531 et seq.). Please refer to that
proposed rule for a detailed description of previous Federal actions
concerning Graham's beardtongue and White River beardtongue prior to
2013. On August 6, 2013, we also published a proposed rule to designate
critical habitat for both species (78 FR 47832). Following publication
of our August 6, 2013, proposed rules, the same parties (Bureau of Land
Management (BLM); U.S. Fish and Wildlife Service (Service); Utah
Department of Natural Resources (DNR); State of Utah School and
Institutional Trust Lands Administration (SITLA); Uintah County, Utah)
that had drafted a 2007 conservation agreement (CA) for Graham's
beardtongue and White River beardtongue reconvened to evaluate species'
surveys and distribution information and to reassess the conservation
needs of both Graham's and White River beardtongues. Based on this
evaluation, the parties completed a new conservation agreement (2014
CA, entire) that specifically addressed the threats identified in our
August 6, 2013, proposed listing rule (78 FR 47590). Additional
signatories to the 2014 CA included the Utah Public Lands Policy
Coordination Office (PLPCO) and Rio Blanco County, Colorado. While
private landowners were not signatories to the 2014 CA, some private
lands are designated as conservation areas under the 2014 CA, and
Uintah County coordinates with and represents the interests of affected
landowners.
In the 2014 CA, the parties committed to conservation actions
including establishing 44,373 acres (ac) (17,957 hectares (ha)) of
occupied and unoccupied suitable habitat as protected conservation
areas with limited surface disturbance and avoidance of Graham's and
White River beardtongue plants by 300 feet (ft) (91.4 meters (m)).
Additionally, BLM agreed to avoid surface disturbances within 300 ft
(91.4 m) of Graham's and White River beardtongue plants within and
outside of conservation areas on BLM land. The parties also developed
conservation measures to address the cumulative impacts from livestock
grazing, invasive weeds, small population size, and climate change by
continuing species monitoring, monitoring climate, reducing impacts
from grazing when and where detected, and controlling invasive weeds.
On May 6, 2014, we announced the reopening of the public comment
period on our August 6, 2013, proposed listing and proposed designation
of critical habitat rules until July 7, 2014 (79 FR 25806). In that
document, we also announced the availability of a draft economic
analysis (DEA), draft environmental assessment (EA), draft 2014 CA, and
amended required determinations section of the critical habitat
proposal. We also announced the availability of 2013 survey results for
Graham's and White River beardtongue plants and our intent to hold a
public information meeting and public hearing.
On August 6, 2014, we withdrew the proposed rule to list Graham's
beardtongue and White River beardtongue as threatened species (79 FR
46042). That withdrawal was based on our conclusion that the threats to
the species as identified in the August 6, 2013, proposed listing rule
were no longer as significant as we previously determined, such that
the species did not meet the Act's definitions of an ``endangered
species'' or of a ``threatened species.'' We based this conclusion on
our analysis of new information concerning current and future threats
to the species and conservation efforts. As a result, we also withdrew
our associated August 6, 2013, proposed rule to designate critical
habitat for these species.
On March 26, 2015, a complaint was filed in the District Court for
the District of Colorado by Rocky Mountain Wild, Center for Biological
Diversity, Utah Native Plant Society, Southern Utah Wilderness
Alliance, Grand Canyon Trust, Western Resource Advocates, and Western
Watersheds Project challenging the withdrawal of the proposal to list
Graham's beardtongue and White River beardtongue (Rocky Mountain Wild
v. Walsh, No. 15-615 (D. Colo. filed Mar. 26, 2015)). The State of
Utah, SITLA and PLPCO, and Uintah County, Utah, intervened in the
litigation (Mot. to Intervene, ECF No. 10). On October 25, 2016, the
court found that the withdrawal was contrary to the Act because (1) we
concluded that yet-to-be-enacted regulatory and non-regulatory measures
mandated by the 2014 CA were ``existing regulatory mechanisms''; (2) we
failed to account for the 2014 CA's expiration when determining whether
the beardtongues face material threats in the ``foreseeable future'';
and (3) we took into account economic considerations when imposing a
300-ft (91.4-m) buffer zone around each beardtongue (Order Vacating
Admin. Action and Req. Meet-and-Confer Between the Parties, ECF No.
59).
However, before entering final judgment, the court ordered that the
parties meet to discuss whether the 2014 CA could be modified in a
manner satisfactory to plaintiffs. Those meetings occurred, but in a
December 15, 2017, Joint Status Report to the court, the parties
reported that they were unsuccessful at reaching agreement. Therefore,
on December 18, 2017, the court entered final judgment, vacating our
August 6, 2014, withdrawal, and reinstating the proposed listing and
critical habitat rules. As a result, the August 6, 2013, proposed
listing and
[[Page 2109]]
critical habitat rules (collectively referred to as the 2013 proposed
rules) for Graham's beardtongue and White River beardtongue were
reinstated, and both species once again became proposed for listing
under the Act. The court did not establish a firm deadline for us to
reach a new final listing determination but provided that plaintiffs
could return to the court to seek such a deadline if the Service did
not publish a new final determination by September 30, 2019. The
plaintiffs have not yet done so.
On September 12, 2019, we reopened the comment periods on the 2013
proposed rules for 30 days, ending October 15, 2019 (84 FR 48090). We
also announced that we would reevaluate the status of both species to
determine whether they meet the Act's definition of an ``endangered
species'' or of a ``threatened species,'' or whether they are not
warranted for listing. We invited the public to comment on the 2013
proposed rules, and we requested new information regarding Graham's
beardtongue and White River beardtongue that had become available since
the publication of the 2013 proposed rules to inform our evaluation. We
also announced the availability of new survey and monitoring
information that had become available since the publication of our 2013
proposed rules, and we announced the availability of the final 2014 CA,
a 2018 addendum to the 2014 CA, and modified conservation areas under
the 2014 CA.
Supporting Documents
We prepared two Biological Reports for Graham's beardtongue and
White River beardtongue (Service 2021a, Service 2021b) (hereafter
referred to as the Biological Reports), using concepts from the
Service's species status assessment (SSA) framework (Smith et al. 2018,
entire). The first Biological Report (Service 2021a, entire) represents
a compilation of the best scientific and commercial data available
concerning the current condition of the two species, including the
impacts of past and present influences (both negative and beneficial)
on the beardtongues, as well as a discussion of our recommendations for
avoidance buffers and surface disturbance caps. The second Biological
Report (Service 2021b, entire) represents a compilation of the best
scientific and commercial data available concerning the projected
future condition of the two species, including the impacts of
influences (both negative and beneficial) that are anticipated to
affect the beardtongues into the future. In accordance with our joint
policy on peer review published in the Federal Register on July 1, 1994
(59 FR 34270), and our August 22, 2016, memorandum updating and
clarifying the role of peer review of listing actions under the Act, we
sought the expert opinions of three appropriate subject matter
specialists regarding our Biological Report of Current Condition and
five appropriate subject matter specialists regarding our Biological
Report of Future Condition for the two beardtongues. We received
responses from three specialists on our Biological Report of Current
Condition and from four specialists on our Biological Report of Future
Condition, which informed the underlying analysis and scientific basis
for this document. (Some peer reviewers reviewed both biological
reports). In preparing this listing determination, we incorporated the
results of these reviews into our final biological reports, as
appropriate.
We also sent the Biological Reports to partners, including the
signatories to the 2014 CA (BLM; Utah DNR; SITLA; PLPCO; Uintah County,
Utah; Rio Blanco County, Colorado). The Biological Reports and other
materials relating to this listing determination can be found on the
Mountain-Prairie Region website at https://www.fws.gov/mountain-prairie/es/GrahamsAndWhiteRiverBeardtongue.php and at https://www.regulations.gov under Docket No. FWS-R6-ES-2019-0029.
Summary of Comments and Recommendations
As stated above under Previous Federal Actions, on August 6, 2013,
we published proposed rules to list Graham's beardtongue and White
River beardtongue as threatened species and to designate critical
habitat (78 FR 47590 and 47832). These proposed rules each had a 60-day
comment period, ending October 7, 2013. We also contacted appropriate
Federal and State agencies, scientific experts and organizations, and
other interested parties and invited them to comment on the proposals.
Newspaper notices inviting general public comment and announcing our
informational meeting and public hearing were published in the Salt
Lake Tribune, Deseret News, and Uintah Basin Standard. On May 6, 2014,
we announced the reopening of the public comment period on our 2013
proposed listing and proposed designation of critical habitat rules
until July 7, 2014 (79 FR 25806). We received requests for a public
hearing, which was held in Vernal, Utah, on May 28, 2014.
Subsequently, we withdrew the 2013 proposed rules and then later
reinstated them following litigation. As a result, on September 12,
2019, we again reopened the comment period on the 2013 proposed rules
for 30 days (84 FR 48090). We then developed two Biological Reports
regarding the two species' current and future conditions (Service
2021a, 2021b), each of which underwent peer review. Responses to
comments we received during the comment period for our September 12,
2019, document and from peer reviews of the Biological Reports are
provided below. For additional responses to comments for which there is
no updated information since 2014, please see the August 6, 2014,
withdrawal of the 2013 proposed rules (79 FR 46042). All substantive
information provided during all peer reviews and all comment periods
has either been incorporated directly into this final determination or
our Biological Reports as appropriate or is addressed below. Comments
related to our 2013 proposed critical habitat designation are not
addressed here; given the decision to withdraw the listing proposal, no
further assessment of the proposed critical habitat designation is
necessary at this time.
Peer Review Comments
We reviewed all comments on the Biological Reports that we received
from the peer reviewers for substantive issues and new information
regarding the beardtongues. One peer reviewer provided favorable
support of the metrics used to evaluate the beardtongues' current and
future condition and provided no edits to the documents. Three peer
reviewers provided additional information, clarifications, and
suggestions, which we have either incorporated into the Biological
Reports or addressed below.
(1) Comment: One reviewer stated that it does not seem logical that
large Graham's beardtongue populations contain such a wide range of
plant abundance (between 171 and 19,735 plants). The reviewer
recommended that we provide different delineations of small, medium,
and large population sizes for the beardtongues, and they suggested the
following categories: Small population size between 0 and 100 plants;
medium population size between 101 and 1,000 plants; and large
population size greater than 1,000 plants.
Our Response: The recommendation may be appropriate for species
that do not have a population viability analysis (PVA), or a peer-
reviewed PVA. However, we delineated the population size categories
based on a peer-reviewed PVA for the beardtongues. We calculated the
extinction risk of each beardtongue population and considered large
Graham's beardtongue populations to have an extinction risk of less
than
[[Page 2110]]
five percent over a 50 year period (USFWS 2021a, pp. 59-61). Large
Graham's beardtongue populations must have a minimum of 131 plants and
the largest population with 19,735 plants (population 27) has a much
lower extinction risk (less than one percent) compared to another
population with 171 plants (between four and five percent). Our large
population delineation identifies a lower threshold than what the
reviewer suggested since it is based on a species-specific evaluation
rather than generalized categories that do not take into account a
species' life history or demography. We considered the PVA results to
provide the best available information to delineate the beardtongues'
population size categories, and as such did not make any changes in
response to this comment.
(2) Comment: One reviewer recommended that our 300-ft (91.4-m)
avoidance buffer incorporate pollinator foraging distances for the
primary pollinators to ensure adequate beardtongue pollination and
reproduction.
Our Response: We considered the effects to individual plants,
populations, and pollinators when developing our avoidance buffer and
surface disturbance cap recommendations. Our recommended 300-ft (91.4-
m) avoidance buffer protects individual beardtongue plants from
occupied habitat loss and effects from fugitive dust and invasive
weeds. Our recommended surface disturbance caps limit pollinator
habitat loss and were designed to be used in tandem with the avoidance
buffer to maintain population-level processes such as visitation and
gene flow by pollinators as well as the condition of the beardtongues'
populations. We evaluated pollinators and their needs at the
beardtongue population level to support gene flow between plants and
population-level reproduction rather than at an individual plant level.
We incorporated pollinator foraging distances into our surface
disturbance cap recommendation to restrict the amount of habitat loss
and fragmentation within a beardtongue population's pollinator habitat.
We delineated a population's pollinator habitat based on the foraging
distance of the beardtongues' largest pollinators: 2,297 ft (700 m) for
Graham's beardtongue and 1,640 ft (500 m) for White River beardtongue.
Based on our review of the best available information and current
habitat loss within pollinator habitat of beardtongue populations, the
needs of pollinators and beardtongue reproduction can be supported even
with some loss of pollinator habitat that occurs outside of the 300-ft
(91.4-m) plant avoidance buffer (USFWS 2021a, Appendix E). Current
levels of habitat loss within the pollinator habitat of long-term
monitoring plots are low, ranging from zero to five percent, with no
statistically significant negative effects to pollinator visitation or
beardtongue reproduction (USFWS 2021a Appendix E). Published literature
indicates that these negative effects are realized after considerable
habitat loss has occurred for other species and habitats (USFWS 2021a
Appendix E). Our recommendations are consistent with supporting the
needs of pollinators and population-level gene flow within relatively
intact habitat conditions. Together, the avoidance buffer and surface
disturbance caps within conservation areas should conserve beardtongue
plants and their pollinators from stressors at two different scales.
(3) Comment: One reviewer commented that our knowledge of the
beardtongues' current distribution is incomplete due to lack of surveys
on Tribal lands and the State of Utah Department of Wildlife Resources
lands in Range Unit 2. Surveys are needed in these areas.
Our Response: We acknowledge the lack of surveys in these areas in
our Biological Reports. Our determinations on listing the two species
are based on the best available scientific information.
(4) Comment: One reviewer commented that we omitted review surveys,
impacts, and new information for the beardtongues from the Questar
Mainline 103 pipeline replacement project. White River beardtongue
plants had established in a roadside berm that was created by the
initial disturbance between 2009 and 2012. Field observations indicate
that White River beardtongue plants were able to establish or
reestablish in roadcuts and other disturbance areas.
Our Response: We reviewed the 2012 environmental assessment
prepared by the Federal Energy Regulatory Commission (FERC) for this
project, and pre-construction surveys were performed for the
beardtongues; however, no beardtongue plants were located within the
project right-of-way. We mention in the Biological Reports that White
River beardtongue occupies some disturbance areas and exhibits some
tolerance to habitat disturbance.
(5) Comment: One reviewer commented that it may be worth noting
that sparsely vegetated shale barren habitat on ridgelines that are
considered potential habitat for the beardtongues are attractive off-
road vehicle (OHV) routes.
Our Response: We mention the potential for OHV use to occur in the
beardtongues' habitat in the Biological Reports. However, the best
available information does not indicate that OHV use is occurring there
or impacting plants or populations. Therefore, we did not consider OHV
use as a stressor in our analysis.
(6) Comment: One reviewer commented that the beardtongues' survey
results in the Red Leaf lease area on State lands may not be included
in the population estimates or maps provided in the draft Biological
Report.
Our Response: We reviewed our dataset and confirmed that the
beardtongues' survey results for this area are included in the
population estimates and maps provided in the Biological Report.
(7) Comment: One reviewer recommended that we include the 2020
beardtongues' survey results in Colorado in the Biological Reports.
Our Response: We added the 2020 survey results to the Biological
Reports and considered them in our evaluation of the beardtongues'
current and future condition. These survey results increased the number
of Graham's beardtongue plants in population 22 by 565 plants and
reduced the number of White River beardtongue plants in population 10
by 1,039 plants.
(8) Comment: One reviewer questioned whether the high energy
development scenario is plausible over the next 10 years because of the
lack of oil shale commercial development in the Uinta Basin and the
checkerboard pattern of landownership that would add complexity, time,
and uncertainty to the development of these lands.
Our Response: We intended the high energy development scenario to
illustrate the worst-case impacts from energy development. We also
recognize that this scenario, while plausible, may be less likely to
occur than other scenarios, and that actual future impacts may range
anywhere between that scenario and the current condition.
Public Comments
(9) Comment: Several commenters stated that the Service should
complete an updated threat assessment and provide the public with an
opportunity to comment prior to making a final listing determination
and critical habitat designation. Commenters believe that threats
documented in the 2013 proposed listing rule are still present and oil
spills from pipeline ruptures are a new threat associated with energy
development that was not previously addressed. Commenters stated that
White River beardtongue should be
[[Page 2111]]
listed as an endangered species, not a threatened species, due to
imminent threats. One commenter mentioned the landscape surrounding
beardtongue populations in Colorado has been heavily fragmented by
existing energy development infrastructure; if completed, a proposed
rail line in the Uinta Basin could increase energy development impacts
to the beardtongues.
Our Response: We completed a new threat assessment that is
presented in our Biological Reports (Service 2021a, entire; 2021b,
entire), and summarized in this document. We evaluated stressors to the
beardtongues and considered new information, including current and
projected future levels of habitat loss and fragmentation within the
beardtongues' pollinator habitat and planned projects including the
proposed Uinta Basin rail line. The best available information does not
indicate that negative impacts to the beardtongues have occurred or are
expected to occur from oil spills.
(10) Comment: Multiple commenters mentioned the need for improved
surface disturbance caps and buffers to protect the plants from
negative impacts from development. The 300-ft (91.4-m) buffer from
surface-disturbing activities as outlined in the 2014 CA is less than
the 2,297-ft (700-m) proposed critical habitat area surrounding known
occurrences; buffers of at least 650 ft (200 m) are needed to conserve
pollinators until the research by Barlow and Pavlik is completed to
determine minimum habitat areas for populations.
Our Response: We evaluated the best available information to inform
our recommended avoidance buffer and surface disturbance caps in our
Biological Report of current condition (Service 2021a, pp. 81-82). For
more information refer to our response to Comment 2, above. We did not
rely on the Barlow and Pavlik road impact evaluation to inform our
avoidance buffer recommendation, because we and a peer reviewer
identified concerns regarding their assumption that roads were major
drivers of the beardtongues' plant size and reproductive effort, and
the lack of evidence supporting this assumption from published
literature (Barlow and Pavlik 2020, entire; McNellis 2021a and 2021b,
entire; Service 2021a, p. 41). We considered the Barlow and Pavlik road
impact evaluation to be an exploratory model where the results are
predictions to be tested and do not demonstrate causation (Service
2021a, p. 41).
(11) Comment: Multiple commenters were concerned that the
conservation areas in the 2014 CA protect less acreage (44,373 ac) than
the amount of area that was proposed for critical habitat (67,959 ac
(27,502 ha)). The 2014 CA protects only 78 percent of the population of
Graham's beardtongue and 59 percent of the population of White River
beardtongue; the conservation areas do not include all White River
beardtongue plants and habitat in the Book Cliffs, which the commenters
believed was insufficient. They recommend expanding conservation areas
on Federal and State lands to avoid listing both species as threatened
under the Act. Multiple commenters stated that critical habitat should
include all plants identified in surveys to-date. Three commenters
stated that research on White River beardtongue identified the taxon
has small and isolated populations with low levels of genetic diversity
(Rodriguez-Pe[ntilde]a et al. 2018), and it is important to protect
habitat for as many populations as possible to ensure future genetic
viability.
Our Response: There are many ways to achieve conservation of the
beardtongues. The proposed critical habitat designation identified all
populations known in 2013, with the understanding that critical habitat
alone would not convey or guarantee conservation, because critical
habitat protections for plants do not apply on non-Federal lands
without a Federal action. The proposed critical habitat designations
for the two beardtongue species overlapped and totaled 75,846 ac
(30,694 ha). Proposed critical habitat on Federal lands alone would
apply to only 38 percent of the population of Graham's beardtongue
(21,301 plants) on 41,668 ac (16,862 ha), and 27 percent of the
population for White River beardtongue (7,942 plants) on 5,758 ac
(2,330 ha) (Service 2021a, Appendix B, p. 86). The 2014 CA conserves a
smaller amount of habitat in designated conservation areas (42,993 ac
(17,399 ha)) than we proposed as critical habitat but provides
protections to a similar percentage of the Graham's beardtongue
population and a much larger percentage of the White River beardtongue
population than afforded by proposed critical habitat on Federal lands.
The 2014 CA protects 41 percent of Graham's beardtongue plants (23,333
plants) and 66 percent (19,710 plants) of White River beardtongue
plants on Federal and non-Federal lands (Service 2021b, pp. 44-45). The
2014 CA conservation areas support 1,094 White River beardtongue plants
in the Book Cliffs population to maintain a large population size with
a low risk of extinction (less than 5 percent risk of extinction over a
50-year period). In addition, the conservation areas are strategically
placed to provide habitat connectivity, thereby conserving the
resiliency, redundancy, and representation (e.g., genetic diversity) of
the beardtongues across their ranges (Service 2021a, pp. 42-45;
Penstemon Conservation Team 2014, entire; Penstemon Conservation Team
2018b, 2018c, entire).
(12) Comment: Multiple commenters expressed concern that the
private parties will end their participation in the 2014 CA in 2029.
Our Response: The duration of the 2014 CA is 20 years (until 2034)
for Federal, State, and county parties, and 15 years (until 2029) for
private parties. During this time, we hope that information regarding
the likelihood of energy development beyond 2030 becomes available. We
committed to assess the status of the beardtongues by December 31,
2028, prior to the private parties leaving the agreement. If, during or
after this timeframe, either species meets the Act's definition of an
``endangered species'' or a ``threatened species,'' we can act to
protect the species through the listing process. If the beardtongues
are listed under the Act, the 2014 CA expires to avoid a situation
where the parties are bound to both the commitments in the agreement
and the requirements of the Act. This conservation framework provides a
consistent regulatory framework for landowners or managers who may be
affected, while still protecting the beardtongues under either
scenario.
(13) Comment: Commenters expressed concern that the voluntary
nature of the 2014 CA by private parties is inadequate and will lead to
inconsistent management of the beardtongues. The Federal agencies do
not have regulatory mechanisms in place to enforce the conservation
measures in the 2014 CA on Federal land, and there are no regulatory
mechanisms in place that provide the necessary landscape-level
protections to the beardtongues from the threats identified in the 2013
proposed rules. The results of livestock monitoring and assessments
were not made available to the public; commenters questioned whether
monitoring was conducted according to the schedule identified in the
livestock grazing plan.
Our Response: The 2014 CA was developed by county, State, and
Federal entities that have the authority to regulate and permit
activities on lands within their jurisdiction that overlap with the
beardtongues' habitat. These parties are implementing the voluntary
agreement and providing protections to the beardtongues that we
considered in
[[Page 2112]]
this listing determination. We summarize the regulatory mechanisms
implemented by each party, the accomplishments of the 2014 CA,
livestock monitoring, and corrective actions in our 2021 Biological
Reports (Service 2021a, pp. 42-45, 54-56; 2021b, pp. 43-48).
(14) Comment: Multiple commenters stated the beardtongues continue
to be at risk of extinction due to small population size and isolation.
The 2018 population size is misleading and unknown because: (a) Surveys
were performed inconsistently and haphazardly across the beardtongues'
ranges and were not derived from annual censuses or a scientifically
robust sampling design; (b) plants counted in one year may have been
counted in subsequent years; and (c) the Service's assumptions that no
previously documented plants have died of natural or human causes or
that all previously documented plants have been replaced by new plants
are incorrect, and there is no data to support them. One commenter
noted that some beardtongue species tend to form an extended
underground root system and that the beardtongues' total population
sizes could be much smaller than our population estimates.
Our Response: We stated in our 2021 Biological Reports and past
rulemakings that the total known number of beardtongues has increased
over time based on new survey information rather than increasing
population trends. Our 2018 population estimates were based on long-
term demographic monitoring information that indicate adult beardtongue
plants are long-lived (30 years or more) and maintain high survival
rates, and populations are generally stable (Pavlik et al. 2015,
entire). Therefore, it is reasonable to assume that plants continue to
persist on the landscape unless there is human modification of the
habitat, or there are high-intensity sheep grazing incidents. We and
our partners reviewed all survey information and removed duplicate
records to minimize the double-counting of individual plants. There is
no indication that the beardtongues form extended underground root
systems based on past excavations and translocations of individual
plants.
(15) Comment: Multiple commenters requested an extension of the
public comment period and the release of survey results and livestock
monitoring data that became available after the publication of the 2013
proposed rules.
Our Response: We have held three comment periods on the proposed
rules. We held our first comment period for 60 days, from August 6 to
October 7, 2013 (see 78 FR 47590 and 47832); our second comment period
for 60 days, from May 6 to July 7, 2014 (see 79 FR 25806), during which
we also held a public information meeting and public hearing on May 28,
2014; and our third comment period for 30 days, from September 12 to
October 15, 2019 (see 84 FR 48090). Therefore, we have provided
sufficient opportunities for the public to comment on the proposals.
During each of the three comment periods, we made available any survey
and livestock monitoring data that we had at that time. Specifically,
during our third public comment period in 2019, we announced the
availability of the latest survey results and other information that
had become available since 2013.
(16) Comment: One commenter stated that incompatible livestock
grazing is occurring on Federal lands, all beardtongue sites within
Federal conservation areas should meet BLM Rangeland Health Standards,
and monitoring should continue to assess habitat conditions and inform
management decisions.
Our Response: Livestock grazing appears to be compatible with
conservation of the beardtongues except for intensive sheep grazing
events that occur in localized areas (USFWS 2021a, pp. 54-56). The BLM
is addressing livestock impacts to the beardtongues on Federal lands as
per the 2014 CA. The 2014 CA states that BLM will monitor beardtongues'
impacts from grazing and will adjust grazing regimes accordingly to
reduce associated impacts. For example, BLM implemented corrective
actions that were successful in removing grazing impacts to Graham's
beardtongue in the Raven Ridge Area of Critical Environmental Concern
(ACEC) in Colorado, and BLM continues to monitor livestock impacts to
the beardtongues and evaluate rangeland health (Service 2021a, p. 55).
BLM is required to manage rangelands as per the requirements of 43 CFR
part 4100, subpart 4180 (``Fundamentals of Rangeland Health and
Standards and Guidelines for Grazing Administration'' (Rangeland
Health)) and implement the agency's policy guidelines identified in the
Standards for Rangeland Health.
(17) Comment: A commenter stated that surface disturbance of all
kinds affects the beardtongues' pollinators; cattle trampling results
in greater impacts to the ground surface than other herbivores.
Our Response: The best available information indicates that the
beardtongues maintain a diverse pollinator assemblage and adequate
reproduction under permitted grazing regimes. Monitored populations of
the beardtongues that overlap active grazing allotments reproduce by
seed on an annual basis and demonstrate reproductive rates that are not
pollinator-limited (Barlow and Pavlik 2020, p. 5).
(18) Comment: A commenter stated that monitoring reports indicate
that herbivory from many sources may impact the beardtongues' ability
to successfully replenish the seedbank. Herbivory resulted in high
levels of stress to Graham's beardtongue in 2014, and low seedling
survivorship.
Our Response: Herbivory to the beardtongues appears to be a natural
stressor to beardtongue individuals and is primarily attributed to
native grazers (e.g., rodents, rabbits), rather than livestock (Service
2021a, p. 54). Monitored populations of both species continue to remain
stable despite the regular frequency, and occasional high levels, of
herbivory.
(19) Comment: The State of Utah provided information that the
number of new oil and gas wells dropped by 67 percent between 2014 and
2015, due to the drop in crude oil and natural gas prices; should
prices rebound, the increasing use of horizontal well drilling could
reduce the amount of future surface disturbance. Should the market
demand for oil shale increase to an economically favorable price,
development of this resource may be focused on the richer Piceance
Basin in Colorado rather than on the Uinta Basin in Utah. Because of
the low likelihood of development from oil and gas in the foreseeable
future, the Service should not list the beardtongues. Another commenter
stated that a determination to list a species as a threatened species
under the Act requires a determination as to the likelihood rather than
the mere prospect that a species will or will not become endangered in
the foreseeable future. The likely threshold of Graham's and White
River beardtongues to become an endangered species in the foreseeable
future was suspect in the August 6, 2013, proposed listing rule (78 FR
47590); was mitigated by the 2014 CA; and is better stated as unlikely
with the discoveries of new populations, the species' range expansion,
and the success in research resulting from the 2014 CA.
Our Response: We note that the Act defines a threatened species as
a species that is ``likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its
range''. The term ``foreseeable future'' extends only so far into the
future as the Service can reasonably
[[Page 2113]]
determine that both the future threats and the species' responses to
those threats are likely. In other words, the foreseeable future is the
period of time in which we can make reliable predictions. See the
Regulatory Framework section below for further information on how we
make determinations on whether to list a species under the Act.
We evaluated the likelihood and location of future energy
development (oil shale, tar sands, traditional oil and gas development)
within the beardtongues' ranges in our Biological Reports based on the
best available information, expert opinion, and peer review (Service
20201a, pp. 45-54; Service 20201b, pp. 15-38, Appendix). Our analysis
of projected future energy development evaluates worst-case impacts
under the moderate and high energy development scenarios until 2030,
which is the date through which reliable predictions can be made based
on current information.
(20) Comment: Commenters including the State of Utah stated that
the rangewide population estimates for the beardtongues have greatly
increased since 2013. The known population of Graham's beardtongue
increased by 177 percent, and the known population of White River
beardtongue increased by 284 percent.
Our Response: As stated by the commenters, the rangewide population
estimates for the beardtongues have greatly increased since 2013, based
on new survey information and a genetic evaluation of White River
beardtongue. Although we want to emphasize that the increase in
population size does not mean the total population is increasing.
Rather, additional survey results provide a more complete picture of
how many beardtongue plants exist across their ranges (USFWS 2021a, pp.
21, 28). Monitoring indicates the beardtongue populations are stable in
size.
(21) Comment: The State of Utah and other commenters expressed
support for the 2014 CA as an appropriate regulatory mechanism to
promote research, surveys, and stakeholder engagement. Uintah County,
Utah, enacted a zoning ordinance for a 15-year period until 2029, to
apply surface disturbance caps and implement a 300-ft (91.4-m)
avoidance buffer for 2014 CA conservation areas on private lands. The
signatories to the 2014 CA have provided considerable staff time and
funding to implement the agreement; successfully implemented surveys,
research, monitoring, and planning commitments; expanded conservation
areas; committed to providing a summary report of accomplishments every
5 years; and extended the 2014 CA protections on State and Federal
lands for a total of 20 years until July 25, 2034. Uintah County
expressed their commitment to the conservation of the beardtongues and
stated the goal of the 2014 CA is to ensure the beardtongues thrive
long after the expiration of the agreement.
Our Response: The signatories are implementing the 2014 CA, and
their many contributions were summarized by State members of the
agreement (Sheppard and Wheeler 2020, entire). New commitments made by
signatories were summarized in the 2014 CA's 2018 addendum, which
includes the Service's commitment to assess the beardtongues' status by
December 31, 2028. We have considered the 2014 CA and its 2018 addendum
in this listing determination.
Background
A comprehensive review of the taxonomy and morphology, habitat,
life history and resource needs, population distribution and status,
and pollinator information for both Graham's beardtongue and White
River beardtongue is presented in our Biological Report of current
condition (Service 2021a, pp. 13-41) and is briefly summarized here.
Graham's and White River beardtongues are endemic plants found in
northeastern Utah and northwestern Colorado. Graham's beardtongue
occurs in 27 populations, with a total population of 56,385
individuals, across the Uinta Basin in Duchesne and Uintah Counties in
Utah and Rio Blanco County in Colorado (Service 2021a, pp. 21-27).
White River beardtongue occurs in 17 populations, with a total
population of 29,902 individuals across the Uinta Basin and at an
isolated location in the Book Cliffs in Grand and Uintah Counties in
Utah and Rio Blanco County in Colorado (Service 2021a, pp. 28-33). For
the purposes of our analysis, we grouped the populations for each
species into five range units (i.e., metapopulation areas). The two
species overlap with each other in four of their range units in the
central and eastern portion of their ranges in Utah and Colorado. The
occupied habitat area for Graham's and White River beardtongues is
9,585 ac and 3,462 ac of habitat, respectively. Their pollinator
habitat area includes beardtongue occupied habitat and a larger
pollinator foraging area, which collectively comprise 91,232 ac and
29,476 ac for Graham's beardtongue and White River beardtongue,
respectively.
Graham's and White River beardtongues have highly specific soil
requirements and occupy exposed oil shale strata of the Green River
geologic formation. The beardtongues are long-lived perennial plant
species that flower in the spring and summer months, and both species
require pollinators for maximum plant reproduction. Plant survival and
successful recruitment require suitable soils with microsites for
establishment and growth. The sparse canopy coverage of associated
vegetation likely results in low competition from other plants, and the
beardtongues appear to be poor competitors with weeds. Reproductive
success and maintenance of genetic diversity of these two beardtongues
require habitat that supports generalist and specialist pollinators,
primarily bees and a specialist wasp. For more detailed information
about the biology of both beardtongue species, see our Biological
Report of current condition (Service 2021a, pp. 13-41).
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species is an endangered species or a threatened species. The
Act defines an endangered species as a species that is ``in danger of
extinction throughout all or a significant portion of its range,'' and
a threatened species as a species that is ``likely to become an
endangered species within the foreseeable future throughout all or a
significant portion of its range.'' The Act requires that we determine
whether any species is an endangered species or a threatened species
because of any of the following five factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are
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known to or are reasonably likely to negatively affect individuals of a
species. The term ``threat'' includes actions or conditions that have a
direct impact on individuals (direct impacts), as well as those that
affect individuals through alteration of their habitat or required
resources (stressors). The term ``threat'' may encompass--either
together or separately--the source of the action or condition or the
action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the expected response by the species,
and the effects of the threats--in light of those actions and
conditions that will ameliorate the threats--on an individual,
population, and species level. We evaluate each threat and its expected
effects on the species, then analyze the cumulative effect of all of
the threats on the species as a whole. We also consider the cumulative
effect of the threats in light of those actions and conditions that
will have positive effects on the species, such as any existing
regulatory mechanisms or conservation efforts. The Secretary determines
whether the species meets the definition of an ``endangered species''
or a ``threatened species'' only after conducting this cumulative
analysis and describing the expected effect on the species now and in
the foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as the
Service can reasonably determine that both the future threats and the
species' responses to those threats are likely. In other words, the
foreseeable future is the period of time in which we can make reliable
predictions. ``Reliable'' does not mean ``certain''; it means
sufficient to provide a reasonable degree of confidence in the
prediction. Thus, a prediction is reliable if it is reasonable to
depend on it when making decisions.
It is not always possible or necessary to define foreseeable future
as a particular number of years. Analysis of the foreseeable future
uses the best scientific and commercial data available and should
consider the timeframes applicable to the relevant threats and to the
species' likely responses to those threats in view of its life-history
characteristics. Data that are typically relevant to assessing the
species' biological response include species-specific factors such as
lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
Analytical Framework
The Biological Reports document the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the two species, including an assessment of the potential
threats to the species. The Biological Reports do not represent a
decision by the Service on whether these species should be listed as
endangered or threatened species under the Act. However, they do
provide the scientific basis that informs our regulatory decisions,
which involve the further application of standards within the Act and
its implementing regulations and policies. The following discussions
provide summaries of the key results and conclusions from the
Biological Reports; the full Biological Reports can be found on the
Mountain-Prairie Region website at https://www.fws.gov/mountain-prairie/es/GrahamsAndWhiteRiverBeardtongue.php and at https://www.regulations.gov under Docket No. FWS-R6-ES-2019-0029.
To assess Graham's beardtongue and White River beardtongue
viability, we used the three conservation biology principles of
resiliency, redundancy, and representation (Shaffer and Stein 2000, pp.
306-310; Smith et al. 2018, p. 304) (hereafter referred to as the 3Rs).
Briefly, resiliency supports the ability of the species to withstand
environmental and demographic stochasticity (for example, wet or dry,
warm or cold years), redundancy supports the ability of the species to
withstand catastrophic events (for example, droughts, large pollution
events), and representation supports the ability of the species to
adapt over time to long-term changes in the environment (for example,
climate changes). In general, the more resilient and redundant a
species is and the more representation it has, the more likely it is to
sustain populations over time, even under changing environmental
conditions. Using these principles, we identified the species'
ecological requirements for survival and reproduction at the
individual, population, and species levels, and described the
beneficial and risk factors influencing the species' viability.
Our Biological Reports used many of the concepts of the Service's
SSA framework (Smith et al. 2018, entire) and followed sequential
stages to characterize the viability of the Graham's and White River
beardtongues. In our Biological Report of current condition (Service
2021a), we first evaluated the individual species' life-history needs.
The next stage involved an assessment of the historical and current
condition of the species' demographics and habitat characteristics,
including an explanation of how each species arrived at its current
condition. In our Biological Report of future condition (Service
2021b), the final stage involved making predictions about the species'
responses to positive and negative environmental and anthropogenic
influences. Throughout all of these stages, we used the best available
information to characterize viability as the ability of a species to
sustain populations in the wild over time. We use this information to
inform our regulatory decisions.
Summary of Biological Status and Threats
In preparing the Biological Reports for Graham's and White River
beardtongues, we reviewed available reports and peer-reviewed
literature, we incorporated survey information, and we sought
information from experts regarding the species' primary stressors to
further refine our analysis. We identified uncertainties and data gaps
in our assessment of the current and future status of both species. In
this discussion, we briefly summarize the biological condition of both
species and their resources, the influence of those conditions on the
species' overall viability, and the risks to that viability. For a full
description of our analysis of each species' biological status, current
condition, and projected future condition, see our Biological Reports
(Service 2021a, 2021b).
Life-History Needs
At the individual level, both Graham's beardtongue and White River
beardtongue need suitable soils (shallow soils with virtually no soil
horizon development with a surface usually mixed with fragmented
shale), suitable precipitation (6 to 12 inches annually), and suitable
temperatures (including a minimum of 45 consecutive days less than 40
degrees Fahrenheit ([deg]F) in the winter months) to support plant
growth (Service 2021a, pp. 17, 20). To support plant reproduction, the
plants need visitation and pollination by bee and wasp pollinators, and
floral resources for pollinators provided by the associated plant
community, including
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the presence of other beardtongue species (Service 2021a, pp. 17, 20).
Suitable microsites that provide cover or shelter for seed germination,
establishment, and growth are also needed to support both species
(Service 2021a, pp. 17, 20).
For Graham's and White River beardtongues to maintain viability,
their populations or some portion of their populations must be
sufficiently resilient (i.e., able to sustain populations in the face
of environmental variation). At the population level, important habitat
needs for the beardtongues include: (1) Suitable soil substrate to
maximize recruitment and survival within the population (soil and
microsite quality); (2) sufficient floral resources to ensure
pollinator visitation and maximize adult reproductive output; (3)
suitable climate conditions (temperature, moisture) within species'
physiological tolerances to maximize population growth and size; and
(4) sufficient seed dispersal and contribution to the seed bank to
support population stability or growth. If these habitat factors occur
over an area of sufficient size to support a sufficient population size
and the demographic needs of the species, we anticipate plant
populations will retain sufficient resiliency to withstand natural
stochastic events (Service 2021a, pp. 33-34).
Based on their population demographics, we expect that survival of
established plants (i.e., vegetative and adult (reproductive) plants)
and high reproductive output are the most important factors
contributing to the growth rate and size of populations (Service 2021a,
pp. 34-35). Lastly, resiliency of populations is also influenced by the
degree of connectivity among populations (Service 2021a, p. 35).
At the species level, Graham's and White River beardtongues each
need multiple, sufficiently resilient, connected populations that
represent the range of ecological and genetic diversity across their
ranges (Service 2021a, p. 35). Populations that are connected allow for
immigration and emigration across the landscape and ensure gene flow
and recolonization following extirpation of individual sites or
populations (Auffret et al. 2017, pp. 1-3). In order to adapt to
changing physical and biological conditions, each species needs to
maintain its genetic and ecological diversity (representation) and an
adequate number and distribution of sufficiently resilient populations
across its range (redundancy).
Because the beardtongues rely on pollinators to maximize seed
production and genetic diversity of plant populations, we also note
that the persistence of the pollinator assemblage for Graham's and
White River beardtongues depends on maintaining nesting sites and
floral resources to support pollinator needs (Service 2021a, pp. 35-
36). Broadly, the needs of Graham's and White River beardtongue
pollinators include intact habitat conditions and an abundance of
floral resources throughout the growing season. For an in-depth
discussion of the beardtongues' pollinator assemblage, pollinator life
history, and the needs of pollinators, see our Biological Report on
current condition (Service 2021a, pp. 35-41).
Summary of Factors Influencing Viability
As mentioned above in Regulatory Framework, a species may be
determined to be an endangered or threatened species due to one or more
of the five factors described in section 4(a)(1) of the Act: (A) The
present or threatened destruction, modification, or curtailment of its
habitat or range; (B) overutilization for commercial, recreational,
scientific, or educational purposes; (C) disease or predation; (D) the
inadequacy of existing regulatory mechanisms; or (E) other natural or
manmade factors affecting its continued existence. Potential stressors
we evaluated for Graham's and White River beardtongue in our Biological
Reports included: Three types of energy exploration and development:
Oil shale, tar sands, and traditional oil and gas drilling (Factor A);
road construction (Factor A); herbivory (Factor C); invasive weeds
(Factor A); small population size (Factor E); and climate change
(Factors A and E). We also evaluated how existing regulatory mechanisms
(Factor D) or other conservation measures (primarily the 2014 CA and
2018 addendum) may lessen the impacts of these stressors. The best
available information does not indicate that overutilization (Factor B)
is a threat to either beardtongue species. A brief summary of the
potential factors affecting Graham's and White River beardtongues is
presented below; for a full description of our evaluation of the
effects of these stressors and conservation efforts, refer to the
Biological Reports (Service 2021a, pp. 41-63; Service 2021b, pp. 15-
48).
Conservation Agreement
Following publication of our August 6, 2013, proposed rules (78 FR
47590 and 47832), we entered into a 2014 CA with the following parties:
BLM; Utah DNR; SITLA; Uintah County, Utah; the Utah PLPCO; and Rio
Blanco County, Colorado (Penstemon Conservation Team 2014, entire). The
2014 CA was designed to specifically address the threats identified in
our August 6, 2013, proposed rule to list the two species (78 FR
47590), and expand the protections afforded to the beardtongues on
Federal lands. The 2014 CA also provides the species protections on
certain non-Federal lands.
The parties committed to a number of conservation actions,
including the establishment of 44,373 ac (17,957 ha) of occupied and
suitable habitat as protected conservation areas on Federal and non-
Federal lands. Within the designated conservation areas, surface
disturbance caps are applied to limit the loss and fragmentation of
habitat from development, in conjunction with a 300-ft (91.4-m)
avoidance buffer between disturbance and beardtongue plants. Uintah
County enacted an ordinance to enforce the surface disturbance caps and
avoidance buffer within conservation areas on private lands (Penstemon
Conservation Team 2014, pp. 28, 35). Additionally, BLM implements a
minimum 300-ft (91.4-m) avoidance buffer wherever beardtongue plants
occur on Federal lands, as identified in BLM's resource management
plans. The parties also developed monitoring plans that include
adaptive management to address the cumulative impacts from livestock
grazing, invasive weeds, small population size, and climate change by
continuing species monitoring, monitoring climate, reducing impacts
from grazing when and where detected, and controlling invasive weeds.
Today, the 2014 CA remains in place, and in 2018, the parties added
2,339 ac (947 ha) as new conservation areas for White River beardtongue
habitat on Federal and State (SITLA) lands and removed 115 ac (47 ha)
of low priority conservation areas (Penstemon Conservation Team 2018b
and 2018c, entire). The parties also signed an addendum (Penstemon
Conservation Team 2018d, entire) to extend the term of the 2014 CA by
an additional 5 years, until 2034, for the Federal, State (SITLA, DNR),
and county parties. The private lands in Utah will be released from the
2014 CA when the original term ends in 2029. For the purposes of our
analysis, we considered only the 2014 CA protections that are afforded
to the beardtongues until 2034. Additional conservation areas under the
2014 CA were designated as ``interim'' and only provide shorter-term
protections. However, we did not consider plants in
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these interim areas as protected for the purposes of our analysis. We
are uncertain of the likelihood of 2014 CA protections continuing
beyond 2034 when the CA expires; however, it may be possible to renew
the CA with willing partners. As part of the CA, the Service committed
to assess the status of the beardtongues in 2028, prior to the
expiration of protections on private lands. For additional discussion
and details on the 2014 CA and its accomplishments, see our Biological
Reports (Service 2021a, pp. 42-45; Service 2021b, pp. 43-48).
Other Regulatory Mechanisms
While the 2014 CA is a voluntary agreement, the State of Utah
(SITLA and PLPCO), Uintah County (Utah), and Rio Blanco County
(Colorado) used their regulatory authority to implement specific
protections as outlined in the 2014 CA (Penstemon Conservation Team
2014, and 2018 a, b, c, entire; Service 2021, pp. 39-43). Utah State
law protects the beardtongues on State (SITLA) designated conservation
areas and enforces the restrictions identified in the 2014 CA (see
title 53C of the Utah Code, at chapter 2, part 2, section 202 (53C-2-
202), and the Utah Administrative Code, School and Institutional Trust
Lands, at title 850, rule 150 (R850-150)). Uintah County enacted a
zoning ordinance to enforce the surface disturbance caps and an
avoidance buffer within conservation areas on private lands until 2029
(Penstemon Conservation Team 2014, pp. 28, 35; Uintah County 2018,
entire; Penstemon Conservation Team 2019, Appendix A). No other
regulatory mechanisms provide protections to the beardtongues on
private or State lands in Utah and Colorado.
Other regulatory mechanisms provide protections to Graham's
beardtongue and White River beardtongue on Federal (BLM) lands.
Graham's and White River beardtongues are BLM sensitive plant species
in Utah and Colorado, and are afforded protections at least comparable
to (if not greater than) species that are candidates for Federal
listing (BLM 2008a, p. 43). In Utah, the BLM Vernal Field Office's
resource management plan (RMP), as amended, is the regulatory framework
for BLM land management where the beardtongues occur (BLM 2008b,
entire). In Colorado, the BLM White River Field Office's RMP, as
amended, is the regulatory framework for BLM land management where the
beardtongues occur (BLM 1997, entire; BLM 2015, entire). The
protections in these RMPs include a 300-ft (91.4-m) avoidance buffer,
surface disturbance restrictions on steep slopes, areas that are
unavailable for leasing and that have no surface occupancy (NSO)
stipulations, and ACECs. For additional detail on all of these
regulatory mechanisms, see our Biological Report of future condition
(Service 2021b, pp. 46-48).
Oil Shale
Oil shale exploration (e.g., research, exploration, and
development) activities occur on State and private lands within the
range of the beardtongues. Oil shale exploration and development
activities have the potential to destroy beardtongue habitat, plants,
and populations. Currently, no exploration activities take place on BLM
lands and no plans for commercial-scale development of oil shale exist
within the range of both species in Utah and Colorado (BLM 2013,
entire; Service 2019d, entire; Service 2021a and b, entire). To date,
two oil shale exploration projects have resulted in the loss of 276 ac
(112 ha) of Graham's beardtongue pollinator habitat and 246 Graham's
beardtongue individuals in Population 13 on State lands (Red Leaf
Resources 2013, entire; Red Leaf Resources 2014, entire; The Oil Mining
Company 2014, entire; Service 2021a, pp. 45-48).
There are 10,334 ac (4,182 ha) and 1,997 ac (808 ha) of Graham's
and White River beardtongue pollinator habitat, respectively, under
lease or that have a Utah Division of Oil, Gas and Mining mine permit
(includes exploration, small and large mine permits) for oil shale
(Service 2021a, pp. 45-48). These areas contain 35 percent (19,476
plants) and 13 percent (4,314 plants) of Graham's and White River
beardtongue total populations, respectively. Within oil shale lease and
permit areas, conservation areas under the 2014 CA afford protections
to 561 Graham's beardtongue plants and 1,678 White River plants with
caps on new development and use of an avoidance buffer. The majority of
beardtongue habitat within oil shale lease areas has not been impacted
by oil shale exploration activities. Aside from the loss of Graham's
beardtongue habitat reported above, the disturbance within lease and
permit areas is the result of existing roads. We do not anticipate oil
shale exploration and development activities to occur within designated
conservation areas because of the caps on surface disturbance in the
2014 CA.
Based on past and current exploration and commercial development
activities, expert opinion, and the best available information, we
consider exploration of oil shale from 2020-2030 to be likely on State
and private lands with high economic potential within the beardtongues'
ranges (Service 2021b, pp. 15-17). However, we consider commercial
development of oil shale to be about as likely as not on State and
private lands, and unlikely on Federal lands within the beardtongues'
ranges (Service 2021b, pp. 15-17).
Tar Sands
Tar sands exploration and development activities are occurring on
private, State, and BLM lands outside of Graham's and White River
beardtongues habitat in the Uinta Basin (Service 2021a, pp. 48-49). Tar
sands exploration and development activities have the potential to
destroy beardtongue habitat, plants, and populations. To date, tar sand
exploration and development activities have not resulted in the loss of
beardtongue habitat or plants. One tar sands lease area overlaps the
Book Cliffs population of White River beardtongue; however, no White
River beardtongue plants or habitat within this lease area have been
impacted by tar sand exploration activities. The 2014 CA affords
protections to 306 plants and 97 ac (39 ha) within the State lands
portion of the lease area and we do not anticipate tar sand exploration
and development activities to occur within designated conservation
areas because of the caps on surface disturbance. There are no tar sand
leases within Graham's beardtongue habitat.
Based on past and current exploration and commercial development
activities, expert opinion, and the best available information, we
consider exploration of tar sands from 2020-2030 to be likely on State
and private lands including the PR Springs South area (Service 2021b,
pp. 24-26). However, we consider commercial development of tar sands to
be about as likely as not on State and private lands including the PR
Springs South area, and unlikely on Federal lands (Service 2021b, pp.
24-28) within the species ranges.
Traditional Oil and Gas
Traditional oil and gas exploration and development activities are
occurring on private, State, and BLM lands within Graham's and White
River beardtongues habitat (Service 2021a, pp. 49-53). Traditional oil
and gas exploration and development activities have the potential to
destroy beardtongue habitat, plants, and populations. The best
available information indicates that no loss of beardtongue plants from
these activities has occurred. However, traditional oil and gas
exploration and development activities have resulted in the loss of
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less than one percent of the total pollinator habitat area for both
species (Federal Energy Regulatory Commission 2012, pp. 24, 25;
Lewinsohn 2019, entire; Moore 2019, entire). Approximately 56 percent
of Graham's beardtongue pollinator habitat and 39 percent of White
River beardtongue pollinator habitat on State and BLM lands are leased
for traditional oil and gas development. Within traditional oil and gas
lease areas, conservation areas under the 2014 CA afford protections to
34 percent and 42 percent of the Graham's beardtongue habitat and
plants under lease, and 36 percent and 32 percent of the White River
beardtongue habitat and plants under lease. Overall, traditional oil
and gas exploration and development have resulted in a low amount of
habitat loss for the two beardtongues to date. The majority of
beardtongue pollinator habitat within lease areas is relatively intact
and undisturbed.
Based on past and current exploration and commercial development
activities, expert opinion, and the best available information, we
consider exploration of traditional oil from 2020-2030 to be likely on
Federal, State, and private lands within Uintah County in a Mancos
shale deposit (the Mancos B play), and do not expect exploration of
natural gas to occur, as it is already complete (Service 2021b, pp. 32-
33). However, we consider commercial development of natural gas to be
likely on Federal, State, and private lands, and commercial development
of oil to be unlikely within the species' ranges (Service 2021b, pp.
32-34).
Road Construction and Maintenance
Many unpaved county roads cross through Graham's and White River
beardtongue habitat, and most of these roads have existed for decades
(Service 2021a, pp. 53-54). Road construction and maintenance
activities have the potential to destroy beardtongue habitat, plants,
and populations. Plants and populations located near development
activities are prone to the effects of dust, weed encroachment, habitat
fragmentation, and pollinator disturbance. To date, existing roads and
road construction have been the cause of the majority of the loss of
beardtongue pollinator habitat. Approximately 1 percent and 1.5 percent
of the total pollinator habitat for Graham's and White River
beardtongue, respectively, have been lost to road construction. Road
construction and paving projects occur infrequently, and we are not
aware of other road construction or maintenance projects that are
proposed to occur in areas where they would impact Graham's beardtongue
or White River beardtongue (Baldwin 2019, entire; Federal Highway
Administration (FHWA) 2020, entire; UDOT 2020, entire).
Herbivory
Invertebrates, wildlife, and livestock graze individuals of
Graham's and White River beardtongues (Sibul and Yates 2006, p. 9;
Dodge and Yates 2010, p. 9; 2011, pp. 9, 12; UNHP 2012, entire; 78 FR
47590, August 6, 2013; 79 FR 46042, August 6, 2014; Penstemon
Conservation Team 2015b, entire). Herbivory is primarily due to native
grazers rather than livestock (Penstemon Conservation Team 2019a, p.
8). Presumably, beardtongues are adapted to herbivory by native
grazers, which may explain why monitored populations continue to remain
stable despite occasional high levels of herbivory by native grazers.
Most of the Graham's and White River beardtongue populations (99
percent) occur within BLM livestock grazing allotments, except for
where the two species occur on private lands (Service 2021a, p. 55). As
part of the 2014 CA, the conservation team developed a livestock
grazing management plan (Penstemon Conservation Team 2015b, entire),
and BLM is monitoring and implementing corrective actions (Service
2021a, pp. 55-56). For example, following a heavy sheep grazing
incident at Raven Ridge in Colorado, BLM conducted a site visit with
the permittee, reviewed maps of avoidance areas for sheep trailing and
bedding, and repaired a fence at the Raven Ridge ACEC boundary. These
actions appear to be effective, and sheep grazing has not been detected
within the ACEC since 2014 (Service 2021a, p. 56).
Overall, herbivory and livestock grazing are not primary drivers of
the beardtongues' current and future condition. The best available
information does not indicate that future herbivory impacts would
result in any negative population-level impact to the beardtongues.
There is the potential for herbivory impacts to increase in populations
on non-Federal lands that may be impacted by energy development,
because herbivory from native grazers and livestock may increase where
available forage is reduced as a result of energy development (Service
2021b, pp. 38-39). We expect future herbivory impacts would be
addressed by land management actions and would not increase in
beardtongues' populations on Federal lands, where the BLM has committed
to take corrective actions. However, there is no commitment to take
corrective actions within beardtongue populations affected by
development on non-Federal lands if future herbivory impacts increase
(Service 2021b, pp. 38-39).
Invasive Weeds and Wildfire
Invasive weeds are present but not extensive across most of the
beardtongues' pollinator habitat, and the primary weed is cheatgrass.
Invasive weeds have the potential to negatively impact seedling
recruitment, plant abundance, and population trends of the beardtongues
and other native plants through competitive exclusion, niche
displacement, and changes in insect predation. Beardtongue populations
with high cheatgrass cover (i.e., introduced annual grasslands greater
than 20 percent of habitat area) may be at risk of an altered wildfire
regime (Link et al. 2006, p. 116). Based on our review of the existing
vegetation types, most beardtongue populations contain low amounts of
cheatgrass (less than 5 percent of habitat area), which is consistent
with monitoring reports for both species (Service 2021a, pp. 13-20, 57-
59; SWCA Environmental Consultants 2014, p. 16). We expect weed levels
to remain low in intact beardtongue occupied habitat and increase in
disturbed occupied habitat (Service 2021a, pp. 57-59; Service 2021a,
pp. 8-11, Appendix B). The effects of invasive weeds may increase in
populations that overlap with energy development (Service 2021b, p.
39). As part of the 2014 CA, the conservation team developed a weed
management plan. To date, BLM and Uintah County have surveyed for weeds
along roads in conservation areas, but no new occurrences of noxious
weed species have been detected (Penstemon Conservation Team 2017, p.
1; Penstemon Conservation Team 2018a, p. 1; Sheppard and Wheeler 2020,
p. 6).
The best available information does not provide evidence of an
altered wildfire regime within the beardtongues' ranges, although
decades of fire suppression have increased the risk of high severity,
stand-replacing wildfires (BLM 2008b, pp. 3-21). We also considered the
exposure and impacts of wildfire to the beardtongues. One recent
wildfire (Wolf Den Fire) occurred within the beardtongues' ranges.
Overall, the wildfire appeared to have a low or minor negative impact
to Graham's beardtongue, while White River beardtongue plants and
habitat were not affected (Brunson 2012, entire). To address wildfire,
the 2014 CA provides that the Penstemon Conservation Team will
coordinate with land managers regarding wildfire and post-wildfire
management activities and
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mitigation for impacts in conservation areas. For our analysis, we
assumed that wildfire frequency and extent in beardtongue populations
would generally not change from current levels over the next 10 years.
Small Population Size
Based on results of a PVA, for Graham's and White River
beardtongues, we consider small populations to be those that have
greater than 10 percent extinction risk (see Service 2021a, pp. 59-62).
This threshold is equivalent to Graham's beardtongue populations with
fewer than 67 plants and White River beardtongue populations with fewer
than 200 individuals. Graham's beardtongue has a lower threshold than
White River beardtongue because its populations were more stable over
the monitoring period that informed the PVA. Populations in this size
category are more prone to extinction from stochastic events than
larger populations based on their life-history characteristics and
stable demographic pattern (McCaffery 2013b, p. 1). We considered large
populations of Graham's and White River beardtongues to be those with
low (less than 5 percent) extinction risk, and medium populations to be
those with moderate (6-10 percent) extinction risk. Large populations
of Graham's beardtongue have more than 130 plants, and large White
River beardtongue populations have more than 370 plants (Service 2021a,
pp. 59-62; Service 2021a, p. 7, Appendix A). Graham's beardtongue has
12 small populations and 15 large populations distributed across its
range, and the small populations comprise less than one percent of all
known individuals. White River beardtongue has 6 small populations and
11 large populations distributed across its range, and the small
populations comprise less than one percent of all known individuals. As
part of the 2014 CA, the Penstemon Conservation Team developed
designated conservation areas to protect large populations of Graham's
and White River beardtongues as well as moderate and small populations
across both species' ranges to support population connectivity. While
not a primary driver of either species' current or future condition, we
considered the potential cumulative impacts of small population size
with other stressors in our analysis.
Climate Change
Climate change has the potential to impact Graham's and White River
beardtongues (78 FR 47590, August 6, 2013; 79 FR 46042, August 6,
2014). We do not have a clear understanding of how Graham's and White
River beardtongues have responded to precipitation changes, although
plant numbers have been documented as remaining fairly stable during
drought years. There is also no association between regional
precipitation patterns and population demographics for either species
(McCaffrey 2013a, p. 16). As part of the 2014 CA, BLM recently
installed weather monitoring equipment adjacent to eight monitoring
sites to collect local climate data in Range Units 1-5 (McCulley and
Hornbeck 2017, p. 2; Penstemon Conservation Team 2019a, p. 8; Sheppard
and Wheeler 2020, pp. 17-22). The data collected from weather
monitoring can be correlated with demography data to determine basic
species responses to climate patterns.
Because we are not aware of a downscaled climate model for the
range of Graham's and White River beardtongues, we used climate change
data from the Multivariate Adaptive Constructed Analogs (MACA) website.
We used two different emission scenarios, a stabilization emission
scenario using Representative Concentration Pathway (RCP) 4.5 and a
rising greenhouse gas emissions scenario using RPC 8.5 developed by the
Intergovernmental Panel on Climate Change. The results of our
``downscaled'' climate evaluation indicate future climate conditions
will be warmer in all seasons under both emission scenarios (Lindstrom
2019, entire). The difference in temperature increase between the two
scenarios is within 3.2 [deg]F through 2070. Precipitation for all
seasons is expected to increase under both scenarios. In order to
evaluate a more integrated measure of the combined effect of increased
temperature and precipitation levels, we considered a measure of
evaporative deficit instead of precipitation alone for our predictions
of drought conditions (Lindstrom 2019, entire), using the U.S.
Geological Survey (USGS) National Climate Change Viewer. Both scenarios
indicate the range of Graham's and White River beardtongues may be
drier in the future (through 2070) compared to historical conditions
(Service 2021b, pp. 40-41).
Overall, climate change presents substantial uncertainty regarding
the future environmental conditions in the range of Graham's and White
River beardtongues, but it may place an added stress on the species and
its habitat, particularly where other stressors are present. When we
considered characteristics that contribute to vulnerability to climate
change such as dispersal ability, highly specific habitat requirements,
and ability to shift distribution in response to environmental
conditions, Graham's and White River beardtongues would likely rank
moderate or high on the vulnerability index at the species level (Young
et al. 2012, pp. 133-139). Despite characteristics that make the two
species vulnerable to climate change, our climate evaluation is too
speculative to determine the severity of this stressor to Graham's and
White River beardtongues at the population level. Long-lived perennial
plants exhibit a range of drought and temperature sensitivities based
on physiological, morphological, and inherent genetic variability
(Warwell and Shaw 2017, p. 1205), which all contribute to a species'
tolerance (Hoover et al. 2015, pp. 7-11). Additional information
regarding each species' drought and temperature tolerance is needed for
us to be able to assess the species' responses to future climate
changes. For our analysis, we assumed that climate conditions would
generally not change over the next 10 years from current levels in
beardtongue populations, but may contribute to stronger effects of
herbivory and invasive weeds to all beardtongue populations. Over a
longer timeframe (through 2070), we expect temperatures and drought
conditions to increase, but there is substantial uncertainty regarding
their impact to the beardtongues.
Stressors Considered but Not Carried Forward
We considered the potential impacts from off-highway vehicle use,
disease, and collection. The best available information indicates that
these are low-level stressors and do not impact the beardtongues either
by themselves, or cumulatively with any other stressors (Service 2021a,
p. 63).
Summary of Factors Influencing Viability
Overall, we consider the primary drivers of the status of Graham's
beardtongue and White River beardtongue to be energy development and
the protections provided by the 2014 CA and other regulatory mechanisms
on Federal and State lands. Energy development activities, including
oil shale, tar sands, and traditional oil and gas, have collectively
had minimal impacts to both species to date but have the greatest
potential of the stressors we evaluated for future impacts. Other
stressors are not expected to have population- or species-level impacts
by themselves but may have the potential for cumulative
[[Page 2119]]
impacts on the species when considered together with energy development
and other stressors. The protections provided by the 2014 CA and other
regulatory mechanisms are expected to reduce the negative effect of
energy development on the beardtongues' population resiliency.
Summary of Current Condition
In our Biological Report of current condition (Service 2021a,
entire), we describe Graham's and White River beardtongues' viability
by characterizing their current condition in terms of the 3Rs. We
evaluate resiliency at the population level, and redundancy and
representation at the species level. This analysis is described in
detail in the Biological Report (Service 2021a, entire), and is briefly
summarized here.
We evaluated the current resiliency of each beardtongue population
by scoring relevant demographic (population size) and habitat factors
for the species for which information is available (Service 2021a, pp.
66-70). For population size, we incorporated two factors, population
extinction risk (based on a PVA) and the presence of high-density
clusters of plants within populations, into our calculation. For
habitat, we incorporated three factors, pollinator habitat quality
(measured as percent nonnative plant cover), pollinator habitat area,
and pollinator habitat loss, into our calculation. We included
pollinator habitat area because this factor is associated with plant
abundance and biodiversity (Krauss et al. 2004, entire) and may change
in a predictable way to estimate future population size. Each
population's overall resiliency score is the average of all individual
factor scores, which translates to an overall current condition
category of low, moderate, or good.
Graham's Beardtongue
Fourteen Graham's beardtongue populations are in good current
condition (i.e., the most resilient) due to their large population size
and habitat quality ranks (Service 2021a, pp. 68-69). These factors
likely provide Graham's beardtongue the ability to withstand stochastic
events such as drought or wildfire. The remaining 13 populations are in
moderate condition based on the habitat and demographic factors
contributing to resiliency (Service 2021a, pp. 68-69). The moderate
condition of these populations may result in a lower ability to
withstand stochastic events than the populations in good condition. The
low levels of habitat loss to date have not changed the overall current
condition of any population. Only one population (population 11) had a
reduction in the overall condition because of higher weed presence; the
remaining populations retain the same condition as they did
historically (Service 2021a, pp. 68-69).
Unlike many other narrow endemic species, the redundancy of
Graham's beardtongue is quite high despite its limited geographical
range. The species' 27 populations are spread across the Uinta Basin on
different topographic features, which likely provides the ability to
withstand more localized catastrophic events (e.g., wildfire), and may
provide a limited ability to withstand rangewide catastrophic events
(e.g., drought) (Service 2021a, pp. 70-72). Maintaining redundancy to
reduce the risk from catastrophic events is dependent upon maintaining
sufficiently resilient populations of Graham's beardtongue in
topographically diverse habitat conditions.
We do not have meaningful information on the genetic diversity of
Graham's beardtongue. Therefore, we considered other types of
representative diversity, such as population size and ecological
settings, that could indicate some ability to adapt to change within
the species' range (Service 2021a, pp. 72-77). Graham's beardtongue has
15 large populations distributed across its range with at least 1 large
population within each of the five range units. There are three medium
populations within the two western-most range units; the remaining nine
populations are small. We assume the 15 large populations contain the
majority of genetic variation within the total population because they
contain 99.5 percent of all individuals (Service 2021a, p. 73).
Graham's beardtongue populations and metapopulations occur in a high
diversity of ecological settings, suggesting a high level of genetic
variation within each range unit (Service 2021a, p. 76). In addition,
the species exhibits a gradient of morphological and phenological
differences across its range. Preserving the species' representation
requires maintaining medium and large populations, connectivity between
populations, and a diversity of ecological settings across its range.
The current distribution is the same as the historical distribution,
and the best available information does not indicate that a reduction
in genetic diversity or connectivity among populations has occurred.
Overall, Graham's beardtongue exhibits high levels of resiliency,
redundancy, and representation that have allowed populations to persist
throughout the species' range. The species contains a high number of
populations in good or moderate condition, and levels of redundancy and
representation are similar to its historical condition. Graham's
beardtongue is stable despite localized weed encroachment and some loss
of occupied habitat and pollinator habitat. The current condition of
Graham's beardtongue populations is a direct result of the low levels
of habitat loss and degradation to date and habitat protections
afforded to the species under the 2014 CA. For further explanation of
our analysis of the current condition of Graham's beardtongue, see our
Biological Report (Service 2021a, pp. 63-80).
White River Beardtongue
Seven White River beardtongue populations are in good current
condition (i.e., the most resilient) due to their large population size
and habitat factors (Service 2021a, pp. 68-70). These factors likely
provide White River beardtongue the ability to withstand stochastic
events such as drought or wildfire. There are nine populations in
moderate condition based on the habitat factors (habitat area and
quality) contributing to resiliency (Service 2021a, pp. 68-70). The
moderate condition of these populations may result in a lower ability
to withstand stochastic events compared to populations in good
condition. One population (Population 8) is in low condition and is the
least likely to withstand stochastic events (Service 2021a, pp. 68-70).
The low overall level of pollinator habitat loss for all
populations to date does not change the overall current condition of
any population because habitat loss does not exceed the low habitat
loss condition threshold of five percent habitat loss, and effects to
populations remain small and localized. Two populations (Populations 8
and 13) had a reduction in their overall condition because of higher
weed presence; the remaining 15 populations retain the same condition
as they did historically (Service 2021a, pp. 68-70).
Unlike many other narrow endemic species, the redundancy of White
River beardtongue is fairly high despite its limited geographical range
(Service 2021a, pp. 70-72). The species includes 17 populations spread
across the Uinta Basin on different topographic features, which likely
provides the ability to withstand more localized catastrophic events
(e.g., wildfire) and may provide a limited ability to withstand
rangewide catastrophic events (e.g., drought).
[[Page 2120]]
Maintaining redundancy to reduce the risk of catastrophic events is
dependent upon maintaining sufficiently resilient populations of White
River beardtongue in topographically diverse habitat conditions.
We considered population size and ecological settings that could
indicate some ability to adapt to change within the species' range
(Service 2021a, pp. 72-77). White River beardtongue has 11 large
populations distributed across its range with at least 1 large
population within each of the five range units. The remaining six
populations are small. We assume these 11 large populations contain the
majority of genetic variation within the total population, because they
contain 99.7 percent of all individuals (Service 2021a, p. 76). There
is a high diversity of ecological settings within White River
beardtongue metapopulations, suggesting a high level of genetic
variation within each range unit. One White River beardtongue range
unit has a distinctly different composition of vegetation types than
the other range units, which we consider a different ecological setting
for the species (Service 2021a, p. 76). We assume this is an indication
that this range unit has a slightly different genetic composition than
the other range units. The preliminary genetic information and opinions
from our expert panel support this assumption (Stevens 2019,
attachments a, b, c; Service 2017a, p. 4). Preserving the species'
representation requires maintaining large populations, connectivity
between populations, and a diversity of ecological settings across its
range. The current distribution is the same as the historical
distribution, and the best available information does not indicate that
a reduction in genetic diversity or connectivity among populations has
occurred.
Overall, White River beardtongue exhibits high levels of
resiliency, redundancy, and representation, which have allowed
populations to persist throughout the species' range. The species
contains a high number of populations in good or moderate condition,
and levels of redundancy and representation are similar to its
historical condition. White River beardtongue is stable despite
localized weed encroachment and some loss of pollinator habitat. The
current condition of White River beardtongue populations is a direct
result of the low levels of habitat loss and degradation to date and
habitat protections afforded to the species under the 2014 CA. For
further explanation of our analysis of the current condition of White
River beardtongue, see our Biological Report (Service 2021a, pp. 63-
80).
Summary of Future Condition
Using the 3Rs, we evaluated the future viability of the
beardtongues based on the presence of multiple (redundancy), self-
sustaining (resiliency) populations distributed across the range of the
species, and their contributions to adaptive capacity (representation)
in the face of changing environmental conditions. We relied on our
characterization of each species' current condition, stressors, and
effects of stressors as the baseline from which to evaluate future
changes to those factors considered important to the beardtongues
(Service 2021a, entire). Our analysis of the projected future condition
of Graham's and White River beardtongues is described in detail in our
Biological Report of future condition (Service 2021b, entire), and is
briefly summarized here.
Based on input received from Federal and State agencies, private
industry, and the best available information, we developed two
plausible future scenarios--moderate and high energy development
(Service 2021b, pp. 48-56). We used reliable projections of future
events and the future locations of stressors based on the best
available information and expert opinion. Published literature
evaluates energy development at a coarser scale (e.g., the Uintah
Basin, State of Utah, or county-level) than what we needed for our
analysis within the beardtongues' ranges. Therefore, we relied on
expert opinion to evaluate energy development specifically within the
ranges of the two species and assign likelihoods to future exploration
and development activities (Service 2021b, pp. 12, 13).
Based on this information, our two scenarios considered impacts to
the beardtongues through 2030, because we have sufficient information
to project out to 10 years for energy development (oil shale, tar
sands, and oil and gas development), which is the primary future
stressor for the beardtongues (Service 2021b, p. 49). Beyond 10 years,
there is too much uncertainty about the fluctuating market price of oil
and gas, the possibility of future technological advances that could
lower extraction costs and favor certain industries, and the results of
planned oil exploration to project the level or distribution of energy
development within the beardtongues' populations and ranges, such that
projections would become speculative (Service 2019, entire; Service
2020, entire). Expert panel likelihood estimates and the best available
information from published literature and technical reports informed
our 10-year energy development (oil shale, tar sands, and oil and gas
development) projection timeframe. Our 10-year energy development
timeframe is generally consistent with long-term economic forecasts for
oil shale, tar sands, and traditional oil and gas that are based on the
market price of oil and natural gas (Service 2021b, pp. 17, 25, 33,
34). In addition, future oil exploration and development within the
beardtongues' ranges will depend of the results of planned exploration
within Uintah County (Service 2021b, pp. 32--35). We note that we do
have certainty through 2034 that the protections of the 2014 CA will
remain in place, which will limit where energy development could occur.
For more information on how these projection timeframes relate to our
evaluation of the ``foreseeable future'', see Consideration of
Foreseeable Future below.
In the locations where energy stressors occurred for the two
scenarios, our analysis included the following assumptions: Commercial
development activities for oil shale and tar sands will occur in the
next 10 years on non-Federal (private and state) lands within each
forecast; and a total loss of plants and habitat will occur where oil
shale and tar sands development are projected (Service 2021b, pp. 15-
31; 49-56). These assumptions allowed us to evaluate potential worst-
case impacts from energy development in combination with other
stressors, to bracket the full range of impacts to the beardtongues
that may occur, because actual future impacts may range anywhere from
their current condition to the future scenarios evaluated here, or may
fall in between. We did not develop a scenario that considered
``exploration-only'' activities for oil shale and tar sands, with a
smaller surface disturbance extent, even though this would also be a
plausible future forecast for oil shale and tar sands, because the
impacts under an exploration-only scenario would fall in between the
current condition and the energy development scenarios we developed.
Our evaluation of effects from energy development accounted for the
protections afforded to the beardtongues from the 2014 CA that are in
place through 2034.
For the two future scenarios, we forecasted the species' biological
condition based on conservation efforts and the following stressors:
Oil shale, tar sands, and traditional oil and gas exploration and
development activities; road construction and maintenance; herbivory;
invasive weeds; small
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population size; and climate change. Our future scenarios varied based
on two forecasts for oil shale (moderate, high). For each of the other
stressors (tar sands, traditional oil and gas, road construction and
maintenance, herbivory, invasive weeds, small population size, and
climate change) we developed only one future forecast (these forecasts
were used in both future scenarios) because their future, plausible
extents are not expected to vary much within the beardtongues' ranges
independent of the oil shale stressor (Service 2021b, pp. 49-56).
In the moderate energy development scenario (Scenario 1), we
projected that oil shale exploration and commercial development would
occur on lands identified as having a high potential for both
activities (Service 2021b, pp. 49-52). The effects of herbivory and
invasive weeds may increase in populations that overlap with energy
development. Climate change may increase the effects from herbivory and
invasive weeds to all beardtongue populations. In the high energy
development scenario (Scenario 2), we projected that oil shale
exploration and commercial development would occur over a larger area
that included the same lands as the moderate scenario, plus other lands
identified as likely or about as likely as not to support these
activities (Service 2021b, pp. 52-55). The potential effects of the
other stressors to all beardtongue populations remained the same as
evaluated for the moderate energy development scenario.
Under each of these future scenarios, we assessed future resiliency
by evaluating relevant habitat and demographic factors to calculate an
overall condition score for each plant population. We evaluated
population size, habitat area, habitat quality, and habitat loss to
project the future resiliency of each population. Based on the results
of these evaluations, we rated population condition as good, moderate,
low, or extirpated. To assess future redundancy, we evaluated the
projected number and distribution of populations within the species'
range relative to the current condition. To assess future
representation, we evaluated the projected demographic (population
size) and ecological (ecological settings) surrogates of genetic
diversity relative to the current condition. For more detailed
information on our methodology for evaluating future conditions, see
the Biological Report (Service 2021b, pp. 49-56).
Graham's Beardtongue
Under the moderate energy development scenario, oil shale and
traditional oil and gas are the main stressors for Graham's
beardtongue, and these stressors are projected to result in loss of
individual plants and habitat in the center of the species' range
(Service 2021b, Figure 11, pp. 50, 56). In this scenario, there is a
projected loss of 34 percent of the total number of plants from energy
development, with a remaining total population size of 37,350
individuals in 24 populations (Service 2021b, p. 57). Remaining
occupied habitat and pollinator habitat are projected to be 7,642 ac
(3,093 ha) and 72,455 ac (29,321 ha), respectively. The main stressors
result in the extirpation of three populations and a decline in the
condition of four populations compared to their current condition. The
current population condition is maintained in the other 20 populations.
The species continues to occupy the extent of its current range, and
all five range units continue to support populations in good or
moderate condition. Fourteen populations in good and moderate condition
are large in size and have a low extinction risk (Service 2021b, pp.
57-58).
Despite the extirpation of some populations under the moderate
energy development scenario, levels of redundancy remain high, with
Graham's beardtongue maintaining 24 populations (Service 2021b, p. 60).
Our evaluation of representation under this scenario indicates that
Graham's beardtongue maintains a level of ecological diversity within
the 24 remaining populations that is similar to its current condition
and should have the adaptive capacity to tolerate projected, future
climate and habitat conditions (Service 2021b, p. 60). The best
available information does not indicate that the projected loss of the
three Graham's beardtongue populations and projected plant loss in
other populations would result in significant impacts to Graham's
beardtongue's representation.
Under the high energy development scenario, the main stressors
remain the same for Graham's beardtongue, but oil shale impacts result
in more extensive plant and habitat loss in the center of the species'
range than in the moderate energy development scenario (Service 2021b,
Figure 13, pp. 53, 60-62). In this scenario, there is a projected loss
of 45 percent of the total number of plants from energy development,
with a remaining total population size of 30,794 individuals in 24
populations. Remaining occupied habitat and pollinator habitat are
projected to be 6,037 ac (2,443 ha) and 63,580 ac (25,730 ha),
respectively. The main stressors result in the extirpation of three
populations and a decline in the condition of six populations compared
to their current condition. The current population condition is
maintained in the other 18 populations. Fourteen populations in good
and moderate condition are large in size and have a low extinction
risk. The species continues to occupy the extent of its current range,
and all five range units continue to support populations in good or
moderate condition (Service 2021b, pp. 60-62).
Despite the extirpation of populations, levels of redundancy remain
high with Graham's beardtongue maintaining 24 populations (Service
2021b, p. 64). Our evaluation of representation indicates that Graham's
beardtongue maintains a level of ecological diversity within the 24
remaining populations that is similar to its current condition and
should have the adaptive capacity to tolerate future climate and
habitat conditions (Service 2021b, p. 64). The best available
information does not indicate that the projected loss of the three
Graham's beardtongue populations and projected plant loss in other
populations would result in significant impacts to Graham's
beardtongues' representation.
White River Beardtongue
Under the moderate energy development scenario, oil shale is the
main stressor for White River beardtongue, and this stressor is
projected to result in loss of individual plants and habitat in the
center of the species' range (Service 2021b, Figure 12, pp. 51, 57-59).
In this scenario, there is a projected loss of 1 percent of the total
number of plants from energy development, with a remaining total
population size of 29,686 individuals in 16 remaining populations.
Remaining occupied habitat and pollinator habitat are projected to be
3,218 ac (1,302 ha) and 26,959 ac (10,910 ha), respectively (Service
2021b, pp. 57-59). The main stressor results in the extirpation of one
population and a decline in the condition of one population compared to
their current condition. The current population condition is maintained
in the other 15 populations. The species continues to occupy the extent
of its current range, and all five range units continue to support
populations in good or moderate condition. Eleven populations in good
and moderate condition are large in size and have a low extinction risk
(Service 2021b, pp. 57-59).
Despite the extirpation of one population under the moderate energy
development scenario, levels of redundancy remain high with White
[[Page 2122]]
River beardtongue maintaining 16 populations (Service 2021b, p. 60).
Our evaluation of representation indicates that White River beardtongue
maintains a level of ecological diversity within the 16 remaining
populations that is similar to its current condition and should have
the adaptive capacity to tolerate future climate and habitat conditions
(Service 2021b, p. 60). The best available information does not
indicate that the projected loss of the one White River beardtongue
population and projected plant loss in other populations would result
in significant impacts to White River beardtongue's representation.
Under the high energy development scenario, the main stressor
remains the same for White River beardtongue, but oil shale impacts
result in more extensive plant and habitat loss in the center of the
species' range than in the moderate energy development scenario
(Service 2021b, Figure 14, pp. 54, 61-63). In this scenario, there is a
projected loss of 24 percent of the total population from energy
development, with a remaining total population size of 22,695
individuals in 15 populations. Remaining occupied habitat and
pollinator habitat are projected to be 2,317 ac (938 ha) and 20,099 ac
(8,134 ha), respectively (Service 2021b, pp. 61-63). The main stressor
results in the extirpation of two populations and a decline in the
condition of two populations compared to their current condition. The
current population condition is maintained in the other 13 populations.
Nine populations in good and moderate condition are large in size and
have a low extinction risk. The species continues to occupy the extent
of its current range, and all five range units continue to support
populations in good or moderate condition (Service 2021b, pp. 61-63).
Despite the extirpation of populations, levels of redundancy remain
high with White River beardtongue maintaining 15 populations (Service
2021b, p. 64). Our evaluation of representation indicates that White
River beardtongue maintains a level of ecological diversity within the
15 remaining populations that is similar to its current condition and
should have the adaptive capacity to tolerate future climate and
habitat conditions (Service 2021b, p. 64). The best available
information does not indicate that the projected loss of the two White
River beardtongue populations and projected plant loss in other
populations would result in significant impacts to White River
beardtongue's representation.
The 2014 CA provides protections for the beardtongues on Federal
and State lands until 2034. During this time, the beardtongues are
afforded the same level of protections on Federal and State lands
within designated conservation areas. The 2014 CA identifies 42,993 ac
(17,399 ha) of designated conservation areas that protect 41 percent of
the Graham's beardtongue population in 13 populations, and 66 percent
of the White River beardtongue population in 11 populations (Service
2021b, pp. 43-46). Within designated conservation areas, protections
include an avoidance buffer of 300 ft (91.4 m) between disturbance and
beardtongue plants, as well as surface disturbance caps to restrict
development. Surface disturbance caps would allow a limited amount of
new construction for roads and traditional oil and gas development but
would prohibit future oil shale and tar sand exploration and
development (Service 2021b, pp. 43-46).
The beardtongues are also afforded protections on Federal lands
outside of designated conservation areas, including a 300-ft (91.4-m)
avoidance buffer, surface disturbance restrictions on steep slopes,
areas that are unavailable for leasing or have NSO stipulations, and
designated ACECs (Service 2021b, pp. 47-48). In total, the 2014 CA
designated conservation areas and other conservation measures on
Federal lands provide protections to 51 percent and 76 percent of the
Graham's beardtongue and White River beardtongue total population,
respectively (Service 2021b, p. 48).
Determination of Species Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines an endangered species as a species
that is ``in danger of extinction throughout all or a significant
portion of its range,'' and a threatened species as a species that is
``likely to become an endangered species within the foreseeable future
throughout all or a significant portion of its range.'' The Act
requires that we determine whether a species meets the definition of
endangered species or threatened species because of any of the
following five factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
Since the publication of the August 6, 2013, proposed listing rule
(78 FR 47590), and the subsequent reinstatement of that proposed rule
following litigation, we prepared a comprehensive assessment of the
current and future status of Graham's beardtongue and White River
beardtongue as presented in the Biological Reports (Service 2021a,
entire; 2021b, entire). The Biological Reports reexamined the threats
identified in the 2013 proposed listing rule (energy exploration and
development, as well as the cumulative impacts of livestock grazing,
invasive weeds, small populations sizes, and climate change) using
concepts from the Service's SSA framework (Service 2016, entire; Smith
et al. 2018, entire). The Biological Reports also incorporate new
information into our analysis that has become available since 2013,
including updated monitoring information and the final 2014 CA and its
2018 addendum.
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
to Graham's and White River beardtongues, including: Energy exploration
and development: Oil shale, tar sands, and traditional oil and gas
drilling (Factor A); road construction (Factor A); herbivory (Factor
C); invasive weeds (Factor A); small population size (Factor E); and
climate change (Factors A and E). We also evaluated how existing
regulatory mechanisms (Factor D) and other conservation measures
(primarily the 2014 CA and 2018 addendum) may lessen the impacts of
these stressors. The best available information does not indicate that
overutilization (Factor B) is a threat to either beardtongue species.
Consideration of Cumulative Effects
Threats can work in concert with one another to cumulatively create
conditions that may impact the Graham's and White River beardtongues or
their habitat beyond the scope of each individual threat. We note that
by using concepts from the SSA framework to guide our analysis of the
scientific information documented in the Biological Reports, we have
not only analyzed individual effects on the species, but we have also
analyzed their potential cumulative effects. We incorporate the
cumulative effects into our analysis when we characterize the current
and future condition of the species. To assess the current and future
condition of the species, we undertake an iterative analysis that
encompasses and incorporates the threats individually and then
accumulates and evaluates the effects of all the factors
[[Page 2123]]
that may be influencing the species, including threats and conservation
efforts. Because our analysis considers not just the presence of the
factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative effects analysis.
Consideration of Foreseeable Future
In considering the foreseeable future for Graham's beardtongue and
White River beardtongue, we considered the available data regarding the
factors that may influence both species into the future, including
stressors, and conservation efforts or regulatory mechanisms that may
provide protections. The primary driver of both species' condition into
the future is energy development. We are able to make reliable
predictions about the range of plausible future impacts of oil shale,
tar sands, and traditional oil and gas through approximately 2030.
Beyond 2030, based on input from experts, the impacts of energy
development become too speculative to predict. Other stressors,
including roads, livestock grazing, invasive weeds, and small
population size, exert a cumulative effect on the beardtongues where
they occur with energy development, and, therefore, we are similarly
able to reliably predict their impacts on the species through
approximately 2030. Climate change has the potential to exacerbate the
effect of other stressors, including livestock grazing and invasive
weeds, where they are present on the landscape. We have information on
climate change, including projected changes in temperature,
precipitation, and evaporative deficit out to 2070. However, we are not
able to make reliable predictions about the species' responses to these
changes out to 2070, since the species' expected responses to these
variables are uncertain, and will depend on the presence and impacts of
other stressors.
We also have information on various timescales to make reliable
predictions about future protections that may be in place for both
Graham's and White River beardtongues. The 2014 CA provides protections
through designated conservation areas on Federal and State lands
through 2034. Regulatory mechanisms are in place to provide for the
State conservation areas (Utah Code 53C-2-202 and Utah Administrative
Code R850-150) through 2034. Federal regulatory mechanisms, including a
BLM sensitive species designation, and BLM RMP designations and
stipulations, provide protections for the species through at least
2038. The 2014 CA conservation areas on private lands are expected to
expire sooner, in 2029. A Uintah County Ordinance that provides for
those areas also expires in 2029. Therefore, we did not include these
private land conservation areas in our analysis of future conditions.
Overall, the primary drivers of the future status of Graham's
beardtongue and White River beardtongue are energy development and the
protections provided by the 2014 CA and other regulatory mechanisms on
Federal and State lands. We have information to make reliable
predictions about these factors, and the species' responses to them,
through: 2030 for the threat of energy development, 2034 for the
protections of the 2014 CA on Federal and State conservation areas, and
2038 for regulatory mechanisms on BLM lands. Therefore, the foreseeable
future for this determination ranges from approximately 2030 to 2034,
for the stressors and 2014 CA protections included in our future
scenarios, to approximately 2038 for BLM regulatory mechanisms.
Graham's Beardtongue: Determination of Status Throughout All of Its
Range
Our evaluation of the current condition of Graham's beardtongue
found that there are currently tens of thousands of individual plants
distributed across many populations that have good or moderate
resilience to stochastic events. The species currently has a sufficient
level of redundancy and representation to withstand catastrophic events
and adapt to changes, with populations distributed across five range
units. While some stressors have impacted individuals in localized
areas, none are currently having population-level impacts individually
or cumulatively. Therefore, we find that the species is not in danger
of extinction throughout all of its range.
Our evaluation of the projected future condition of Graham's
beardtongue found that there is very high uncertainty about the future
likelihood of oil shale development. The future condition of Graham's
beardtongue in 2030 may range anywhere from its current condition to
the impacts projected in the high energy development scenario. However,
the impacts projected under the high energy development scenario
represent a worst-case scenario, which we expect is less likely to
occur than the impacts projected under the moderate energy development
scenario, or a continuation of current conditions. Although unlikely,
even if we assume the high energy development scenario were to occur,
the impacts of the stressors on Graham's beardtongue would be limited
to three range units. Those three impacted range units would still have
several populations in good or moderate condition, and over 30,000
individual plants would remain. In this scenario, Graham's beardtongue
would also retain over 6,000 ac (2,428 ha) of occupied habitat and
63,000 ac (25,495 ha) of pollinator habitat. The 2014 CA would cap the
total level of habitat that could be impacted within the foreseeable
future. Therefore, even in this worst-case scenario, we anticipate that
Graham's beardtongue would retain sufficient levels of resiliency,
redundancy, and representation in the foreseeable future. Thus, after
assessing the best available information, we conclude that the Graham's
beardtongue is not in danger of extinction throughout all of its range
nor is it likely to become so in the foreseeable future.
Graham's Beardtongue: Determination of Status Throughout a Significant
Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. Having determined that the Graham's beardtongue is not in
danger of extinction or likely to become so in the foreseeable future
throughout all of its range, we now consider whether it may be in
danger of extinction or likely to become so in the foreseeable future
in a significant portion of its range--that is, whether there is any
portion of the species' range for which it is true that both (1) the
portion is significant; and (2) the species is in danger of extinction
now or likely to become so in the foreseeable future in that portion.
Depending on the case, it might be more efficient for us to address the
``significance'' question or the ``status'' question first. We can
choose to address either question first. Regardless of which question
we address first, if we reach a negative answer with respect to the
first question that we address, we do not need to evaluate the other
question for that portion of the species' range.
In undertaking this analysis for the Graham's beardtongue, we
choose to address the status question first--we consider information
pertaining to the geographic distribution of both the species and the
threats that the species faces to identify any portions of the range
where the species is endangered or threatened. For the Graham's
beardtongue, we considered whether the threats are geographically
concentrated in any portion of the species' range at a biologically
meaningful scale. We
[[Page 2124]]
examined the following threats: Energy development (oil shale, tar
sands, and traditional oil and gas drilling) and the additional
cumulative impacts of road construction, herbivory, invasive weeds,
small population size, and climate change with energy development
(Service 2021a, entire; 2021b, entire). We acknowledge that there are
three range units (Units 2, 3, and 4) with potentially greater levels
of impacts projected from oil shale in the foreseeable future, although
the worst-case impacts of the high energy development scenario are less
likely to occur than the impacts under the moderate energy development
scenario or a continuation of current conditions. However, even if
these worst-case projected impacts were to occur in Range Units 2, 3,
and 4, several populations would remain in good or moderate condition
in Range Units 2 and 3, and the one population in Range Unit 4 would
remain in good condition. Based on the resiliency of these remaining
populations, and their spread across these range units, we expect that
adequate levels of resiliency, redundancy, and representation would
remain in these units to protect again stochastic and catastrophic
events and to adapt to future changes, and so, this portion of the
range would not meet the definition of endangered or threatened.
Therefore, no portion of the species' range can provide a basis for
determining that the species is in danger of extinction now or likely
to become so in the foreseeable future in a significant portion of its
range, and we find the species is not in danger of extinction now or
likely to become so in the foreseeable future in any significant
portion of its range. This is consistent with the courts' holdings in
Desert Survivors v. Department of the Interior, No. 16-cv-01165-JCS,
2018 WL 4053447 (N.D. Cal. Aug. 24, 2018) and Center for Biological
Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 2017).
White River Beardtongue: Determination of Status Throughout All of Its
Range
Our evaluation of the current condition of White River beardtongue
found that there are currently nearly 30,000 individual plants
distributed across many populations that have good or moderate
resilience to stochastic events. The species currently has a sufficient
level of redundancy and representation to withstand catastrophic events
and adapt to changes, with populations distributed across five range
units. In addition, the recent discovery of a new population in the
Book Cliffs has expanded the species' known range. While some stressors
have impacted individuals and habitat in localized areas, none are
currently having population-level impacts. Therefore, we find that the
species is not in danger of extinction throughout all of its range.
Our evaluation of the projected future condition of White River
beardtongue found that there is very high uncertainty around the future
of oil shale development. The future condition of White River
beardtongue in 2030 may range anywhere from its current condition, to
the impacts projected in the high energy development scenario. However,
the impacts projected under the high energy development scenario
represent a worst-case scenario, which we expect is less likely to
occur than the impacts projected under the moderate energy development
scenario, or a continuation of current conditions. Although unlikely,
even if we assume the high energy development scenario were to occur,
the impacts of the stressors on White River beardtongue are projected
to be limited. Under this worst-case scenario, we expect that White
River beardtongue would retain over 75 percent of individual plants and
maintain the resiliency of the large populations. The 2014 CA is
expected to protect the majority (66 percent) of plants across 11
populations into the foreseeable future. We also expect sufficient
levels of redundancy and representation to remain across the range
units, even though 2 out of 17 populations could be lost. Therefore,
even in this worst-case scenario, we anticipate that White River
beardtongue would retain sufficient levels of resiliency, redundancy,
and representation in the foreseeable future. Thus, after assessing the
best available information, we conclude that White River beardtongue is
not in danger of extinction throughout all of its range nor is it
likely to become so in the foreseeable future.
White River Beardtongue: Determination of Status Throughout a
Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. Having determined that the White River beardtongue is not in
danger of extinction or likely to become so in the foreseeable future
throughout all of its range, we now consider whether it may be in
danger of extinction or likely to become so in the foreseeable future
in a significant portion of its range--that is, whether there is any
portion of the species' range for which it is true that both (1) the
portion is significant; and (2) the species is in danger of extinction
now or likely to become so in the foreseeable future in that portion.
Depending on the case, it might be more efficient for us to address the
``significance'' question or the ``status'' question first. We can
choose to address either question first. Regardless of which question
we address first, if we reach a negative answer with respect to the
first question that we address, we do not need to evaluate the other
question for that portion of the species' range.
In undertaking this analysis for the White River beardtongue, we
choose to address the status question first--we consider information
pertaining to the geographic distribution of both the species and the
threats that the species faces to identify any portions of the range
where the species is endangered or threatened. For the White River
beardtongue, we considered whether the stressors are geographically
concentrated in any portion of the species' range at a biologically
meaningful scale. We examined the following stressors: Energy
development (oil shale, tar sands, and traditional oil and gas
drilling) and the additional cumulative impacts of road construction,
herbivory, invasive weeds, small population size, and climate change
with energy development (Service 2021a, entire; 2021b, entire). All of
these potential stressors are relatively evenly distributed
geographically throughout the range of the White River beardtongue. Our
analysis projected that small areas of disturbance will occur within
most range units but are expected to be spread throughout the range. We
found no concentration of stressors in any portion of the White River
beardtongue's range at a biologically meaningful scale. Therefore, no
portion of the species' range can provide a basis for determining that
the species is in danger of extinction now or likely to become so in
the foreseeable future in a significant portion of its range, and we
find the species is not in danger of extinction now or likely to become
so in the foreseeable future in any significant portion of its range.
This is consistent with the courts' holdings in Desert Survivors v.
Department of the Interior, No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D.
Cal. Aug. 24, 2018), and Center for Biological Diversity v. Jewell, 248
F. Supp. 3d 946, 959 (D. Ariz. 2017).
Determination of Status
We have reviewed the best available scientific and commercial
information
[[Page 2125]]
regarding the past, present, and future threats to the Graham's
beardtongue and White River beardtongue, and we have determined that
these species do not meet the definition of an ``endangered species''
or a ``threatened species'' in accordance with sections 3(6) and 3(20)
of the Act. Because of this determination, we are withdrawing our
August 6, 2013, proposed rule to list the Graham's beardtongue and
White River beardtongue as threatened species (78 FR 47590).
Accordingly, we are also withdrawing our August 6, 2013, proposed rule
to designate critical habitat for the species (78 FR 47832).
References Cited
A complete list of references cited in this document and the
Graham's and White River beardtongues Biological Reports are available
on the internet at https://www.regulations.gov at Docket No. FWS-R6-ES-
2019-0029 and upon request from the Utah Ecological Services Office
(see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this document are the staff members of the
Utah Ecological Services Office and the Mountain-Prairie Regional
Office.
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-00485 Filed 1-12-22; 8:45 am]
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