[Federal Register Volume 75, Number 120 (Wednesday, June 23, 2010)]
[Proposed Rules]
[Pages 35721-35746]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-15251]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R6-ES-2010-0015]
[MO 92210-0-0008-B2]
RIN 1018-AV83
Endangered and Threatened Wildlife and Plants; Listing Ipomopsis
polyantha (Pagosa Skyrocket) as Endangered Throughout Its Range, and
Listing Penstemon debilis (Parachute Beardtongue) and Phacelia
submutica (DeBeque Phacelia) as Threatened Throughout Their Range
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list Ipomopsis polyantha (Pagosa skyrocket), a plant species from
southwestern Colorado, as endangered throughout its range, and
Penstemon debilis (Parachute beardtongue) and Phacelia submutica
(DeBeque phacelia), two plant species from western Colorado, as
threatened throughout their ranges under the Endangered Species Act of
1973, as amended (Act). This proposal, if made final, would extend the
Act's protections to these species throughout their ranges. The Service
seeks data and comments from the public on this proposal.
DATES: We will consider comments received or postmarked on or before
August 23, 2010. We must receive requests for public hearings, in
writing, at the address shown in the FOR FURTHER INFORMATION CONTACT
section by August 9, 2010.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments on Docket No. FWS-R6-
ES-2010-0015.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: [FWS-R6-ES-2010-0015]; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222, Arlington, VA 22203.
We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Public Comments section below for more information).
FOR FURTHER INFORMATION CONTACT: Patty Gelatt, Acting Western Colorado
Supervisor, U.S. Fish and Wildlife Service, Ecological Services Field
Office, 764 Horizon Drive, Building B, Grand Junction, CO 81506-3946;
telephone 970-243-2778, extension 26; fax 970-245-6933. If you use a
telecommunications device for the deaf (TDD), call the Federal
Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from the public, other government agencies, the
scientific community, industry, or any other interested party
concerning this proposed rule. We particularly seek comments
concerning:
(1) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to these species and regulations that may
be addressing those threats;
(2) Additional information concerning the range, distribution, and
population sizes of these species, including the locations of any
additional occurrences of these species;
(3) Any information on the biological or ecological requirements of
these species;
(4) Current or planned activities in the areas occupied by these
species and possible impacts of these activities on these species;
(5) Which areas would be appropriate as critical habitat for these
species and why they should be proposed for designation as critical
habitat; and
(6) The reasons why areas should or should not be designated as
critical habitat as provided by section 4 of the Act (16 U.S.C. 1531 et
seq.), including whether the benefits of designation would outweigh
threats to these species that designation could cause, such that the
designation of critical habitat is prudent.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in the ADDRESSES section. We will not
consider comments sent by e-mail or fax or to an address not listed in
the ADDRESSES section.
We will post your entire comment--including your personal
identifying information--on http://www.regulations.gov. If you provide
personal identifying information in your hardcopy comments, you may
request at the top of your document that we withhold this information
from public review. However, we cannot guarantee that we will be able
to do so. We will
[[Page 35722]]
post all hardcopy comments on http://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Western Colorado Ecological Services Field Office
(see FOR FURTHER INFORMATION CONTACT section).
Final promulgation of the regulations concerning the listing of
these species will take into consideration all comments and additional
information that we receive, and may lead to a final regulation that
differs from this proposal.
Species Information and Factors Affecting the Species
Section 4 of the Act (16 U.S.C. 1533) and implementing regulations
(50 CFR 424) set forth the procedures for adding species to the Federal
Lists of Endangered and Threatened Wildlife and Plants. Under section
4(a)(1) of the Act, a species may be determined to be endangered or
threatened based on any of the following five factors: (A) The present
or threatened destruction, modification, or curtailment of its habitat
or range; (B) overutilization for commercial, recreational, scientific,
or educational purposes; (C) disease or predation; (D) the inadequacy
of existing regulatory mechanisms; or (E) other natural or manmade
factors affecting its continued existence.
Below is a species-by-species analysis of these five factors. The
species are considered in the following order: Ipomopsis polyantha,
Penstemon debilis, and Phacelia submutica.
Background--Ipomopsis polyantha
Previous Federal Actions
We first identified Ipomopsis polyantha as a taxon under review in
the 1983 Supplement to Review of Plant Taxa for Listing as Endangered
or Threatened Species (48 FR 53640, November 28, 1983). In that
document, we included the species as a Category 2 candidate, based on
our evaluation at that time. Category 2 candidate species were formerly
defined as ``taxa for which information now in the possession of the
Service indicates that proposing to list the taxa as Endangered or
Threatened species is possibly appropriate, but for which sufficient
data on biological vulnerability and threat(s) are not currently known
or on file to support proposed rules'' (48 FR 53641, November 28,
1983). We published our decision to discontinue candidate categories
and to restrict candidate status to those taxa for which we have
sufficient information to support issuance of a proposed rule on
December 5, 1996 (61 FR 64481), This resulted in the deletion of
Ipomopsis polyantha from the list of candidate taxa for listing. Since
1996, threats to the species have become more numerous and more
widespread. We added the species to the list of candidates again in the
2005Candidate Notice of Review (CNOR) (70 FR 24873, May 11, 2005) with
a listing priority number (LPN) of 2. Candidates are taxa for which we
have sufficient information on biological vulnerability and threats to
support preparation of a listing proposal, but for which development of
a listing regulation is precluded by other higher priority listing
activities. Candidate species are assigned an LPN (1-12, with 1 being
the highest priority) based on magnitude and immediacy of threats and
taxonomic status. A listing priority of 2 reflects threats that are
imminent and high in magnitude, as well as the taxonomic classification
of I. polyantha as a full species. We published a complete description
of our listing priority system in the Federal Register (48 FR 43098,
September 21, 1983).
Species Information
Ipomopsis polyantha is a rare plant endemic to shale outcrops in
and around Pagosa Springs in Archuleta County, Colorado. Suitable
habitat for the species is identified on about 191 acres (ac) (77
hectares (ha)) on the east edge of town, and on about 23 ac (9 ha)
approximately 10 miles (mi) (16 kilometers (km)) west of town.
Approximately 9 percent of the suitable habitat is on land managed by
the Bureau of Land Management (BLM) land, 12 percent on State and
County highway rights-of-way (ROWs), 78 percent on private lands, and
less than 1 percent on Pagosa Springs park land and county land
(Colorado Natural Areas Program (CNAP) 2007, pp. 1-5; Lyon 2005, pp. 1-
5; Lyon 2006a, pp. 1-2; Lyon 2006b, p. 1).
The Colorado Natural Heritage Program (CNHP) ranks Ipomopsis
polyantha as critically imperiled globally (G1) and in the State of
Colorado (S1) (CNHP 2006a, p. 1). The Nature Conservancy (TNC) and CNHP
also developed a scorecard that ranks I. polyantha among the most
threatened species in the State based on number of plants, quality of
the plants and habitat, threats, and adequacy of protection (CNHP and
TNC 2008, p. 102).
Ipomopsis polyantha is in the Polemoniaceae (phlox) family and was
originally described by Rydberg (1904, p. 634) as Gilia polyantha.
Grant (1956, p. 353) moved the species into the genus Ipomopsis. Two
varieties,G. polyantha var. brachysiphon and G. polyantha var.
whitingii, were recognized by Kearney and Peebles (1943, p. 59).
Currently available information indicates that I. polyantha is a
distinct species (Porter and Johnson 2000; Porter et al. 2003 in
Anderson 2004, p. 11). It is treated as such in the PLANTS database
(United States Department of Agriculture (USDA)/Natural Resource
Conservation Service (NRCS) 2003), and in the Integrated Taxonomic
Information System (2001).
Ipomopsis polyantha is an herbaceous biennial 12 to 24 inches (in.)
(30 to 60 centimeters (cm)) tall, branched from near the base above the
basal rosette of leaves. Deeply divided leaves with linear segments are
scattered up the stem. Stems and flower clusters are covered with
glandular hairs. Flower clusters are along the stem in the axils of the
leaves as well as at the top of the stem. The white flowers are 0.4 in.
(1 cm) long, with short corolla tubes 0.18 to 0.26 in. (0.45 to 0.65
cm) long, and flaring corolla lobes flecked with purple dots (Anderson
1988, p. 3). These dots are often so dense that they give the flower a
pinkish or purplish hue. The stamens extend noticeably beyond the
flower tube, and the pollen is blue (Grant 1956, p. 353), changing to
yellow as it matures (Collins 1995, p. 34). First-year plants form
basal rosettes of leaves. These rosettes produce flowering stalks
during the next growing season, or they may persist for more than 1
year without flowering, until they get enough moisture to flower Plants
produce abundant fruits and seeds, but have no known mechanism for long
distance dispersal (Collins 1995, pp. 111-112). After seeds are mature,
the plants dry up and die.
Pollination by bees is the most common means of reproduction for
Ipomopsis polyantha, and the primary pollinators are a honey bee (Apis
mellifera), metallic green bee (Augochlorella spp.), bumble bee (Bombus
spp.), and digger bee (Anthophora spp.) (Collins 1995, pp. 71-72).
Ipomopsis polyantha is limited to Pagosa-Winifred soils derived
from Mancos Shale. The soil pH is nearly neutral to slightly alkaline
(6.6 to 8.4). The elevation range is 6,800 to 7,300 feet (ft) (2,072 to
2,225 meters (m)). Plants occur in discontinuous colonies as a pioneer
species on open shale or as a climax species along the edge of
ponderosa pine/juniper/oak forested areas. In 1988, Anderson (p. 7)
reported
[[Page 35723]]
finding the highest densities under ponderosa pine forests with montane
grassland understory. Now the species is found mostly on sites that are
infrequently disturbed by grazing, such as road rights-of-way (ROWs)
that are fenced from grazing (as opposed to open range), lightly grazed
pastures, and undeveloped lots (Anderson 2004, p. 20).
Habitat for the species is characterized as suitable, potential, or
unsuitable. Suitable habitat has the attributes of soil and elevation
described above, and we further separate it into occupied habitat where
the plants have been observed and unoccupied habitat where soil and
elevation are suitable but no plants have been observed or no surveys
have been conducted. Potential habitat is identified remotely, using
aerial photographs, soil maps, and other available information, to
build a model of habitat that may support I. polyantha. The model has
not been ground-truthed in the field. Unsuitable habitat is found at
elevations and on soils that do not fit the profile for the species, or
habitat that has been altered by development, paving, or other human
activities so that the plants are prevented from growing there.
There are two known occurrences of Ipomopsis polyantha. Between its
description by C.F. Baker in 1899, and inventories in 1985, I.
polyantha was only known from along U.S. Route 84 (US 84) in the
vicinity of Pagosa Springs, Colorado (Anderson 1988, pp. 1-2, 15-16).
The Pagosa Springs occurrence is still the largest occurrence of the
species. In 1985, an additional occurrence was found about 10 mi (16
km) west of town along U.S. Route 160 (US 160) in a rural area called
Dyke (Anderson 1988, pp. 1-2). In 2002, another occurrence was
documented in a rural area called Mill Creek, about 1.2 mi (1.9 km)
east of Pagosa Springs (Anderson 2004, p. 13; CNHP 2008a, ID 228). The
Mill Creek area is now included in the Pagosa Springs occurrence, in
accordance with NatureServe criteria: occurrences are separated by at
least 0.62 mi (1 km) of unsuitable habitat or 1.24 mi (2 km) of
suitable habitat (NatureServe 2004, p. 1). The two known occurrences
are within about 13 mi (21 km) of each other, and collectively occupy
approximately about 50 ac (20 ha) of habitat within a range that
includes about 4 square mi (10.4 square km). Table 1 summarizes known
occupied habitat (50 ac (20 ha)) combined with suitable habitat not
verified as occupied within the two I. polyantha occurrences (total 234
ac (94 ha)).
Table 1. Occupied and Unsurveyed Suitable Habitat for Ipomopsis polyantha (CNAP 2007, pp. 1-5; Lyon 2005, p. 1;
Lyon 2006a, p. 1-2; Mayo 2008a, p. 1; CNHP 2008a, ID 228)
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Flowering
Occurrence Land Ownership ac (ha) Plants Rosettes
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Pagosa Springs including Mill Creek State ROW 19 (7.7) 3,029 3,083
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County ROW 3 (1.2) 126 NA
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Archuleta County 1 (0.4) 280 NA
Town of Pagosa Springs 1 (0.4) 3 15
Private (suitable) 184 (74) Unsurveyed NA
Private Corporation 3 (1.2) 156,126 173,189
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Subtotals 211 (85) 159,564 176,287
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Dyke State ROW 3 (1.2) 141 176
BLM 20 (8) 88 164
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Subtotals 23 (9) 229 340
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Totals All 234 (94) 159,793 176,627
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The total occupied and surveyed habitat for Ipomopsis polyantha
covers about 50 ac (20 ha). Suitable habitat for the species has been
identified on about 211 acres (ac) (85 hectares (ha)) on the east side
of town, and on about 23 ac (9 ha) approximately 10 miles (mi) (16
kilometers (km)) west of town. Approximately 9 percent of the suitable
habitat is on federally owned Bureau of Land Management (BLM) land, 12
percent on State and County highway ROWs, 78 percent on private lands,
and less than 1 percent on Pagosa Springs Town park land and county
land (Colorado Natural Areas Program (CNAP) 2007). An estimated 184 ac
(74 ha), or 79 percent, of the suitable habitat exists on private
residential and agricultural land where plants have been observed from
a distance, but surveys have not been conducted. Without access to
these private lands, the extent of occupancy cannot be assessed.
The historical range of Ipomopsis polyantha is unknown, but likely
included a much broader area than the currently occupied habitat. Many
surveys of potential habitat in the Pagosa Springs area have been
conducted over the years with negative results. Potential habitat on
about 2,018 ac (817 ha) within the known range has not been surveyed
due to lack of access to private lands. All of this potential habitat
is close to or surrounded by suitable habitat, and is currently
proposed for development, including: Blue Sky Village 96 ac (39 ha);
Blue Sky Ranch 1,362 ac (551 ha); and Fairway 560 ac (227 ha) (see
Threat Factor A below).
None of the potential habitat identified to date extends beyond the
approximately 4-square-mi (10.4-square-km) occupied range of the
species. Reports of this species occurring in Arizona and New Mexico by
the PLANTS National Database and State floras actually pertain to the
two species that were formerly treated as varieties of Ipomopsis
polyantha (Anderson 2004, pp. 11, 15).
[[Page 35724]]
The Pagosa Springs occurrence of Ipomopsis polyantha is southeast
of the town along both sides of US 84. Occupied habitat extends
southward on the highway ROW for 3 mi (4.8 km) from the intersection
with US 160, and on private lands on both sides of the highway within
0.25 to 1.2 mi (0.4 to 1.9 km). In 1985, the estimated number of
flowering plants in this occurrence was 2,000 (Anderson 1988, p. 8).
During 2005-2006, 3,029 flowering plants and 3,083 rosettes were
counted on about 19 ac (7.7 ha) of highway ROW and immediately adjacent
private lands (CNAP 2007, pp. 1-5; Lyon 2005, p. 1; Lyon 2006a, pp. 1-
2). In 2005, an additional 156,126 plants and 173,189 rosettes were
found on a 3-ac (1.2-ha) private land site, which was a high density of
plants on a site where no plants had been observed in previous years
(Lyon 2005, pp. 3-4; Lyon 2007b, p. 1). The plants were found on a
hillside of Mancos Shale about 7 years after it was bladed, and are
still growing there because the ground has not been disturbed during
the growing season (Lyon 2007b, p. 2). I. polyantha quickly colonizes
unvegetated Mancos Shale near a seed source. The number of flowering
plants that appear in subsequent years depends on seed production and
the survival of rosettes that are not outcompeted by other species or
destroyed during ground disturbance.
In addition to the surveyed plants and rosettes, many flowering
Ipomopsis polyantha plants have been seen, but not counted, on private
residential/agricultural parcels along US 84 (Lyon 2006a, p. 1). An
estimated 184 ac (74 ha) of unsurveyed suitable habitat on private
lands exist within the Pagosa Springs occurrence.
The Dyke occurrence includes 0.5 mi (0.8 km) of highway ROW on both
sides of US 160, adjacent private land, and about half of a 40-ac (16-
ha) BLM parcel on the north side. On both of the ROWs and adjacent
pastures, more than 500 flowering plants were estimated in 1985
(Anderson 1988, p. 10). In 1991, about 250 plants were counted in
unused pasture on the south side, but no plants were found in
subsequent years after cattle were returned to the pasture (Collins
1995, pp. 111-112). The number of flowering plants and rosettes on the
US 160 ROW have fluctuated each year between 2005 and 2008. On the
north side ROW, the number of flowering plants and rosettes declined by
80 percent over the 4 years, to 9 and 8 respectively. On the south side
ROW, flowering plants increased 176 percent (to 141 plants), and
rosettes declined 9 percent (to 179 rosettes) (Mayo 2008a, p. 1). The
approximately 20-ac (8-ha) BLM parcel is the only federally managed
habitat for the species. There, in 2006, 88 flowering plants and 164
rosettes were found in clearings among ponderosa pine and shrubs (CNAP
2007, p. 2).
In addition to these extant occurrences, about 13 plants and 18
rosettes were found on a roadside in a residential area north of Pagosa
Springs in 2005. We do not consider this occurrence as extant, because
no plants have been found there since 2005. Surveys of roadsides and
private lands in this vicinity, and on additional potential habitat
north of town, have not detected any individuals of the species (Lyon
2005, p. 3).
In 2004, the total estimate of flowering plants throughout the
entire range of the species was 2,246 to 10,526 (Anderson 2004, p. 40).
Plant surveys from 2005 to 2007 document dramatic increases in the
number of flowering individuals and rosettes within the Pagosa Springs
occurrence at two sites on private land and on the US 84 ROW (CNAP
2007, pp. 1-2). Currently, the total estimate of flowering plants is
159,793 (see Table 1 above). This increase is primarily attributed to
the plants surveyed in 2005 and 2006 on the 3-ac (1.2-ha) private land
site in the Pagosa Springs occurrence. The rapid appearance of such a
dense patch of plants illustrates the specie's ability to colonize
barren Mancos Shale soil, and demonstrates the reproductive success of
the species; however, the sites where they grow are vulnerable to
habitat destruction. The trend in the species' status since 1988 is one
of fluctuating population size that is typical of biennial species,
combined with the loss of some plants due to development.
Summary of Factors Affecting Ipomopsis polyantha
A. The Present or Threatened Destruction, Modification, or Curtailment
of Its Habitat or Range
Ipomopsis polyantha is threatened with destruction of plants and
habitat due to commercial, residential, and agricultural property
development, and associated new utility installations and access roads.
We have documented recent losses of habitat and individuals at six
sites within the Pagosa Springs occurrence of the species, as described
in more detail below.
Within the Pagosa Springs occurrence, a residential and
agricultural development of about a dozen 35-ac (14-ha) parcels was
built prior to 2005 on occupied habitat east of US 84 (Archuleta County
Assessor 2008, p. 1). In 2005, when most residences were new, about 782
flowering plants were counted in meadows and along the fences and
access roads (Lyon 2005, pp. 1-2). By 2008, an increased number of
horses were pastured in the meadows, roadsides and driveways were
graded or widened, and few plants could be found as a result (Mayo
2008b, p. 1). This information indicates that Ipomopsis polyantha
plants are vulnerable to grazing and road improvements, and habitat can
be modified to exclude plants in as few as 3 years. In 2006, at another
location along US 84, a private landowner mowed several hundred feet of
occupied habitat on the highway ROW (Lyon 2006a, p. 1). No plants were
found at this site from 2006 to 2008, indicating that mowing destroys
plants and halts reproduction. In 2005, dense patches of flowering
plants were noted, from across the fence, in a privately owned meadow
along US 84. In 2007, a new home was built, and the meadow was mowed;
no plants could be seen at the same site in 2008 (Mayo 2008b, p. 2),
again indicating that mowing destroys plants and inhibits reproduction.
During 2005 and 2006, a sewer line installation on the US 84 ROW
resulted in the loss of about 498 plants and 541 rosettes, and
modification of about 1,473 ft (449 m) of roadside habitat (Mayo 2008c,
p. 8). The Colorado Department of Transportation (CDOT) and Archuleta
County consulted with us, and agreed on avoidance measures for this
project, but contractors failed to follow the protocol (Mayo 2008c, pp.
1-4). In 2008, only a few flowering plants and rosettes were found at
this site; all of the plants were in one spot near plants on an
adjacent property not disturbed by the sewer line project (Mayo 2008c,
p. 8). This incident demonstrates that I. polyantha cannot quickly
recover from soil disturbance.
Utility installations and construction activities can eliminate
habitat and destroy Ipomopsis polyantha. As a result of careful
planning, in 2007, power line maintenance was completed within occupied
habitat in the Pagosa Springs occurrence with negligible damage to
adult plants. Rosettes in the path of maintenance actions were
transplanted to suitable habitat in the town park. The 278 transplants
survived the winter and produced about 27 flowering plants. However, no
surviving rosettes could be relocated in the fall (Coe 2007, pp. 2-3).
A second attempt at transplanting rosettes to save them from
destruction during utility installations also has not been effective
[[Page 35725]]
in producing new rosettes in the third year (Brinton 2007, pers.
comm.). Unless effective methods are developed, most plants that cannot
be avoided during utility installations and construction activities are
unlikely to survive and reproduce. Whether the species can survive
translocation under other circumstances remains uncertain.
Primary land use within the range of Ipomopsis polyantha has
historically been agricultural, with homes and horses or cattle on
parcels of 35 ac (14 ha) or more. Several small businesses now occur
along US 84 within the Pagosa Springs occurrence. The intersection of
US 160 and US 84 is zoned by the Town of Pagosa Springs for businesses,
and commercially zoned land is currently available for development. The
County is also considering sites in this area for new municipal
buildings; one of the sites under consideration contains the highest
density of I. polyantha occurrence. These current and potential
conversions of agricultural lands to residential and commercial
development are incompatible with conservation of I. polyantha in the
long term because they cause direct mortality and permanent loss of
habitat, whereas habitat modified by grazing may be recovered by
changes in management.
The privately owned property across the entire range of Ipomopsis
polyantha was scheduled for development in the Archuleta County and
Town of Pagosa Springs Community Plan (2000). In this plan, all areas
occupied by I. polyantha on private land outside of the Town limits are
planned for low (35 ac (14 ha)), medium (3 to 35 ac (1.2 to 14 ha)), or
high (2 to 5 ac (0.81 to 2 ha)) density housing. Residential
development is increasing rapidly in the County. The population of
Archuleta County was 5,000 in 1990; the projection is 15,000 people by
2010 and 20,000 by 2020 (Archuleta County and Town of Pagosa Springs
2000, pp. 5-7). Based on the rate of current and proposed development
over the entire range of the species, 85 percent of occupied and
suitable habitat and all potential habitat could be modified or
destroyed within 5 to 10 years, putting the species at risk of
extinction.
The County plan for agricultural and large-lot residential
development along US 84 became obsolete in 2008, with the Pagosa Town
Council's preliminary approval of a 96-ac (39-ha) Blue Sky Village
annexation (Aragon 2008a, pp. 1-2). The proposed development plan is
for a mixed commercial and high-to-low density residential village
(Hudson 2008, p. 1). The 96-ac (39-ha) parcel is adjacent to the
highest density of Ipomopsis polyantha plants, and includes about 2,562
ft (781 m) of potential habitat on US 84 frontage at the center of the
species' distribution (Archuleta County Assessor 2008, p. 1). Occupied
habitat also borders the southern edge of the property. Reducing
habitat available to the Pagosa Springs occurrence of I. polyantha will
limit its ability to disperse and repopulate after impacts.
In addition to the loss of potential habitat on private land for
the plants, the proposed annexation will require access roads, utility
installations, and acceleration and deceleration lanes along the
highway ROW. Plants and habitat will likely be destroyed by this
infrastructure construction. The Blue Sky Village development will
significantly reduce the amount of potential habitat within the
species' range. Location of the development between the highest density
of plants and the rest of the Pagosa Springs occurrence on the east
side of US 84 will further fragment the habitat that has already been
impacted by commercial, residential, and agricultural land uses.
The Blue Sky Ranch development of 1,362 ac (551 ha), plus 2,819 ft
(859 m) of US 84 frontage, is another annexation being considered
within potential Ipomopsis polyantha habitat. This project would
include single and multi-family residential housing, a hotel and
conference center, a golf course with clubhouse, and an equestrian
center with riding trails and a multi-use arena (Aragon 2008b, p. 2).
A development of 560 ac (227 ha), including about 1 mi (1.6 km) of
frontage along the west side of US 84, also is being considered for
annexation within potential habitat that has not been surveyed for
plants (Aragon 2008a, p. 2; Archuleta County Assessor 2008, p. 1).
The above three development proposals within the Pagosa Springs
occurrence cover a total of 2,018 ac (817 ha) of potential habitat for
the plants that have not been surveyed due to restricted access. The
proposed developments include frontage along the US highway 84 ROW that
currently provides 34 percent of the total habitat occupied by the
plants (Archuleta County 2008, p. 1). Plants and habitat on this ROW
are likely to be disturbed or removed by construction of new access
roads, acceleration lanes, and utilities to accommodate the
development.
The Archuleta County and Town of Pagosa Springs revised 2004 Trails
Plan (2004, p. 18) calls for an 8-ft (2.4 m) wide, 2.5-mi (4 km) long,
paved bike path on the highway ROW from US 160 south along US 84 in
occupied Ipomopsis polyantha habitat. This route, prioritized for
completion as soon as funding is available, would eliminate about 50
percent of the occupied habitat on the highway ROW and 80 percent of
the total occupied area in the Pagosa Springs occurrence (see Table 1
above). Another planned paved bike trail, parallel to US 160 and
through the Dyke occurrence of I. polyantha, is on the low priority
list in the Trails Plan (Archuleta County and Town of Pagosa Springs
2004, p. 28). Development of this bike trail would eliminate the
portion of the Dyke occurrence located on the south side of the highway
where the trail would be located.
Distribution of Ipomopsis polyantha on highway ROWs makes this
species susceptible to threats associated with highway activities and
maintenance. Exotic grasses planted by CDOT along roadsides dominate
the ROW between pavement and ditch, limiting most I. polyantha plants
to the ROW bank between ditch and fence. This limitation to the
species' habitat along roadsides is significant because so little
habitat exists elsewhere for the species. I. polyantha plants growing
among thistles were killed by herbicide within the highway ROW along US
84 in 2004, when the thistles were treated with herbicide (Anderson
2004, p. 36). Since that time, Archuleta County has discontinued
broadcast herbicide use and mowing on ROWs within the species' range.
However, the planted exotic grasses continue to limit the species'
habitat.
Highway ROWs provide about 50 percent of the occupied habitat for
Ipomopsis polyantha. All highway ROW habitat is at risk of disturbance
by construction of new access roads or acceleration lanes, bike paths,
and utilities installation or maintenance. Such construction results in
direct loss of I. polyantha individuals or reduced suitability of its
habitat by altering the soil characteristics or displacing the seed
bank (Anderson 2004, p. 36).
We determined that the present and threatened destruction,
modification, and fragmentation of Ipomopsis polyantha habitat from
ongoing commercial and residential development, associated new utility
installations, construction of new access roads and bike paths,
competition from introduced roadside grasses and other impacts
associated with proximity to highways are significant and imminent
threats to the species throughout its range. At this time, the species
primarily persists on highway ROWs and private lands scheduled for
development. Development planned for
[[Page 35726]]
the next 5 to 10 years will likely: (1) Impact over 2,000 ac (809 ha)
of potential habitat; (2) potentially eliminate 167 of the 214 ac (68
of 87 ha) of existing occupied and suitable habitat on private lands;
and (3) potentially eliminate about 34 percent of the highway ROW
(occupied) habitat. Combined, these impacts would relegate the species
primarily to small, fragmented portions of highway ROWs and a few,
small, lightly-used private pastures putting the species in danger of
extinction.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
Activities resulting in overutilization of Ipomopsis polyantha
plants for commercial, recreational, scientific, or educational
purposes are not known to exist. Therefore, this factor is not
addressed in this proposal.
C. Disease or Predation
Disease
Disease is not known to affect Ipomopsis polyantha. Therefore,
disease is not addressed in this proposal.
Predation
This species is threatened by destruction of flowering plants,
rosettes, and seeds due to concentrated livestock disturbance and some
herbivory. Observations of the ``fence line effect''--healthy plants
outside the fence and impacted plants inside the fence--at several
locations on private land used for cattle and horse grazing indicate
that Ipomopsis polyantha does not tolerate intensive livestock grazing
(Anderson 2004, p. 30). For example, grazing by horses at a
residential/agricultural development within the Pagosa Springs
occurrence in 2005 resulted in few I. polyantha plants 3 years later
(Mayo 2008b, p. 1). Over-the-fence observations from seven locations
(pastures) in 2009 found few or no plants in the three heavily grazed
pastures and numerous plants in the adjacent pastures with light or no
grazing (Glenne 2010, pp. 1-3). We have no data to indicate whether the
plant destruction results from herbivory or from trampling. I.
polyantha is not found in heavily grazed pastures, but occurrences have
been observed in lightly grazed horse pastures and abandoned pastures
(CNAP 2007, p. 6). Plants could possibly recolonize a pasture if
livestock numbers were reduced sufficiently and the seed bank was still
viable, or if there was a seed source nearby, such as on the ungrazed
side of a fence. Indications are that the species may be compatible
with light grazing, but the level of impact and the threshold of
species' tolerance have not been studied. Evidence indicates that few
plants persist in areas of continual grazing (Collins 1995, pp. 107,
111, 112). We determined that destruction of flowering plants,
rosettes, and seeds due to heavy livestock use is a significant and
imminent threat to I. polyantha.
D. The Inadequacy of Existing Regulatory Mechanisms
Local Laws and Regulations
City and county ordinances have the potential to affect Ipomopsis
polyantha and its habitats. Zoning that protects open space can retain
suitable habitat, and zoning that allows commercial development can
destroy or fragment habitat. We know of no city or county ordinances
that provide for protection or conservation of I. polyantha or its
habitat. Archuleta County road maintenance crews refrain from mowing or
broadcast spraying ROWs within the range of Ipomopsis polyantha
voluntarily, that is, without the mandate or support of regulations.
However, there is no law, regulation, or policy requiring them to do
so.
New annexation of 2,018 ac (817 ha) into the Town of Pagosa Springs
will change land use from 35-ac (14-ha) agricultural parcels to
commercial and small lot residential, with anticipated adverse impacts
to the Pagosa Springs occurrence of I. polyantha. This land use
conversion, as described in Factor A above, is the most significant
threat to the species, because development planned for the next 5 to 10
years will likely impact all known potential habitat and 17 of 25 ROW
acres (6.9 of 10 ha), and relegate the species to private residential
areas and small, fragmented portions of highway ROWs.
State Laws and Regulations
No State regulations protect rare plant species in Colorado.
Ipomopsis polyantha is classified by CNHP as a G1 and S1 species, which
means it is critically imperiled across its entire range and within the
State of Colorado (CNHP 2006a, p. 1). The CDOT has drafted best
management practices for ROWs within I. polyantha habitat in
collaboration with the Service (Peterson 2008, p. 1). In 2006,
voluntary measures to minimize impacts to plants from a sewer line
installation along US 84 were recommended by CDOT, but not implemented
by the contractors (Mayo 2008c, pp. 1-4).
Federal Laws and Regulations
Ipomopsis polyantha is on the sensitive species lists for the U.S.
Forest Service (USFS) and the BLM (USFS 2009, p. 6; BLM 2008b, p. 47).
Occupied habitat has not been found on USFS land. In 2006, we learned
that the Dyke occurrence extends onto 20 ac (8 ha) of BLM land (Lyon
2007b, pp. 3, 12, 13); 88 plants and 164 rosettes were found there in
2007 (CNAP 2007, p. 2). This BLM parcel was withdrawn from a proposed
land exchange so that the plant habitat would remain under Federal
management (Brinton 2009, pers. comm.; Lyon 2007b, p. 3). The species
has no Federal regulatory protection for approximately 91 percent of
the total known occupied and suitable habitat. It occurs mostly on
State and private land (see Table 1 above), and development of these
areas will likely require no Federal permit or other authorization.
Therefore, projects that affect it are usually not analyzed under the
National Environmental Policy Act (NEPA)(42 U.S.C. 4321 et seq.).
We determined that the inadequacy of existing regulatory mechanisms
is a significant and imminent threat to Ipomopsis polyantha, because 91
percent of the known range of the species is on State and private lands
that carry no protective regulations to ameliorate activities that will
impact the species.
E. Other Natural or Manmade Factors Affecting Its Continued Existence
The adaptation of Ipomopsis polyantha to Pagosa-Winifred soils
derived from Mancos Shale limits it to about 4 square mi (10.4 square
km) within a 13-mi (21-km) range of fragmented habitat on outcrops of
Mancos Shale. The species has specific physiological requirements for
germination and growth that may prevent its spread to other locations
(Anderson 2004, pp. 23-24). In greenhouse trials, seeds will germinate
and grow on other soils, but they grow much faster on Mancos Shale
soils (Collins 1995, p. 114). Faster growth may give I. polyantha a
competitive advantage on relatively barren Mancos shale that it lacks
on other soils where its smaller seedlings have more competition from
other plants for nutrients and water. The species produces more seed
when it is cross-pollinated (Anderson 2004, p. 23); therefore, existing
and foreseeable fragmentation of habitat may cause gene flow to be
obstructed. Pollinator-mediated pollen dispersal is typically limited
to the foraging distances of pollinators, and no bee species is
expected to travel more than 1 mi (1.6 km) to forage (Tepedino 2009, p.
11). Thus, it is likely that the occurrence of
[[Page 35727]]
about 191 plants west of Pagosa Springs is genetically isolated from
the other occurrence several miles (kilometers) away. Spatially
isolated plant populations are at higher risk of extinction due to
inbreeding depression, loss of genetic heterogeneity, and reduced
dispersal rates (Silvertown and Charlesworth 2001, p. 185).
Ipomopsis polyantha shows great differences in plant numbers from
year to year, probably because the plants are biennial and grow from
seed. This trait makes them more vulnerable than perennials to changes
in environment, including timing and amount of moisture, and length of
time since disturbance. With increased time after disturbance,
competition from other plants, both native and nonnative, increases
(CNAP 2008a, p. 4). As a biennial species, I. polyantha also may be
vulnerable to prolonged drought. During drought years, seeds may not
germinate and plants may remain as rosettes without flowering or
producing a new crop of seeds.
Climate change could potentially impact Ipomopsis polyantha.
Localized projections indicate the southwest may experience the
greatest temperature increase of any area in the lower 48 States (IPCC
2007, p. 30). A 10- to 30-percent decrease in precipitation in mid-
latitude western North America is projected by the year 2050, based on
an ensemble of 12 climate models (Milly et al. 2005, p. 1). Climate
modeling at this time has not been refined to the level that we can
predict the amount of temperature and precipitation change within the
limited range of I. polyantha. Therefore, this analysis is speculative
based on what the data indicate at this time. When plant populations
are impacted by reduced reproduction during drought years, they may
require several years to recover. Climate change may exacerbate the
frequency and intensity of droughts in this area and result in reduced
species' viability as the dry years become more common. As described
above, I. polyantha is sensitive to the timing and amount of moisture
due to its biennial life history. Thus, if climate change results in
local drying, the species could experience a reduction in its
reproductive output.
Recent analyses of long-term data sets show accelerating rates of
climate change over the past two or three decades, indicating that the
extension of species' geographic range boundaries towards the poles or
to higher elevations by progressive establishment of new local
occurences will become increasingly apparent in the short term (Hughes
2000, p. 60). The limited geographic range of the Mancos Shale
substrate that underlies the entire Ipomopsis polyantha habitat likely
limits the ability of the species to adapt by shifting occurrences in
response to climatic conditions.
We determined that the natural and human-caused factors of specific
soil and germination requirements, fragmented habitat, effects of
drought and climate change, and lack of proven methods for propagation
present an imminent and moderate degree of threat to Ipomopsis
polyantha across the entire range of the species.
Background--Penstemon debilis
Previous Federal Actions
We first included Penstemon debilis as a category 2 candidate
species in the February 21, 1990, Review of Plant Taxa for Listing as
Endangered or Threatened Species (55 FR 6184). Category 2 candidate
species were defined as ``[t]axa for which there is some evidence of
vulnerability, but for which there are not enough data to support
listing proposals at this time'' (55 FR 6185, February 21, 1990). In
1996, we abandoned the use of numerical category designations and
changed the status of P. debilis to a candidate under the current
definition. We published four CNOR lists between 1996 and 2004, and P.
debilis remained a candidate species with a LPN of 5 on each (62 FR
49398, September 19, 1997; 64 FR 57534, October 25, 1999; 66 FR 54808,
October 30, 2001; 67 FR 40657, June 13, 2002). A LPN of 5 is assigned
to species with non-imminent threats of a high magnitude.
On March 15, 2004, the Center for Native Ecosystems (CNE) and the
Colorado Native Plant Society petitioned us to list Penstemon debilis
(CNE 2004a, p. 1). We considered the information provided in their
petition when we prepared the 2004 CNOR. In the 2004 CNOR, P. debilis
remained a candidate species with a listing priority of 5 (69 FR 24876,
May 4, 2004).
On May 11, 2004, we received a petition from the Center for
Biological Diversity (CBD) to list 225 species we previously had
identified as candidates for listing, including Penstemon debilis (CBD
2004, p. 6). Under requirements in section 4(b)(3)(B) of the Act, the
CNOR and Notice of Findings on Resubmitted Petitions published on May
11, 2005 (70 FR 24870), raised the LPN of P. debilis from 5 to 2 but
also included a finding that the immediate issuance of a proposed
listing rule and the timely promulgation of a final rule for each of
225 petitioned species, including P. debilis, was warranted but
precluded by higher priority listing actions, and that expeditious
progress was being made to add qualified species to the Lists (70 FR
24870, May 11, 2005).
On November 15, 2004, the CNE issued a 60-day notice of intent to
sue for violation of section (4)(b)(3)(A) of the Act with respect to
the petition to list Penstemon debilis (CNE 2004b, pp. 1-2). On January
25, 2005, Biodiversity Conservation Alliance and seven other entities
filed an amended complaint regarding our failure to list P. debilis and
five other species. As part of a settlement agreement, plaintiffs
withdrew their lawsuit regarding P. debilis.
In the 2005 CNOR (70 FR 24870), as stated above, the listing
priority number for Penstemon debilis was changed from 5 to 2 based on
an increase in the intensity of energy exploration along the Roan
Plateau escarpment, making the threats to the species imminent (70 FR
24870, May 11, 2005). A listing priority of 2 represents threats that
are both imminent and high in magnitude. CNOR lists published in 2006
and 2007 maintained P. debilis as a candidate species with a listing
priority of 2 (71 FR 53756, September 12, 2006; 72 FR 69034, December
6, 2007).
In each assessment since its recognition as a candidate species in
1996, we determined that publication of a proposed rule to list the
species was precluded by our work on higher priority listing actions.
However, in 2008, we received funding to initiate the proposal to list
Penstemon debilis.
Species Information
Penstemon debilis is a rare plant, endemic to oil shale outcrops on
the Roan Plateau escarpment in Garfield County, Colorado. This species
is known by the common names Parachute beardtongue and Parachute
penstemon. P. debilis is classified by the CNHP as a G1 and S1 species,
which means it is critically imperiled across its entire range and
within the State of Colorado (CNHP 2008b, p. 14). The total estimated
number of known plants is approximately 4,000 individuals (CNHP 2006b,
p. 1; CNHP 2009a, p. 1; CNHP 2009b, p. 1; CNHP 2009c, p. 1; CNHP 2009d,
p. 2). Approximately 82 percent of the known plants are on private land
owned by a natural gas and oil shale production company. Most of the
remaining 18 percent occur in one occurrence on BLM land that was
recently leased under a new Resource Management Plan (RMP) amendment
(BLM 2008a, Record of Decision (ROD) p. 2). In recent years, energy
development has increased in this area on both private and Federal
lands.
[[Page 35728]]
Traditionally Penstemon has been included in the Scrophulariaceae
(figwort family). Phylogenetic studies based on DNA sequences of taxa
in this and related plant families over the last 10 years have
necessitated realignment of several genera in these groups. Apart from
a nomenclatural discrepancy, Penstemon has been shown to be a part of
the Plantaginaceae (plantain) family, since 2001. The chronology and
summary of the placement of Penstemon in the Plantaginaceae is
presented by Oxelman et al. (2005, p. 415). We recognize this placement
and will make the appropriate attribution in the proposed amendments to
50 CFR 17.12(h) at the end of this document. The text will include the
family name as Plantaginaceae.
Penstemon debilis was discovered in 1986, and was first described
by O'Kane and Anderson in 1987 (pp. 412-416. No challenges have been
made to the taxonomy as first put forward by the authors. Penstemon
debilis is a mat-forming perennial herb with thick, succulent, bluish
leaves, each about 0.8 in. (2 cm) long and 0.4 in. (1 cm) wide. Plants
produce shoots that run along underground, forming what appear as new
plants at short distances away. Individual P. debilis plants are able
to survive on the steep, unstable, shale slopes by responding with stem
elongation as leaves are buried by the shifting talus. Buried stems
progressively elongate down slope from the initial point of rooting to
a surface sufficiently stable to allow the development of a tuft of
leaves and flowers (O'Kane and Anderson 1987, pp. 414-415). Flowers are
funnel-shaped, are white to pale lavender, and flower during June and
July. P. debilis plants produce a low number of seeds, are primarily
outcrossers, and have many different pollinators that vary between
occurrences (McMullen 1998, p. 26). None of the pollinators are
specialists to P. debilis, nor are any of them rare (McMullen 1998, p.
31). We know little about the lifecycle of Penstemon debilis with
regard to generational timetables.
Penstemon debilis seems to be at least somewhat adapted to
disturbance. Each of the known occurrences of the species contains high
levels of physical disturbance (McMullen 1998, p. 81). Many of the
characteristics that are most similar among sites promote continual
disturbance: steep slopes, unstable shale channer surface layers, and
no surface soil (McMullen 1998, p. 82). In fact, two of the largest P.
debilis occurrences, are on recent mine talus slopes where
anthropogenic disturbance was very high as recently as 1994 (McMullen
1998, p. 82). One occurrence was recorded to have several hundred
individuals in 1994, but no individuals can be found at this site today
(McMullen 1998, p. 82). This may be a result of a reduction in the
disturbance levels through successional processes such as soil
development and increased vegetative cover (McMullen 1998, p. 82).
Penstemon debilis may be considered a pioneer species that disperses to
recent disturbances, flourishes, and goes locally extinct if soil
conditions become stable (McMullen 1998, p. 82).
Penstemon debilis grows on steep, oil shale outcrop slopes of white
shale talus at 8,000 to 9,000 ft (2,400 to 2,700 m) in elevation on the
southern escarpment of the Roan Plateau above the Colorado River west
of the town of Parachute, Colorado. The Roan Plateau falls into the
geologic structural basin known as the Piceance Basin. Average annual
precipitation at Parachute, Colorado, is 12.75 in. (32.4 cm) (IDcide
2009, p. 1). P. debilis is found only on the Parachute Creek Member of
the Green River Formation. P. debilis is often found growing with other
species endemic to the Green River formation, including Astragalus
lutosus (dragon milkvetch), Festuca dasyclada (Utah fescue), Mentzelia
argillosa (Arapien stickleaf), and Thalictrum heliophilum (sun-loving
meadowrue), as well as several non-endemics (O'Kane & Anderson 1987, p.
415).
The historical range and distribution for this species is unknown.
All of the currently known occurrences occur on about 56 ac (23 ha) in
Garfield County. The Green River geologic formation to which the plant
is restricted is the major source of oil shale in the United States.
Although this formation is underground throughout most of the Piceance
Basin, it is exposed on much of the southern face of the Roan Plateau.
The total area of the plant's geographic range is about 2 mi (3 km)
wide and 8 mi (13 km) long. Prior to 1997, two occurrences of P.
debilis were known. In 1997, the CNHP used existing habitat and
distribution information, along with soils, geology, and aerial
photographs, to select target survey areas. The ensuing survey resulted
in the discovery of two new occurrences (Spackman et al. 1997, p. 6).
Two other occurrences were first recorded by BLM in 1997 and 2005 at
oil shale mine sites (CNHP 2009a, p. 1; CNHP 2009d, p. 1). Another
occurrence of approximately 12 plants was reported in June 2009 (Graham
2009a, pp. 1-2). It is likely that unknown occurrences exist, because
many areas are simply inaccessible to surveyors due to steep terrain or
private land ownership or both.
Penstemon debilis occurs at seven known occurrences, four of which
are rated by CNHP as having ``good to excellent'' estimated viability
based on population size, individual plant sizes, and site ecology
(CNHP 2006b, p. 1; CNHP 2009a, p. 1; CNHP 2009b, p. 1; CNHP 2009c, p.
1; CNHP 2009d, p. 2) (see Table 2 below). The largest occurrence (Mount
Callahan Natural Area) of 2,100 to 2,240 plants grows on lands owned by
an energy development company (CNAP 2006, p. 1). The Mount Callahan
Ridge occurrence, with an estimated 650 plants, grows on lands owned by
the same energy development company (CNAP 2006, pp. 1-2). The Anvil
Points Road occurrence grows on lands administered by the BLM and has
an estimated 700 plants (CNHP 2009d, p. 2). The Mount Logan Mine
occurrence grows on lands owned by both the energy development company
(approximately 90 percent) and BLM (10 percent), and has 533 plants
(CNHP 2009a, p. 1).
Two additional Penstemon debilis occurrences on BLM land are
considered to have ``poor'' estimated viability (CNHP 2009e, p. 1; CNHP
2009f, p. 1). The Anvil Points occurrence had 200 to 300 plants
reported in 1994, but only three plants could be found in 1998 (CNHP
2009e, p. 1). The latest survey in 2006 found no plants at this
occurrence (CNHP 2009e, p. 1). It appears that the decline of this
occurrence was a result of natural processes including competition by
surrounding vegetation (DeYoung 2008a, p. 1). The area including this
habitat also was leased under the BLM August 2008 lease sale (BLM
2008b, p. 3; Ewing 2008a, p. 7).
The Mount Logan Road occurrence, discovered in 1996 on a road cut,
had 10 plants, of which only 3 were found in 2005 (CNHP 2009f, p. 1).
Because these two occurrences have so few individuals, they are
considered to have poor viability by CNHP, and we consider them not
viable into the future.
The Smith Gulch occurrence of approximately 12 plants was reported
in June 2009 (Graham 2009a, pp. 1-2). This occurrence has not been
rated by CNHP; however, it is small (12 plants) and, because of its
positioning in a drainage, has a high potential for being destroyed by
a rain event (Graham 2009a, pp. 1-2).
[[Page 35729]]
Table 2. Current and Historically Known Penstemon debilis Occurrences
----------------------------------------------------------------------------------------------------------------
of
Occurrence Viability Plants ac (ha) Land Ownership
----------------------------------------------------------------------------------------------------------------
Mt. Callahan Natural Area Excellent 2,100-2,240 32 (12.9) Private
----------------------------------------------------------------------------------------------------------------
Anvil Points Road Good 700 5 (2) BLM
----------------------------------------------------------------------------------------------------------------
Mount Logan Mine Good 533(50 on BLM) 2 (0.8) Private and BLM
----------------------------------------------------------------------------------------------------------------
Mount Callahan Ridge Good 650 4 (1.6) Private
----------------------------------------------------------------------------------------------------------------
Mount Logan Road Poor 3 7 (2.8) BLM
----------------------------------------------------------------------------------------------------------------
Anvil Points Poor 0 6 (2.4) BLM
----------------------------------------------------------------------------------------------------------------
Smith Gulch Unrated 12 not reported BLM
----------------------------------------------------------------------------------------------------------------
Total 3,998 - 4,138 56 (22.7) ..................
----------------------------------------------------------------------------------------------------------------
The total estimated number of Penstemon debilis in the wild is
currently 3,998 to 4,138 individuals. The occurrences on BLM land
represent about 18 percent of the total plants counted and estimated.
An energy development company owns land that contains approximately 82
percent of the total plants. We have no information to indicate an
overall species trend.
Summary of Factors Affecting Penstemon debilis
A. The Present or Threatened Destruction, Modification, or Curtailment
of Its Habitat or Range
Penstemon debilis habitat is threatened by energy development and
associated impacts. Of the four known viable occurrences (Mount
Callahan Natural Area, Anvil Points Road, Mount Logan Mine, Mount
Callahan Ridge), all but the Anvil Points Road occurrence are on lands
wholly or partially owned by an energy development company. All four
viable occurrences, which exist on the Roan Plateau, face ongoing or
potential threats, including: oil and gas development, oil shale
extraction and mine reclamation, and road maintenance and vehicle
access through occurrences.
The Piceance Basin, including federal and private lands surrounding
the Roan Plateau, has experienced a boom in natural gas production in
recent years. The BLM projects that around 3,916 billion cubic feet of
natural gas will be developed over the next 20 years from the portion
of the Roan Plateau that was addressed in the new RMP amendment (CNE
2004a, p. 44). Oil and gas exploration and development continues to
increase each year on and around the Roan Plateau. In 2003, 566 new
wells were permitted in Garfield County: 796 in 2004; 1,508 in 2005
(Colorado Oil and Gas Conservation Commission (COGCC 2006, p. 1); 1,844
in 2006; 2,550 in 2007 (COGCC 2008, p. 1); and 2,888 in 2008 (COGCC
2009a, p. 1). Because of a decrease in natural gas prices, new well
permits decreased in 2009 to 743 (Webb 2009, p. 1), as of June 3, 2009
(COGCC 2009a, p. 1). This number is down from the 1,029 wells permitted
by the same time in 2008, but is still higher than the 566 wells
permitted in Garfield county in all of 2003 (COGCC 2008, p. 1).
Energy exploration and development includes construction of new
unpaved roads, well pads, disposal pits, evaporation ponds, and
pipeline corridors, as well as cross country travel by employees. Each
of these actions has the potential to cause direct impacts such as
plant removal and trampling, and indirect impacts to Penstemon debilis
such as dust deposition and loss of habitat for pollinators. The
ramifications of direct impacts are easily assessed if witnessed. Plant
removal, contact with herbicide or ice-melting chemicals, and trampling
can cause death of plants. Because P. debilis was unknown as a species
until 1987, and most of the occurrences are on private land or in
remote locations on public land, the impacts may go unnoticed. For
example, impacts to the Mount Logan Mine occurrence were unknown until
the occurrence was discovered in 2005; even after discovery, further
mine-related impacts occurred because the remote location of the mine
made it difficult for BLM to manage the occurrence (CNHP 2009b, p. 1;
Ewing 2009a, p. 4).
Indirect effects to Penstemon debilis from energy exploration are
less easily assessed. Road traffic on unpaved roads increases dust
emissions in previously stable surfaces (Reynolds et al. 2001, p.
7126). For every vehicle traveling one mile (1.6 km) of unpaved roadway
once a day, every day for a year, approximately 2.5 tons of dust are
deposited along a 1,000-foot (305-m) corridor centered on the road
(Sanders 2008, p. 20). Vascular plants can be greatly affected within
the zone of maximum dust fall (i.e., the first 1000 ft (305 m) from the
road) (Everett 1980, p. 128). Excessive dust may affect photosynthesis,
affect gas and water exchange, clog plant pores, and increase leaf
temperature leading to decreased plant vigor and growth (Ferguson et
al. 1999, p. 2; Sharifi et al. 1997, p. 842). All of the viable
occurrences of P. debilis are within 300 ft (91 m) of roads. Further
energy development would likely increase road density and traffic
volume.
Other indirect impacts can occur due to a loss of pollinator
habitat. Penstemon debilis requires an insect pollinator to reproduce
(McMullen 1998, p. iii). McMullen (1998) concluded that pollinators for
P. debilis were generalists and were not limiting at that time (prior
to the energy boom). However, Tepedino (2009) described how the
pollination biology of another Piceance Basin rare plant (Physaria
obcordata) is being impacted by energy development. He described that
any energy development that reduces the general level of available
floral vegetation has a detrimental effect on pollinators' ability to
reproduce, subsequently resulting in fewer pollinators and reduced
ability of the dependent plant to reproduce (Tepedino 2009, pp. 16-17).
A large parcel of land including habitat occupied by the Anvil
Points Road occurrence was offered and sold for oil and gas leasing
under the BLM August 2008 lease sale (DeYoung 2008b, p. 1; BLM 2008b,
p. 1; Ewing 2008a, p. 7). This lease is currently being contested in
court. Increased energy exploration in the Anvil Points Road area may
increase maintenance and vehicle access on the unstable road that
[[Page 35730]]
transects the Penstemon debilis occurrence and increase the likelihood
of effects to P. debilis due to construction of additional roads and
other facilities associated with oil and gas exploration.
Oil shale mining has impacted Penstemon debilis occurrences. Oil
shale extraction activities occurred on the Roan Plateau in the early
1980s and into the 1990s (COBiz 2008, pp. 3-4). This extraction
impacted the Mount Logan Mine and Anvil Points Road occurrences.
Because P. debilis was not identified as a species until 1987, we have
no record of the pre-mining occurrence status. However, we believe the
plants were present at these sites prior to mining because they are
present now. The plants were likely heavily impacted by mine operations
within their habitat, and the occurrences have recovered to a far
smaller population size on a reduced area of habitat (see Factor E for
discussion of inherent risk of small population size).
Commercial oil shale extraction has not yet proven to be
economically viable, and current research and development efforts no
longer focus on surface mining of oil shale rock on the Roan Cliffs
(COBiz 1987, pp. 3-4). The BLM recently released the RMP amendments to
allow oil shale leasing in the Piceance Basin (BLM 2007a, p. 1). The
known Penstemon debilis occurrences are not within the area that BLM
has currently identified as available for leasing (BLM 2008c, p. 14).
It is unknown when oil shale extraction will become economically
viable. Despite the recent retreat from surface mining of oil shale, if
commercial oil shale production does become economically viable, we
expect a renewed interest in extracting shale from the cliffs of the
Roan Plateau because of the convenient access to shale resources on the
surface. Recent and ongoing impacts to the Anvil Points Road occurrence
are occurring due to research conducted by an oil shale research and
development company and at the Anvil Points Road and Mount Logan Mine
occurrences due to mine reclamation and closure efforts (DeYoung 2009a,
pers. comm.; Mayo 2006, pp. 1-4).
The BLM has begun mine reclamation action under the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA) (42
U.S.C. 9601 et seq.), commonly known as Superfund, to remove health and
safety hazards from Anvil Points Road. Actions will include closing
access to the passages leading into the mine and removing lead mine
tailings soil on the mine bench (Goodenow 2008, pers. comm.). It is
unknown whether the lead in the soil is a threat to Penstemon debilis.
The CNHP estimates 700 individual plants at this occurrence (CNHP
2009d, p. 2). To date, 88 plants are known to have been directly
impacted by Anvil Points Road mine reclamation actionspermitted by BLM,
occuring in the winter of 2008-2009 (DeYoung 2009b, pers. comm.). Of
the 88, 21 were transplanted, and 67 were covered by matting intended
to reduce soil disturbance (DeYoung 2009b, pers. comm.; DeYoung 2009c,
p. 1). Long-term success of transplants is unknown, but 2 of the 21
transplants died as of June 2009 (DeYoung 2009c, p. 1). Eleven of the
67 plants covered by matting are dead or unaccounted for (DeYoung
2009c, p. 1). With restoration work still underway, it is unclear how
many more plants will be impacted.
The Anvil Points Road occurrence is impacted by Garfield County
road stabilization work, which is required to maintain access to a
transmitter tower located within occupied habitat for Penstemon
debilis. In addition, BLM recently allowed an oil shale research and
development company to conduct research in the Anvil Points mine, a
project area containing the Anvil Points Road occurrence (Ewing 2008a,
p. 4). This research consists of taking high resolution photographs of
the geologic formation visible from the sides of the mine, and possibly
removing core samples. This research project is expected to include
vehicle trips up the road every day for 1 month and to directly impact
P. debilis individuals growing in the road immediately outside the mine
(Ewing 2008a, p. 6). The roads transecting the occurrence are on
shifting shale talus slopes and are very conducive to rock and
mudslides, which can destroy P. debilis habitat and which require the
road to be maintained frequently. Three plants are known to have been
destroyed by the road maintenance conducted under this permit (DeYoung
2009a, pers. comm.). The BLM believes that some additional plants may
have been trampled by unauthorized access to an area that was fenced
off during the research period; however, it is unclear how many plants
were disturbed (DeYoung 2008c, pers. comm.). In addition to the direct
impacts, the road maintenance required to allow this level of traffic
makes occupied P. debilis habitat more accessible to the public, which
could result in further trampling by humans and vehicles (Ewing 2008a,
pp. 5-6).
The Mount Logan Mine occurrence of Penstemon debilis is primarily
located on land owned by a natural gas and oil shale production
corporation, with a portion of the occurrence occupying BLM land. This
occurrence is perched on a steep, unstable slope above a road that is
currently used for access to an ongoing reclamation project at an old
oil shale mine site. Several plants on this steep road bank were
dangling by their roots in 2005 due to road maintenance (Mayo 2006, pp.
1-4). The road was widened, and these plants were gone by 2006 (Mayo
2006, p. 1). Mine reclamation actions destroyed a portion of this
occurrence by burying it in topsoil (Ewing 2009a, p. 4). This site also
contains noxious weeds associated with the disturbance; it is unknown
whether the weeds will pose a threat to P. debilis (Ewing 2009a, p. 4).
The BLM portion of this occurrence was included in an oil and gas lease
parcel nominated for sale; however, BLM deferred the sale of the lease
parcel until their RMP revision is complete, and until we make a
decision concerning the status of the species (CNE 2005, p. 1; Lincoln
2009, pers. comm.). The energy company that owns the land containing
most of the Mount Logan Mine occurrence has been actively developing
their holdings in this area. Further development of the lands
immediately surrounding this occurrence would likely result in impacts
due to road construction and maintenance on the unstable shifting shale
talus.
The Mount Logan Road occurrence, located on a road cut near the
Logan Mine occurrence, had 10 plants in 1996, of which only 3 plants
were found in 2005 (CNHP 2009f, p. 1). This occurrence has no barriers
to shield the plants from road impacts, such as removal by maintenance
machinery, accidental trampling, and spraying of ice melting or
herbicide chemicals; the road also generates heavy dust (CNHP 2009f,
pp. 1-3; DeYoung 2009d, pp. 1-3; Ewing 2009a, p. 2). As a result of
these threats, we consider this occurrence to be nonviable.
The Mount Callahan Natural Area and Mount Callahan Ridge
occurrences, which include approximately 82 percent of total known
Penstemon debilis plants, occur on land owned by an energy development
company. These occurrences are behind locked gates, making them
inaccessible to the public and the Service. The landowner intends to
develop up to three natural gas well drilling pads within a 680-ac
(275-ha) area that includes both Mount Callahan occurrences (Webb 2008,
p. 1). Construction has begun on one pad, located 360 ft (110 m) from
the nearest known P. debilis individual and 105 ft (32 m) uphill from
its habitat (Ewing 2008a, p. 2). These pads will likely indirectly
impact P. debilis through dust
[[Page 35731]]
generation, loss of pollinator habitat, and inadvertent trampling by
employees and contractors. Monitoring of the occurrence, in connection
to the energy development, has resulted in trampling of individual
plants by people collecting the data (Ewing 2009a, p. 1).
The Smith Gulch occurrence of approximately 12 plants was
discovered on BLM lands below Mount Callahan during surveys for a
proposed oil and gas development project in June 2009 (Graham 2009b, p.
1). Two well pads, and corresponding roads and pipelines, are proposed
for this area (Graham 2009b, p. 1).
The BLM develops a Reasonably Foreseeable Development scenario
(RFD) to project the level of oil and gas activity that can be expected
to occur. The RFD is intended as a technical and scientific
approximation of anticipated levels of oil and gas development during
the planning timeframe (BLM 2006, p. 4-2). It is not intended to define
specific numbers and locations of wells and pads. An RFD for oil and
gas is a long-term projection of oil and gas exploration, development,
production, and reclamation activity within the lands and minerals
managed by the BLM Field Office (BLM 2005b, p. 2). The RFD is a
technical report typically referenced in the NEPA document for the RMP
(BLM 2005b, p. 2).
The RFD for the Glenwood Springs BLM Field Office, Roan Plateau
Planning Area, which contains the Anvil Points Road and Anvil Points
Penstemon debilis occurrences, used 20 years as the foreseeable
development timeframe. Based on the RFD, the Roan Environmental Impact
Statement (EIS) Proposed Plan projected approximately 669 pads, 3,691
wells, 2,791 ac (1,129 ha) of long-term disturbance, and 1,624 ac (657
ha) of short-term disturbance in the Roan Planning Area (BLM 2006, p.
4-11). The other occurrences located on BLM land (Mount Logan Mine and
Mount Logan Road) are within the BLM Grand Junction Field Office, which
is currently in the process of developing a new RFD. The current RFD
was developed in 1987, and forecasted 50 wells a year for a 20-year
timeframe (Anderson 2008, p. 1). No RFD projection is available for the
lands containing the Mount Callahan Natural Area, Mount Callahan Ridge,
and private portion of the Mount Logan Mine occurrences, because they
are on private lands with privately owned minerals.
Penstemon debilis is not protected by Federal regulation for about
82 percent of the total known and estimated plants because they are on
private land. The remaining 18 percent of plants are on BLM lands. The
BLM controls access to the Anvil Points Mine (containing the Anvil
Points Road occurrence) with a gate. This gate is often left open,
allowing public access to the plant occurrence Access to the other BLM
occurrence (the Mount Logan Road occurrence) is controlled by a guard
station. Approximately 300 trucks, associated with energy development,
drive by this occurrence every day after checking with the guard (Mayo
2005, p. 1).
In summary, three of the four viable occurrences (Mount Callahan
Natural Area, Mount Logan Mine, and Mount Callahan Ridge) are on lands
owned wholly or partially by an energy development company. Some
individuals of the fourth occurrence (Anvil Points Road), on BLM land,
are subject to transplantation or destruction as a result of an ongoing
mine restoration project and road maintenance. Over the past 6 years,
oil and gas exploration and production has increased substantially in
the area containing the habitat for Penstemon debilis making it likely
that the species will become endangered in the foreseeable future. The
pace of new development slowed in 2009; however, it is still far above
pre-2004 levels. P. debilis grows on steep shifting slopes, and roads
through P. debilis habitat are unstable and require frequent
maintenance, which often destroys plants. Plants seem to be able to
recolonize their habitat after disturbance; however, recolonization is
slow, and would not be able to keep pace with rapid development. For
these reasons we consider destruction and modification of the species'
habitat for natural gas production, oil shale mining, mine reclamation,
road maintenance, and associated impacts resulting from increased
vehicle access to the occurrences, a moderate but immediate threat to
P. debilis.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
Overutilization for commercial, recreational, scientific, or
educational purposes is not known to be a threat to Penstemon debilis.
Therefore, this factor is not addressed in this proposal.
C. Disease or Predation
Seed predation of Penstemon debilis by small mammals has shown to
be very low (McMullen 1998, pp. 39-40). Grazing, predation, and disease
are not known to be a threat to P. debilis. Therefore, this factor is
not addressed in this proposal.
D. The Inadequacy of Existing Regulatory Mechanisms
Local Laws and Regulations
Approximately 82 percent of Penstemon debilis occupied habitat
occurs on private lands. We are not aware of any city or county
ordinances or zoning that provide for protection or conservation of P.
debilis or its habitat.
State Laws and Regulations
No State laws or regulations protect rare plant species in Colorado
on private land or otherwise. The Mount Callahan Natural Area and Mount
Callahan Ridge occurrences, including approximately 82 percent of total
known Penstemon debilis plants, occur on land owned by an energy
development company. With the cooperation of the landowner, the CNAP, a
State agency, has designated the area of Mount Callahan (referred to
throughout the document as the Mount Callahan Natural Area occurrence)
and Mount Callahan Ridge occurrences as Natural Areas (Kurzel 2008,
pers. comm.; CNAP 1987, pp. 1-7;, CNAP 2008a, pp. 1-7;, Webb 2008, p.
1) Through these designations, the landowner has agreed to develop the
natural gas pads in a way that should minimize impacts to the P.
debilis occurrences (Ewing 2008a, pp. 1-2). The agreements include
conservation measures such as stormwater management and a noxious weeds
management plan in order to minimize development impacts to the species
(CNAP 2008b, pp. 1-4; CNAP 2008c, pp. 1-4). The CNAP has been very
successful in garnering landowner participation in conservation of rare
species in Colorado. However, natural area agreements are voluntary and
can be terminated at any time by either party with a 90-day written
notice. For this reason, and because no legally binding conservation
easements or candidate conservation agreements protect any of the
occurrences on private land, we have concluded that the Natural Area
designation alone does not constitute an adequate regulatory mechanism
to conserve P. debilis. We consider inadequate State laws and
regulations a significant and immediate threat to this species, because
the laws do not ameliorate the threats to the species.
Federal Laws and Regulations
The Federal Land Policy and Management Act (FLPMA) (43 U.S.C. 1701
et seq.) directs BLM, as part of the land use planning process, to
``give priority to the designation and protection of areas of critical
environmental concern'' (Sec. 202(c)(3)).
[[Page 35732]]
The FLPMA defines areas of critical environmental concern (ACECs) as
``areas within public lands where special management attention is
required ... to protect and prevent irreparable damage to important
historic, cultural, or scenic values, fish and wildlife resources or
other natural systems or processes, or to protect life and safety from
natural hazards'' (Sec. 103 (a)). Designation as an ACEC recognizes an
area as possessing relevant and important values that would be at risk
without special management attention (BLM 2006, pp. 3-110). The ACEC
designation carries no protective stipulations in and of itself (BLM
2006, pp. 2-65).
Following an evaluation of the relevance and importance of the
values found in potential ACECs, a determination is made as to whether
special management is required to protect those values and, if so, to
specify what management prescriptions would provide that special
management (BLM 2006, pp. 3-111). The Records of Decision (RODs) for
the Roan Plateau RMP Amendment were signed June 8, 2007, and March 12,
2008. The March 12, 2008, ROD establishes the Anvil Points ACEC, an
area designated for management of sensitive resources including
Penstemon debilis (BLM 2008a, ROD p. 4). The ROD lists as an objective
for the Anvil Points ACEC to ``protect occupied habitat and the
immediately adjacent ecosystem processes that support candidate
plants.'' This ROD also authorizes oil and gas development in the
ACECs, making the portions of these areas that are not currently
leased, available for lease (BLM 2008a, ROD p. 2). Anvil Points ACEC
covers most of the formerly occupied occurrence area at Anvil Points,
and the entire Anvil Points Road occurrence.
In order to protect Penstemon debilis in the ACEC, a No Surface
Occupancy (NSO) and No Ground Disturbance (NGD) stipulation was
established for both Anvil Points P. debilis occurrences (BLM 2007b,
ROD p. 26). The term NGD applies to all activities except oil and gas
leasing and permitting, while the term NSO applies only to oil and gas
leasing and permitting (BLM 2008a, ROD p. 6). The NSO designation
prohibits long-term use or occupancy of the land surface for fluid
mineral exploration or development to protect identified resource
values (BLM 2006, pp. 2-3). This designation means that an area is
protected from permanent structures or long-term ground-disturbing
activities (i.e., lasting longer than 2 years) (BLM 2006, pp. 2-3). For
example, an NSO designation would preclude construction of a well pad
(because it would last longer than 2 years) but not a typical pipeline
(because it would be revegetated within 2 years) (BLM 2006, pp. 2-3).
Also, an NSO does not preclude the extraction of underlying fluid
minerals if they can be accessed from outside the area by directional
drilling (BLM 2006, pp. 2-3). Directional drilling may not disturb the
overlying surface, including Penstemon debilis habitat. Except for
specified situations, individual NSOs may include exceptions so that
BLM may allow a ground-disturbing activity if it meets specific, stated
criteria (BLM 2006, pp. 2-3). For example, the NSO designation for
these occurrences allows for the BLM to grant exceptions for long-term
ground disturbing activities if consultation with the Service indicates
that proposed activity would not impair maintenance or recovery of the
species (BLM 2007a, pp. F6-F7).
The protections provided by the NSO/NGD provision of the ACEC
designation should be adequate to provide for maintenance of the Anvil
Points Road occurrence. When applied, the NSO/NGD would require BLM to
consult with the Service and ensure that proposed activity would not
impair maintenance or recovery of the species prior to authorizing an
exception to the NSO/NGD (BLM 2007a, pp. F6-F7). However, despite NSO/
NGD provisions, projects have proceeded without consultation that
resulted in destruction of Penstemon debilis individuals, and other
projects with likely impacts to P. debilis are being considered by BLM
without consultation. This ability to proceed without consultation
indicates that the NSO/NGD provisions are inadequate to protect P.
debilis and its habitat. Recent examples demonstrating the inadequacy
of the NSO/NGD provisions follow. (1) The BLM approved work under the
CERCLA to remove health and safety hazards from the Anvil Points Road
occurrence. This project resulted in direct impacts to at least 90
Penstemon debilis individuals (DeYoung 2009c, p. 1). We believe many of
these impacts could have been avoided or minimized through the
consultation process. (2) BLM is considering granting permission for
continued maintenance of the Garfield County transmitter tower access
road (DeYoung 2009b pers. comm.). Maintaining the existing road rather
than relocating it increases the likelihood of destroying P. debilis
plants and prevents the recolonization of plants in the current road
bed. (3) BLM has authorized oil shale research projects in the past at
the Anvil Points mine (Ewing 2008a, p.4), which lead to the destruction
of P. debilis plants (BLM 2007a, p. F6-F7; DeYoung 2009a, pers. comm.).
(4) The land containing the Anvil Points Road occurrence was leased for
oil and gas development under the BLM August lease sale (DeYoung 2008b,
p. 1; BLM 2008b, p. 1; Ewing 2008a, p. 7). Increased energy exploration
in the Anvil Points Road area may increase maintenance and vehicle
access and consequently increase the likelihood of other adverse
affects. Continued adverse impacts to the Anvil Points Road occurrence,
beyond those currently occurring during the mine reclamation effort,
could result in reduced viability and possible extirpation of the Anvil
Points Road occurrence.
In summary, we found that existing regulatory mechanisms are
inadequate to protect Penstemon debilis. No State or local laws or
regulations protect Penstemon debilis. P. debilis is afforded some
protection on Federal lands as a candidate species; however, the
protection has been inadequate, and would be reduced if we find that P.
debilis does not meet the definition of an endangered or threatened
species. P. debilis has no regulatory protection for approximately 82
percent of the total estimated plants because they are on private land.
The private land owner has pledged to protect these plants from direct
impacts, but the agreement is not legally binding. Because of this lack
of regulation, we consider inadequate regulatory mechanisms to be a
significant and immediate threat to this species.
E. Other Natural or Manmade Factors Affecting Its Continued Existence
The Anvil Points occurrence, which formerly included several
hundred plants on BLM land, has been reduced to zero plants since 1994
for unknown reasons (CNHP 2009e, p. 1). It appears that the decline of
this occurrence was a result of natural processes including competition
by surrounding native vegetation, which includes Chrysothamnus
viscidiflorus (yellow rabbitbrush) (DeYoung 2008a, p. 1; CNHP 2009e, p.
2). New Penstemon debilis plants grown off site from seeds were
introduced but declined over several years (CNHP 2009e, p. 2).
Monitoring failed to show a cause for the disappearance of P. debilis
(DeYoung 2008a, p. 1).
Penstemon debilis population sizes are small, and the smaller the
population, the more likely extinction is in any given period of time
(Shaffer 1987, p. 70). All occurrences of P. debilis grow on a 17-mi
(27-km) stretch of the rim of the Roan Plateau in
[[Page 35733]]
Garfield County, Colorado (Ewing 2008a, p. 7). The two largest
occurrences are within 2 mi (3 km) of each other (Ewing 2008a, p. 7). A
species with such a small range could be particularly susceptible to
extirpation from a stochastic event such as an earthquake, rockslide,
or severe hail storm (McMullen 1998, p. 3). This increased
susceptibility is due to the likelihood that, although stochastic
events are often localized in severity, such a localized event would
likely impact all occurrences of the species, rather than just a small
portion of the occurrences, as may be expected for a species with a
larger range. For example, the newly discovered Smith Gulch occurrence
is small (12 plants), and because of its positioning in a drainage, has
a high potential for being destroyed by a rain event (DeYoung 2009e, p.
1).
In addition, the fragmentation of P. debilis habitat by human-
related activities threatens to reduce the species to mosaics of small
populations occurring in isolated habitat remnants. Occurrences with
small population size (fewer than 50 individuals) are more likely to
suffer genetic problems such as genetic drift and inbreeding depression
due to losses of individuals in such events (McMullen 1998, p. 3;
Ellstrand & Elam 1993, p. 226). Conversely, if the current population
structure is similar to the historical range, it is possible that P.
debilis has adapted to be less vulnerable to inbreeding depression
(Ellstrand & Elam 1993, p. 225).
Climate change could potentially impact Penstemon debilis.
According to the Intergovernmental Panel on Climate Change (IPCC),
``Warming of the climate system in recent decades is unequivocal, as is
now evident from observations of increases in global average air and
ocean temperatures, widespread melting of snow and ice, and rising
global sea level'' (Bates et al. 2008, p. 15). Average Northern
Hemisphere temperatures during the second half of the 20th century were
very likely higher than during any other 50-year period in the last 500
years and likely the highest in at least the past 1,300 years (IPCC
2007, p. 30). It is very likely that over the past 50 years, cold days,
cold nights, and frosts have become less frequent over most land areas,
and hot days and hot nights have become more frequent. It is likely
that heat waves have become more frequent over most land areas, and the
frequency of heavy precipitation events has increased over most areas
(IPCC 2007, p. 30). As described above, climate modeling is not
currently to the level that we can predict the amount of temperature
and precipitation change within P. debilis's limited range. Therefore,
we generally address what could happen under the current climate
predictions. However, we need further refinement of the current
predictions to draw more reliable conclusions concerning the effects of
climate change on the species.
It is unknown how Penstemon debilis responds to drought; however,
in general, plant numbers decrease during drought years, but recover in
subsequent seasons that are less dry. Drought years could result in a
loss of plants. Changes in the global climate system during the 21st
century are likely to be larger than those observed during the 20th
century. For the next 2 decades, a warming of about 32.4 [deg]F (0.2
[deg]C) per decade is projected (IPCC 2007, p. 45). Afterward,
temperature projections increasingly depend on specific emission
scenarios. Various emissions scenarios suggest that by the end of the
21st century, average global temperatures are expected to increase 33
to 39 [deg]F (0.6 to 4.0 [deg]C) with the greatest warming expected
over land. Localized projections suggest the Southwest may experience
the greatest temperature increase of any area in the lower 48 States.
It is likely that hot extremes, heat waves, and heavy precipitation
will increase in frequency (IPCC 2007, p. 30). There also is high
confidence that many semi-arid areas like the western United States
will suffer a decrease in water resources due to climate change. A 10-
to 30-percent decrease in precipitation in mid-latitude western North
America is projected by the year 2050 based on an ensemble of 12
climate models (Milly et al. 2005, p. 1). When plant populations are
impacted by additional threats during drought years, they may require
several years to recover. Climate change may exacerbate the frequency
and intensity of droughts. Under drought conditions, plants generally
are less vigorous and less successful in reproduction. With small
populations and their inherent genetic risk, lowered reproduction could
result in reduced population viability.
Recent analyses of long-term data sets show accelerating rates of
climate change over the past 2 or 3 decades, indicating that the
extension of species' geographic range boundaries towards the poles or
to higher elevations by progressive establishment of new local
populations will become increasingly apparent in the relatively short
term (Hughes 2000, p. 60). The limited geographic range of the oil
shale substrate that makes up the entire Penstemon debilis habitat
could limit the ability of the species to adapt to changes in climatic
conditions by progressive establishment of new populations.
Incidental disturbance by humans, and stochastic events, such as
drought, landslides, or encroaching vegetation can impact Penstemon
debilis. However the species likely evolved under these factors and we
do not consider them significant immediate threats. Climate change
could exacerbate these factors, causing them to pose a threat to P.
debilis; however the current data are not reliable enough at the local
level for us to draw conclusions regarding the imminence of climate
change threats to P. debilis.
Background--Phacelia submutica
Previous Federal Actions
We included Phacelia submutica as a category 1 candidate species in
the 1980 Review of Plant Taxa for Listing as Endangered or Threatened
Species (45 FR 82480, December 15, 1980). In that notice, category 1
candidates were defined as species for which the Service had
``sufficient information on hand to support the biological
appropriateness of their being listed as Endangered or Threatened
species.'' We changed the candidate status of P. submutica to category
2 on November 28, 1983 (45 FR 82480). On February 21, 1990, we again
identified P. submutica as a category 1 candidate species (55 FR 6184).
In the February 28, 1996, Federal Register (61 FR 7596) all category 1
candidate species became candidates under the current definition. We
assigned P. submutica an LPN of 11. In the 2005 CNOR (70 FR 24870, May
11, 2005) we raised the LPN to 8, to reflect the increasing level of
threats, which are imminent and of moderate magnitude.
On May 11, 2004, we received a petition from the CBD to list, as
endangered, 225 species we previously had identified as candidates for
listing, including Phacelia submutica (CBD 2004, p. 146). Under
requirements in section 4(b)(3)(B) of the Act, the CNOR and the Notice
of Findings on Resubmitted Petitions published by the Service on May
11, 2005 (70 FR 24870), included a finding that the immediate issuance
of a proposed listing rule and the timely promulgation of a final rule
for each of these petitioned species, including P. submutica, was
warranted but precluded by higher priority listing actions, and that
expeditious progress was being made to add qualified species to the
Lists.
On April 28, 2005, the CNE, the Colorado Native Plant Society, and
botanist Steve O'Kane, Jr., Ph.D., submitted a petition to the Service
to
[[Page 35734]]
list Phacelia submutica as endangered or threatened within its known
historical range, and to designate critical habitat concurrent with the
listing (CNE et al. 2005, p. 1). We considered the information in the
petition when we prepared the 2006 CNOR (71 FR 53756, September 12,
2006). Section 4(b)(3)(C) of the Act requires that when we make a
warranted-but-precluded finding on a petition, we are to treat such a
petition as one that is resubmitted on the date of such a finding. We
identified P. submutica as a species for which we made a continued
warranted-but-precluded finding on a resubmitted petition in the
Federal Register on December 6, 2007 (72 FR 69034), and December 10,
2008 (73 FR 75176). We retained an LPN of 8 for the species. In the
2008 notice, we announced that we have not updated our assessment for
this species, as we were developing this proposed listing rule (73 FR
75227).
In each assessment since its recognition as a candidate species
under the current definition in 1996, we determined that publication of
a proposed rule to list the species was precluded by our work on higher
priority listing actions. In 2008, we received funding to initiate the
proposal to list Phacelia submutica.
Species Information
Phacelia submutica is a rare annual plant endemic to clay soils
derived from the Atwell Gulch and Shire members of the Wasatch
Formation in Mesa and Garfield Counties, Colorado. The 25 known
occurrences of the plant occupy a total of 104 ac (42 ha) (CNHP 2009g,
records a-hh; CNHP 2010, records ii-jj; WestWater Engineering 2004, pp.
2; Ewing 2008b, map). Fifteen of the occurrences occupy patches of 1 ac
(0.4 ha) or less. All occurrences consist of small patches of plants on
uniquely suitable soil separated by larger areas of similar soils that
are not occupied by P. submutica. The estimated total number of plants
differs from 84 to 42,926 per year, depending on growing conditions.
The species depends on its seed bank to survive for one or many years,
again depending on growing conditions.
Phacelia submutica was first described by Howell based on specimens
collected from the town of DeBeque, Mesa County, Colorado, in 1911 and
1912 (Howell 1944, pp. 370-371Halse (1981, pp. 121, 129, 130) reduced
it to varietal status as P. scopulina var. submutica. This has been
challenged as incorrect by O'Kane (1987, p. 2), who claimed Halse used
inadequate collection materials, and that P. submutica is
geographically isolated from P. scopulina (O'Kane 1987, p. 2; 1988, p.
462). Phacelia submutica is recognized at the species rank by current
floristic treatments in Weber and Wittmann (1992, p. 98; 2001, p. 203)
and by the Director of the Biota of North America Program (Kartesz
2008, pers. comm.). While the Integrated Taxonomic Information System
(2001) database cites John Kartesz as the expert source for this
species, it is not updated with his currently accepted name for the
species: Phacelia submutica (Kartesz 2008, pers. comm.). Phacelia is
included in the Hydrophyllaceae (waterleaf family). Recent molecular
data suggest that this family should be combined in an expanded
Boraginaceae (borage family). There are conflicting views on the
configuration of this larger Boraginaceae and the lead author of the
family treatment for the upcoming Flora of North America has chosen to
retain the Hydrophyllaceae. Therefore, we will retain Phacelia in the
Hydrophyllaceae family for this proposal.
Phacelia submutica is a low-growing, herbaceous, spring annual
plant with a tap root. The stems are typically 0.8 to 3 in. (2 to 8 cm)
long, often branched at the base and mostly laying flat on the ground
as a low rosette (Howell 1944, pp. 371-372). Stems are often deep red
and more or less hairy with straight andstiff hairs. Leaves are
similarly hairy, reddish at maturity, 0.2 to 0.6 in. (5 to 15 mm) long,
egg-shaped or almost rectangular with rounded corners, with bases
abruptly tapering to a wedge-shaped point. Leaf margins are smooth or
toothed. The yellowish flowers are arranged on somewhat congested
racemes; the stamens are shorter than the corolla throat and the fruits
are not attenuate at the apex (Howell 1944, pp. 371-372).Unlike many
Phacelia species, the stamens do not protrude beyond the petals. The
style is 0.04 to 0.06 in. (1 to 1.5 mm) long and nearly hairless. The
bracts around the seed capsules are 0.2 to 0.4 in. (6 to 10 mm) long.
The elongated egg-shaped seeds are 0.6 to 0.8 in. (1.5 to 2 mm) long
with 6 to 12 crosswise corrugations, and are blackish brown and
somewhat iridescent (Howell 1944, p. 370; Halse 1981, p. 130; O'Kane
1987, p. 3).
Phacelia submutica seeds usually germinate in early April; the
plants may flower between late April and late June. Fruit set is from
mid-May through late June. Individuals finish their life cycle by late
June to early July, after which time they dry up and disintegrate or
blow away, leaving no indication that the plants were present (Burt and
Spackman 1995, p. 23). The species grows in a habitat with wide
temperature fluctuations, long drought periods, and erosive saline
soils. Upon drying,cracks form in the soils. Seeds plant themselves by
falling into the cracks that close when wetted, thus covering the seeds
(O'Kane 1988, p. 20). Plant sites differ in numbers of flowering plants
each year, but there are no observations of site expansion. Seeds do
not appear to disperse to adjacent soils. The ideal conditions required
for seeds of this species to germinate are unknown.
It is likely that the number of seedlings depends not on total
precipitation but on the temperature after the first major storm event
of the season (Levine et al. 2008, p. 795). Phacelia submutica seeds
can remain dormant for 5 years (and probably longer) until the
combination and timing of temperature and precipitation are optimal
(CNHP 2009g, records a-hh). Rare annuals that flower every year are
subject to extinction under fluctuating conditions, because they
exhaust their seed reserves (Meyer et al. 2006, p. 901). Rare ephemeral
annuals, such as P. submutica, that save their seed bank for the best
growing conditions are more resilient to fluctuating conditions. P.
submutica numbers at Horsethief Mountain fluctuated from 1,700 plants
in 1986, to 50 in 1992, up to 1,070 in 2003, and down to only a few
from 2006 to 2008 (CNHP 2009g, records q-t). The fluctuation in numbers
indicates that many seeds remain dormant in the seed bank during years
when few plants can be found.
Phacelia submutica is restricted to exposures of chocolate to
purplish brown and dark charcoal gray clay soils derived from the
Atwell Gulch and Shire members of the Wasatch Formation (Donnell 1969,
pp. M13-M14; O'Kane 1987, p. 10). These expansive clay soils are found
on moderately steep slopes, benches, and ridge tops adjacent to valley
floors of the southern Piceance Basin in Mesa and Garfield Counties,
Colorado. On these slopes and soils, P. submutica usually grows only on
one unique small spot of ground that shows a slightly different texture
and color than the similar surrounding soils (Burt and Spackman 1995,
p. 15). We do not have a precise description of the soil features
required to support this species, but it is clear that the identified
habitat that appears to be suitable will never be fully occupied by the
plants. The currently known occupied habitat where the plants grow
covers about 104 ac (42 ha) (CNHP 2009g, records a-hh; CNHP 2010,
records ii-jj; Ewing 2008b, map; see Table 3 below). About 538 ac (216
ha) of suitable habitat have been mapped (CNHP 2009g, records a-hh;
[[Page 35735]]
CNHP 2010, records ii-jj). A general range, encompassing outlying
occurrences of P. submutica, includes about 86,000 ac (34,800 ha)
(WestWater Engineering 2004, pp. 2, 11; Western Ecological Resource
2008, pp. 54-65, 100; CNHP 2009g, records a-hh; CNHP 2010, records ii-
jj; Ewing 2008b, map). The growing town of DeBeque and about 10 mi
(16.4 km) of interstate highway 70 and the Colorado River bisect the
species' range.
Each occurrence of the species includes one or more sites that
often cover only a few square meters (O'Kane 1987, p. 16). Twenty-five
occurrences of Phacelia submutica, including 37 sites, are documented
(CNHP 2009g, records a-hh; WestWater Engineering 2007, p. 26;, CNHP
2010, records ii-jj). Two of the occurrences were newly recorded in
2009 (CNHP 2010, records ii-jj). All occurrences are separated from one
another by at least 0.6 mi (1 km) of unsuitable habitat or 1.2 mi (2
km) of suitable habitat (CNHP 2007, p, 1). Six of the 25 occurrences
are considered historical records, and three additional occurrences
have historical sites included with occupied habitat data. Historical
occurrences or sites have either not been revisited for at least 20
years, or they were revisited but no plants were found within the last
20 years. Historical records are included in the following table of
occurrences and subsequent analyses of status. The highest total number
of P. submutica plants that have ever been counted at the 25
occurrences is 42,926 (see Table 3 below). The lowest total count was
84 plants (CNHP 2009g, records a-hh; WestWater Engineering 2007, pp.
17, 26; CNHP 2010, records ii, jj).
Phacelia submutica is classified by the CNHP as a G2 and S2
species, which means it is imperiled across its entire range and within
the State of Colorado (CNHP 2007, p. 1). CNHP ranks the quality of each
occurrence on a scale of A to E, with A meaning abundant and viable,
and E meaning extant, but no ranking information is available. There is
also an H rank for historical records. Ranks are based on the viability
and number of plants, the amount of anthropogenic (human) disturbance,
and the amount of weed cover and intact habitat (CNHP 2007, p. 1). No
P. submutica occurrences are ranked A by CNHP. Eleven percent are
ranked B, 33 percent have a C rank, 19 percent have a D rank, and 1
percent has an E rank. The H rank is assigned to 38 percent of the
records (see Table 3 below; CNHP 2009g, records a-hh; CNHP 2010,
records ii-jj).
No occurrences of Phacelia submutica have been found beyond the
described habitat and range, including the two new occurrences recorded
in 2009 (CNHP 2010, records ii, jj). Surveys for P. submutica have been
conducted outward from DeBeque as far as the exposed soil members
extend within the geologic formation (Burt and Spackman 1995, p. 14).
CNHP botanists also conducted surveys for the species as part of the
Garfield County Survey of Critical Biological Resources without finding
P. submutica in known locations or in any new areas (Lyon et al. 2001,
pp. 7, 11). CNHP identified potential habitat beyond the known range of
the species using modeling techniques (Decker et al. 2005, pp. 9, 13,
18). This new potential habitat has not yet been verified in the field
because P. submutica plants have not been present to confirm that it is
occupied habitat.
[[Page 35736]]
Table 3. Occupied and Suitable Habitat for Phacelia submutica (CNHP 2009g, records a-hh, observation dates 1982 to 2008; WestWater Engineering 2007, pp. 16, 17, 19, 27, PVT indicates private
ownership)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Occupied Suitable Land Ownership
Occurrence Sites Site Ranks High Counts Low Counts -----------------------------------------------------------------------------------------------------
ac ha ac ha
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
A--Pyramid Ridge a-b B,H 1,500 4 12 4.8 48 19.4 BLM .....................
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
B--Pyramid Rock c C 2,055 31 20 8 160 64.7 BLM .....................
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
C--Ashmead Draw d-e D,C 215 0 2 0.8 14 5.6 BLM PVT
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
D--Logan Wash* f-h H,H,H 5,817 0 5 2 46 18.6 BLM PVT
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
E--Coon hollow 1 i-l C,H,D,H 10,092 10 4 1.6 63 25 BLM .....................
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
F--Dry Fork m-n C,E 400 34 3 1.2 19 7.6 BLM PVT
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
G--Mount Low o-p H,C 10,000 0 1 0.4 16 6.5 BLM PVT
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
H--Horsethief Mountain q-t B,C,C,C 7,500 4 13 5 67 27 BLM USFS .....................
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
I--Sulphur Gulch 1* u-v H,H 50 0 2 0.8 4 1.6 BLM .....................
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
J--DeBeque West* w C 500 0 1 0.4 8 3 BLM .....................
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
K--Baugh Reservoir* x H 1,000 0 1 0.4 6 2.4 BLM PVT
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
L--Coon Hollow 2* y H 150 0 1 0.4 2 0.8 BLM .....................
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
M--Sulphur Gulch 2* z H 10 0 1 0.4 2 0.8 BLM .....................
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
N--DeBeque South aa D 17 0 1 0.4 4 1.6 BLM .....................
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
O--Moffat Gulch bb D 20 0 1 0.4 2 0.8 BLM .....................
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
P--Horsethief Creek cc D 10 0 1 0.4 2 0.8 BLM .....................
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Q--Jerry Gulch dd C 250 0 1 0.4 3 1.2 PVT
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
R--Sulphur Gulch 3 ee D 25 0 1 0.4 8 3 BLM .....................
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
S--DeBeque East ff D 20 0 1 0.4 24 9.7 BLM .....................
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
T--Roan Creek gg C 195 0 1 0.4 6 2.4 PVT
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
U--Mount Logan hh C 30 0 1 0.4 2 0.8 BLM .....................
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
V--Housetop Mtn., Atwell Gulch + ii B 1,000 0 28 11.3 28 11.3 BLM USFS .....................
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
W--Plateau Creek State Wildlife jj B 1,700 1 1 0.4 2.5 1 State .....................
Area +
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
X--Little Anderson Gulch none none 370 0 1 0.4 1 0.4 PVT
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
TOTALS 37 42, 926 84 104 42 538 216 .....................
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
+ indicates 2009 data (CNHP 2010, records ii-jj) * indicates historical records
[[Page 35737]]
Summary of Factors Affecting Phacelia submutica
A. The Present or Threatened Destruction, Modification, or Curtailment
of Its Habitat or Range
Phacelia submutica is threatened with destruction and modification
of its seed bank and habitat due to ground disturbance from natural gas
exploration, production and pipelines, other energy development,
expansion of roads and utilities, the Westwide Energy Corridor,
increased access to the habitat by off-road vehicles (ORVs), soil
compaction by cattle, and proposed water reservoir projects. All known
occurrences are in the midst of the third largest natural gas producing
area in Colorado (Colorado Oil and Gas Conservation Commission (COGCC
2008, p. 1)).
About 78 percent of the occupied habitat for the species and 67
percent of the entire range of Phacelia submutica are on BLM lands
currently leased for oil and gas drilling (Ewing 2009, map). An
additional 8 ac (3 ha) of occupied P. submutica habitat within about 65
ac (26 ha) of suitable habitat may be opened to natural gas development
by BLM pending development of a new Resource Management Plan for the
Grand Junction Field Office (Ewing 2008a, pers. comm.; BLM 2005b, p.
5). About 3 percent of occupied habitat is on private land owned by
energy companies (Burt and Spackman 1995, p. 25; CNHP 2009g, records f-
g). Although the sale of oil and gas leases by BLM does not directly
impact rare plant habitat, it indicates the intention to continue and
increase the level of development in an area that covers a large
portion of the range of P. submutica. Likewise, COGCC issues permits to
drill that indicate imminent development at specific sites on private
and Federal lands (COGCC 2009b, pp. 1-3). Ten new drilling permits have
been issued, and 178 natural gas wells exist within the 86,000-ac
(34,800-ha) range of P. submutica; 60 of the gas wells are located
within the same 640-ac (259-ha) section as 18 occurrences of occupied
P. submutica habitat (Ewing 2009, map).
The ongoing threats to habitat associated with oil and gas
development include well pad and road construction; installation of
pipelines; and construction of associated buildings, holding tanks, and
other facilities. All of these actions would destroy the seed bank of
Phacelia submutica where they occur on occupied habitat for the
species, and modify suitable habitat so that the plants cannot grow
there, making it likely that the species is in danger of extinction.
The Energy Policy Act of 2005 (42 U.S.C. 15801 et seq.)) directed
the Secretaries of Agriculture, Commerce, Defense, Energy, and Interior
to designate energy transport corridors for oil, gas, and hydrogen
pipelines and electricity transmission and distribution facilities on
Federal lands. A portion of the designated Westwide Energy Corridor
crosses 16,326 ac (6,621 ha) of BLM land within the range of Phacelia
submutica. Nine of the species' 25 occurrences are located within this
energy corridor, including 8 ac (3.2 ha), or about 8 percent, of
occupied habitat and 290 ac (117 ha), or 54 percent, of suitable
habitat (Westwide 2009, map; Ewing 2009, map). Pipeline and
transmission line routes along the energy corridor are not yet
identified. It is not feasible that all suitable habitat for P.
submutica will be avoided as the corridor continues to be developed,
within the next 10 to 20 years.
The energy development activities described above are occurring in
close proximity to Phacelia submutica locations (WestWater Engineering
2004, p. 11). Oil and gas pipelines, well pads, and access roads are
present on six P. submutica sites within occurrences A, D, E, and G
(see Table 3 above; CNHP 2009g, records a, c, i, j, m, q). Frequently
travelled roads bisect and cross the edges of occurrences A, D, and E.
It is likely that some of the seed bank was displaced or destroyed to
build the roads and pipelines. On Federal lands, direct impacts to
known plant locations are mostly being avoided by careful placement of
pipelines, well pads, and associated facilities, due to the candidate
status of the species. Our concern is primarily for the cumulative
impacts of energy development. When all of the oil and gas wells are
connected to the system of local pipelines, roads, and pumping
stations, in combination with cross-country transmission lines and
pipelines, more ROWs will be necessary. Under these conditions, it is
difficult to protect occupied or potential habitat for P. submutica.
Blading of the top few inches of soil during well pad and road
construction, installation of underground pipelines, and construction
of associated buildings, holding tanks, and other facilities alters the
unique soil structure and may disturb, damage, or remove seed banks
that are critical to the survival of this species. Any soil disturbance
on occupied habitat is likely to have a deleterious effect on the in
situ seed bank and, therefore, on successful plant recruitment and
survival of the species in subsequent years (Meyer et al. 2005, p. 22).
Energy development increases access to previously roadless areas,
which encourages ORV traffic to drive on nearby slopes that support
plant habitat. ORV use occurs on BLM lands in the general vicinity of
Phacelia submutica and is recorded within occupied habitat at three
sites within occurrences A and I (seeSee Table 3 above) (CNHP 2009g,
records a, c, w; Mayo 2008d, photo). The vehicles stray from designated
roads to climb hills for recreational purposes. At a site in occurrence
A, the tracks from ORVs have disturbed most of the habitat (Mayo 2008d,
photo). Substantial surface disturbance due to churning by ORV tires
can alter the unique soil structure required by this species, with the
same negative effects on the seed bank as described above.
Cattle trampling within occupied habitat is documented at 5 sites
within occurrences B, F, and G (see Table 3 above; CNHP 2009g, records
d, o, q, r, t). The Ashmead Draw occurrence (C) is severely trampled,
with a poor viability (D) rank (CNHP 2009g, records d-e). Substantial
surface disturbance, due to heavy trampling by cattle, increases soil
compaction and erosion and alters the microhabitat, such as the cracked
soil surface, the species requires.
Livestock-related impacts have resulted in the loss of similar
plant species in other locations. A rare ephemeral annual desert plant
in Idaho (comparable to P. submutica), with highly specific soil
requirements and that depends on its seed bank, went from thousands of
plants in 1995 to no new plants after intensive trampling by cattle
when the soil was wet and seeds were germinating (Meyer et al. 2005, p.
22). The population has not recovered, which is believed to be due to
damage and burying of seeds that prevented them from germinating. After
11 years of monitoring, researchers have clear evidence that ``any form
of soil disturbance is likely to have a deleterious effect on the in
situ seed bank,'' and that all potential habitat for such a species
(like P. submutica) should be managed as if it were currently occupied
(Meyer et al. 2005, p. 22).
Two water reservoir projects known as Roan Creek and Sulphur Gulch
have been proposed in the past within occupied habitat of Phacelia
submutica. The potential reservoir locations would have impacted two
sites within the Sulphur Gulch 1 occurrence (I, u-v in Table 3 above)
and three sites within the Logan Wash occurrence (D, f-g-h in Table 3
above). Recently, both projects were again evaluated as potential
[[Page 35738]]
reservoirs to provide a water supply for instream flows for endangered
fishes in the Colorado River (Friedel 2004, p. 1; Grand River
Consulting Corporation 2009, p. 3). After evaluation of numerous
alternatives, the Sulphur Gulch and Roan Creek projects are no longer
being considered as an alternative for a water supply for endangered
fishes (Bray and Drager 2008, pers. comm.; Grand River Consulting
Corporation 2009, pp. 1-5). The Roan Creek reservoir project was also
proposed by Chevron Shale Oil Company and Getty Oil Exploration Company
to be used for development of oil shale extraction (Chevron-Getty 2002,
pp. 2, 8). These potential reservoirs could permanently destroy plants
and their habitat by project construction and inundation. Since the
proposals have been withdrawn, these threats are not imminent; however,
the sites have been identified as potential reservoir locations that
could be developed within 20 years if warranted by increased demands
for water. Increased demands are likely, depending on the oil shale
market, urban development in Colorado, and less precipitation due to
climate change.
Table 4. Threats to Phacelia submutica Habitat by Source and Occurrence. Occurrences
A to X refer to Table 3 (CNHP 2009g, records a�09hh, observation dates 1982 to 2008;
CNHP 2010, records ii, jj; WestWater Engineering 2007, pp. 16, 17, 19, 27; Ewing 2009, map).
------------------------------------------------------------------------------
Occur-
rence A B C D E F G H I J K L M N O P Q R S T U V W X
------------------------------------------------------------------------------
Energy X X X X X X X
------------------------------------------------------------------------------
West-
Wide
Corri-
dor X X X X X X X X
------------------------------------------------------------------------------
Trampl-
ing X X X X X X X
------------------------------------------------------------------------------
ORV X X X X
------------------------------------------------------------------------------
Roads X X X X X
------------------------------------------------------------------------------
Reser- X X
voirs
------------------------------------------------------------------------------
No Data X X X X X X X X X X
------------------------------------------------------------------------------
We consider destruction, modification and fragmentation of habitat
to be moderate threats to Phacelia submutica throughout its range, due
to ongoing development of oil and gas with associated pipelines,
construction of new road and utility ROWs, road widening, and
construction of access roads. P. submutica habitat is also threatened
by soil modification resulting from livestock trampling and ORV
tracking. These threats are of moderate magnitude because they are
currently affecting at least 14 of the 25 occurrences, and because the
plants and their seed banks occur in small isolated patches that are
easily destroyed by small-scale disturbances. If these threats increase
in frequency or severity, the species is likely to become endangered
within the foreseeable future.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
Overutilization for commercial, recreational, scientific, or
educational purposes is not known to be a threat to Phacelia submutica.
Therefore, we are not addressing this factor in this proposed rule.
C. Disease or Predation
Disease and herbivory are not known to affect Phacelia submutica.
Therefore, we are not addressing this factor in this proposed rule.
D. The Inadequacy of Existing Regulatory Mechanisms
Local Laws and Regulations
Approximately 3 percent of Phacelia submutica occupied habitat
occurs on private lands and another 12 percent on a combination of
private and BLM lands (see Table 3 above). We are not aware of any city
or county ordinances or zoning that provide for protection or
conservation of P. submutica or its habitat on private lands.
State Laws and Regulations
No State regulations protect rare plant species in Colorado. The
CNAP has entered into agreements with BLM to help protect the Pyramid
Rock occurrence of Phacelia submutica, by managing it as a Designated
State Natural Area that is monitored by volunteer stewards. This
management agreement can be terminated with 90-day written notice by
either party. Therefore, we have concluded that the Designated Natural
Area designation alone does not constitute an adequate regulatory
mechanism to conserve P. submutica.
Federal Laws and Regulations
Section 365 of the Energy Policy Act of 2005 (42 U.S.C. 15801 et
seq.) establishes a Federal Permit Streamlining Pilot Project with the
intent to improve the efficiency of processing oil and gas use
authorizations on Federal lands. The two BLM pilot project offices for
Colorado are in the Glenwood Springs and Grand Junction Field Offices,
both of which manage Phacelia submutica habitat. Faster processing of
permits to drill increases the likelihood of ground disturbance on P.
submutica habitat because the plants are ephemeral annuals that can
only be found for about 6 weeks during favorable years, and not all
suitable habitat has been surveyed. When the plants are not present or
previously documented, avoidance of the seed bank depends on field
assessments of suitable habitat. Suitable habitat covers more area than
the ``sweet spots'' where the plants grow, and suitable habitat has no
regulatory protection (BLM 2008d, p. 36). As a result, seed banks and
suitable habitat are increasingly likely to be disturbed or removed
during the process of approving locations for new energy development
projects.
Candidate species are managed by BLM as sensitive species; BLM has
a policy for management of sensitive species that recommends avoidance
and minimization of threats to plants and habitat, as well as habitat
conservation assessments and conservation
[[Page 35739]]
agreements (BLM 2008d, pp. 8, 36-38). No assessments or agreements have
been formalized for Phacelia submutica. As opposed to listed species,
biological assessments or consultation with the Service are not
required for BLM-designated sensitive species during the authorization
process for oil and gas use on Federal lands (BLM 2008d, p. 33).
Phacelia submutica is currently on the sensitive species list for
the USFS, Region 2, which includes all USFS lands in Colorado. The USFS
manages less than 10 percent of the suitable habitat for P. submutica
(Occurrence H, CNHP 2009g, records q, r, s, t). A proposed Lower
Battlement Mesa Research Natural Area to protect the species on the
White River National Forest has not been formally established (Ladyman
2003, pp. 8, 23; Proctor 2010, pers. comm). If established, protection
would include restrictions on ORV use, livestock grazing, and resource
extraction. Trampling of the habitat of P. submutica by cattle has been
observed at three of the four occupied sites on USFS land (CNHP 2009g,
records q, r, t).
The BLM policy of avoidance and minimization of threats to plants
and habitatmay not adequately protect Phacelia submutica because the
plants can only be found for a few weeks during years when growing
conditions have been favorable (Burt and Spackman 1995, p. 8). Thus,
well-intentioned avoidance and minimization measures may not be
implemented if no plants are seen even in areas where subsequent timely
surveys would likely demonstrate a persistent seed bank. Because
available inventories are not all recent, and drilling permits are
expedited, plant occurrences, especially as seed banks, may be
overlooked in the permitting process. The BLM attempts to avoid
disturbances that would adversely affect sensitive species' viability
or trend the species toward Federal listing. This includes avoidance of
suitable habitat if it can be identified as such (BLM 2008d, pp. 8, 36;
BLM 2008e, pp. 5-7). In spite of such efforts, pipeline ROWs exist
within 20 ft (6 m) and 100 ft (30 m) of known P. submutica occurrences
(DeYoung 2009f, pers. comm.). We recommend buffers of 656 ft (200m)
between the edge of disturbance and suitable plant habitat to protect
the plants from destruction by vehicles that stray outside of the
project area, runoff, erosion, dust deposition, or other indirect
effects such as destruction of pollinator nesting habitat.
Five occurrences of Phacelia submutica are located on BLM land in
an area called South Shale Ridge that covers more than a third of the
known range for this species (BLM 2005b, p. 5). Part of South Shale
Ridge was recommended as an ACEC for protection of P. submutica in
1995, but was not designated as an ACEC (Burt and Spackman 1995, p. 36)
in that area. Portions of South Shale Ridge that were withheld from
leasing in the past were leased for oil and gas development in November
2005 (BLM 2005b, p. 5). These leases were subsequently deferred pending
development of a new Resource Management Plan for the Grand Junction
Field Office (Ewing 2008c, pers. comm.; BLM 2005b, p. 5). If the BLM
sells these leases, then 8 ac (3 ha) of occupied P. submutica habitat
within about 65 ac (26 ha) of suitable habitat will be newly opened to
natural gas development in a previously undeveloped area (Ewing 2009,
map).
Pyramid Rock is adjacent to South Shale Ridge, and the Pyramid Rock
occurrence of Phacelia submutica is within the BLM Pyramid Rock ACEC,
including an estimated 31 to 2,055 plants (depending on the year)
within 20 occupied ac (8 ha) on 160 ac (64.7 ha) of suitable habitat
(CNHP 2009g, record c; Wenger 2009, pp. 1-11). The ACEC designation
carries no protection in and of itself (BLM 2006, pp. 2-65).
Stipulations of no new surface occupancy or ground disturbance apply to
this ACEC for protection of candidate, proposed, and listed plant
species. However, due to the possibility of exceptions being granted,
we cannot predict with any degree of certainty what stipulations will
actually be applied to the plant or its habitat that ensure the long
term conservation of the species. BLM installed cable fence in 2007 to
deter ORVs from crossing habitat for a federally threatened cactus
(Sclerocactus glaucus, Colorado hookless cactus) and P. submutica. The
BLM excluded this ACEC from a South Shale Ridge lease sale in 2005
(CNHP 2005, p. 5; BLM 2005b, p. 5). P. submutica plants have not been
directly impacted since the fence was installed, and existing pipeline
and roads remain outside the fence. The ACEC has provided adequate
protection thus far for about 5 percent of the known occupied habitat
for the species (CNHP 2009g, record c).
No adequate regulatory mechanisms currently exist to protect
Phacelia submutica. We consider the inadequacy of existing regulatory
mechanisms to be a significant and ongoing threat to P. submutica
because no formal plans or agreements beyond one ACEC are in place to
protect this plant. Sensitive species designations provide policies to
be carried out with the resources available, but they do not provide
regulations to protect this species from losing habitat and seed banks
to energy development projects, cattle trampling, or ORV traffic over
the next 10 to 20 years. Therefore, this plant is likely to become
endangered within the foreseeable future.
E. Other Natural or Manmade Factors Affecting Its Continued Existence
Climate change is likely to affect Phacelia submutica because seed
germination, seed dormancy, and persistence of the seed bank are all
directly dependent on precipitation and temperature patterns (Levine et
al. 2008, p. 805). As described above, climate modeling is not
currently to the level that we can predict the amount of temperature
and precipitation change within the limited range of P. submutica.
Therefore, this discussion generally addresses what could happen under
the current climate predictions. However, we need further refinement of
the current predictions to draw more reliable conclusions concerning
the effects of climate change on the species. Localized projections
suggest the Southwest, including Colorado, may experience the greatest
temperature increase of any area in the lower 48 States (IPCC 2007, p.
30). It is very likely that hot extremes, heat waves, and heavy
precipitation will increase in frequency (IPCC 2007, p. 46). A 10- to
30-percent decrease in runoff in mid-latitude western North America is
projected by the year 2050 based on an ensemble of 12 climate models
(Milly et al. 2005, p. 1).
Future changes in the timing of the first major spring rains each
year, and temperatures associated with the first major spring rains
each year may more strongly affect germination and persistence of
ephemeral annual plants than changes in season-long rainfall (barring
severe droughts) (Levine et al. 2008, p. 805). Increasing environmental
variance might decrease extinction risk for rare desert ephemeral
plants, because these plants typically rely on extremely good years to
restock the persistent seed bank while extremely bad years have little
impact (Meyer et al. 2006, p. 901). However, extremely long droughts
resulting from climate change, with no good years for replenishing the
seed bank, would likely cause Phacelia submutica to become endangered.
A persistent seed bank enables the species to survive drought. However,
because the soil can remain bare of P. submutica plants for several
years, it is difficult to identify and protect the seemingly unoccupied
habitat that occurs in small, isolated patches that are easily
[[Page 35740]]
destroyed by small-scale disturbances, and can be overlooked during
habitat assessments. The longer the species remains dormant, the less
likely it is that we will know if an area is occupied, reducing our
ability to avoid impacts to the species and protect it from becoming
endangered.
While current climate change predictions are not reliable enough at
the local level for us to draw conclusions about its effects on P.
submutica, it is likely that there will be drying trends in the future
and the seeds will remain dormant for long periods. This would make it
increasingly difficult to detect occupied habitat and avoid destruction
of habitat and more likely that the species will become endangered.
Proposed Determination
We have carefully assessed the best scientific and commercial
information available regarding past, present, and future threats to
Ipomopsis polyantha, Penstemon debilis, and Phacelia submutica. Section
3(6) of the Act defines an endangered species as ``any species which is
in danger of extinction throughout all or a significant portion of its
range,'' and section 3(20) defines a threatened species as ``any
species which is likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its
range.'' Under the Act and our implementing regulations, a species may
warrant listing if it is endangered or threatened throughout all or a
significant portion of its range. Each of the three endemic plant
species proposed for listing in this rule is highly restricted in its
range and the threats occur throughout its range. Therefore, we
assessed the status of each species throughout its entire range. In
each case, the threats to the survival of these species occur
throughout the species' range and are not restricted to any particular
significant portion of that range. Accordingly, our assessment and
proposed determination applies to each species throughout its entire
range. Our proposed determination for each species is presented below.
Ipomopsis polyantha
The species' highly restricted soil requirements and geographic
range make it particularly susceptible to extinction at any time due to
commercial, municipal, and residential development; associated road and
utility improvements and maintenance; heavy livestock use; inadequacy
of existing regulatory mechanisms; fragmented habitat; and prolonged
drought (see Factors A, C, D, and E).
The main occurrence of Ipomopsis polyantha includes 3 mi (4.8 km)
of highway ROW and the private properties that extend 0.25 to 1.2 mi
(0.4 to 1.9 km) on either side of the highway. A smaller occurrence of
about 23 ac (9 ha) includes highway ROWs, private land, and 20 ac (8
ha) of BLM land. The loss or fragmentation of either occurrence would
represent a substantial loss to the viability of the species. Both
known occurrences face ongoing, new, and potential threats, including
commercial, residential and municipal development; associated road and
utility improvements and maintenance; heavy livestock use; inadequacy
of existing regulatory mechanisms; fragmented habitat; and prolonged
drought conditions. The level of threat for I. polyantha is high due to
the direct overlap of rapid land development on 91 percent of the known
suitable habitat. The County and Town Community Plan includes high to
low density development over the species' entire range. Private
landowners are considering commercial and residential development that
would include a parcel at the intersection of US 160 and US 84 that
currently contains the highest density of plants.
Planned development will transform the land adjacent to US 84, at
the center of the species' distribution, from low-density residential/
agricultural land use to commercial, townhome, and higher density
residential use. The cumulative impact of current and planned
development could result in extensive disturbance and destruction of
the remaining habitat within the next 5 to 10 years, putting the
species in danger of extinction.
On the basis of the best available information, we propose to list
Ipomopsis polyantha as an endangered species. Endangered status
reflects the vulnerability of this species to threat factors negatively
affecting it and its limited and restricted habitat. I. polyantha is in
danger of extinction throughout all of its range.
Penstemon debilis
Extremely low numbers and a highly restricted geographic range make
Penstemon debilis particularly susceptible to becoming endangered in
the foreseeable future. Threats to the species and its habitat include
energy development, road maintenance, inadequacy of existing regulatory
mechanisms, and stochastic events (see Factors A, D, and E).
The total estimated number of plants in the 4 viable occurrences is
about 4,000 individuals. It is likely that additional unknown
occurrences exist (Spackman-Panjabi 2008, pers. comm.). Three of the 4
viable occurrences are on lands owned by an energy development company.
The energy development company has pledged to manage development to
minimize impacts to the plants; however, the agreement is not legally
binding. The fourth occurrence, on BLM land, is subject to disturbance
as a result of the ongoing CERCLA project and road maintenance. The
loss of any one occurrence would represent a substantial diminution in
the viability of the species. All four known occurrences face ongoing
or potential threats, including oil and gas development, oil shale
mining and associated impacts, road maintenance, inadequacy of existing
regulatory mechanisms, and potential stochastic events. The level of
threats this poses for Penstemon debilis is considered high due to the
direct overlap of energy resources and all known species occurrences.
The BLM RFD scenario predicts extensive gas development within or near
the species' range within the foreseeable future (BLM 2005b, pp. 4-11).
The BLM RFD, in conjunction with the stated intention of the owner of
the land containing the majority of the plants to develop natural gas
in the vicinity of the plant occurrences, could result in disturbance
to the remaining occurrences within the next 20 years, resulting in the
species being likely to become endangered.
The primary factors threatening Penstemon debilis are: the present
or threatened destruction, modification or curtailment of P. debilis
habitat and range; and the inadequacy of existing regulatory
mechanisms. These factors pose immediate threats to the species because
they have been ongoing. However, these threats are moderate in severity
because actual impacts to individual plants and occupied habitat as a
result have been, and are expected to be limited, and the species is
able to slowly recover and recolonize after disturbance. Therefore, on
the basis of the best available information, we propose to list P.
debilis as a threatened species. Threatened status reflects the
vulnerability of this species to factors that negatively affect the
species and its limited and restricted habitat. Penstemon debilis is
likely to become endangered in the foreseeable future if present
threats increase.
Phacelia submutica
The current range of Phacelia submutica is subject to human-caused
modifications from natural gas exploration and production with
associated expansion of pipelines, roads, and utilities; development
within
[[Page 35741]]
the Westwide Energy Corridor; increased access to the habitat by ORVs;
soil and seed disturbance by cattle (Factor A); and inadequate
regulations (Factor D). The species' small geographic range, highly
specific soil and germination requirements, limited seed dispersal,
fragmented habitat, prolonged seed dormancy, and potential seed bank
depletion by prolonged drought (Factor E) make P. submutica vulnerable
to these threats to an extent that the species may become endangered
within the foreseeable future (10 to 20 years), depending primarily on
the rate of future energy development.
Phacelia submutica occurs on about 104 ac (42 ha) of known occupied
habitat (see Table 3 above) (CNHP 2009g, records a-hh; CNHP 2010,
records ii-jj; WestWater Engineering 2007, pp. 16, 17, 19, 27). All
known occurrences are in the midst of the third largest natural gas-
producing area in Colorado (COGCC 2008, p. 1). Based on the rate of
current and proposed energy development over the entire range of the
species (COGCC 2008 p. 1; COGCC 2009 p. 1; Ewing 2009, map), we
estimate that at least 50 percent of the known habitat has the
potential to be modified or destroyed within 10 to 20 years, thus
making it likely that the species will become endangered within that
time.
The plants and their seed banks occur in small, isolated patches
that are easily destroyed by small-scale disturbances. In the past 20
years, we have found three new occurrences, but no expansion of the
known range of the species (CNHPg 2009, a-hh; CNHP 2010, records ii-jj;
WestWater Engineering 2007, pp. 16, 17, 19, 27). Numbers of flowering
plants fluctuate, but they do not disperse seeds beyond the existing
patches of unique soil that are separated from one another by a few
yards or several miles (Ewing 2008b, map). Any loss of occupied habitat
will be a permanent loss for the foreseeable future, and cause a
decline in the status of the species.
On the basis of the best available information, we propose to list
Phacelia submutica as a threatened species. Threatened status reflects
the vulnerability of this species to factors that negatively affect the
species and its limited and restricted habitat. While not in immediate
danger of extinction, P. submutica has the strong potential to become
an endangered species in the foreseeable future if habitat is lost and
existing seed banks cannot expand to maintain the species' range.
Available Conservation Measures
Conservation tools provided by the Service's Candidate Conservation
Program are available for these three species. Our Candidate
Conservation Program assesses species and develops and facilitates the
use of voluntary conservation tools for collaborative conservation of
candidate and other species-at-risk and their habitats, so that they do
not need the protection of the Act. Candidate Conservation Agreements
(CCAs) could provide adequate regulatory mechanisms for these three
species if such agreements could be finalized by the time of our final
listing determination. The CCAs are voluntary conservation agreements
between the Service and one or more public or private parties that
identify threats to candidate species, plan actions to address threats
and conserve the species, and implement conservation measures.
Because the three species are narrowly distributed on lands owned
by a relatively small number of landowners, we believe that the
development of CCAs with the BLM and with private entities and State
and local agencies could be effective in addressing the threats. We are
open to working with any landowners on developing such plans to assure
the conservation of these species. Any such agreement finalized before
our listing decision will be evaluated according to our Policy on
Evaluating Conservation Efforts When Making Listing Decisions (68 FR
15100, March 28, 2003) to determine if the agreement constitutes an
adequate regulatory mechanism.
Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing results in public awareness and
conservation by Federal, State, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and requires that recovery actions be carried out for all listed
species. The protection measures required of Federal agencies and the
prohibitions against certain activities are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Subsection 4(f) of the Act requires the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The recovery planning process involves the
identification of actions that are necessary to halt or reverse the
species' decline by addressing the threats to its survival and
recovery. The goal of this process is to restore listed species to a
point where they are secure, self-sustaining, and functioning
components of their ecosystems.
Recovery planning includes the development of a recovery outline
shortly after a species is listed, preparation of a draft and final
recovery plan, and revisions to the plan as significant new information
becomes available. The recovery outline guides the immediate
implementation of urgent recovery actions and describes the process to
be used to develop a recovery plan. The recovery plan identifies site-
specific management actions that will achieve recovery of the species,
measurable criteria that determine when a species may be downlisted or
delisted, and methods for monitoring recovery progress. Recovery plans
also establish a framework for agencies to coordinate their recovery
efforts and provide estimates of the cost of implementing recovery
tasks. Recovery teams (comprised of species experts, Federal and State
agencies, non-government organizations, and stakeholders) are often
established to develop recovery plans. When completed, the recovery
outline, draft recovery plan, and the final recovery plan will be
available on our website (http://www.fws.gov/endangered), or from our
Western Colorado Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, non-governmental organizations, businesses, and
private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. Achieving recovery of these species requires cooperative
conservation efforts on private and public lands.
If these three plant species are listed, funding for recovery
actions will be available from a variety of sources, including Federal
budgets, State programs, and cost share grants for non-Federal
landowners, the academic
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community, and nongovernmental organizations. In addition, under
section 6 of the Act, the State of Colorado would be eligible for
Federal funds to implement management actions that promote the
protection and recovery of Ipomopsis polyantha, Penstemon debilis, and
Phacelia submutica. Information on our grant programs that are
available to aid species recovery can be found at: http://www.fws.gov/grants.
Although Ipomopsis polyantha, Penstemon debilis, and Phacelia
submutica are only proposed for listing under the Act at this time,
please let us know if you are interested in participating in recovery
efforts for these species. Additionally, we invite you to submit any
new information on these species whenever it becomes available and any
information you may have for recovery planning purposes to the person
listed under FOR FURTHER INFORMATION CONTACT.
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as
endangered or threatened and with respect to its critical habitat, if
any is designated. Regulations implementing this interagency
cooperation provision of the Act are codified at 50 CFR part 402.
Section 7(a)(4) of the Act requires Federal agencies to confer with the
Service on any action that is likely to jeopardize the continued
existence of a species proposed for listing or result in destruction or
adverse modification of proposed critical habitat. If a species is
listed, section 7(a)(2) of the Act requires Federal agencies to ensure
that activities they authorize, fund, or carry out are not likely to
jeopardize the continued existence of the species or destroy or
adversely modify its critical habitat. If a Federal action may affect a
listed species or its critical habitat, the responsible Federal agency
must enter into formal consultation with the Service.
Federal agency actions within the habitat of these species that may
require conference or consultation or both, as described in the
preceding paragraph, include the following for each species:
Ipomopsis polyantha--Permitting of grazing and authorization of
utility or access ROWs by the BLM. Other types of actions that may
require consultation include provision of Federal funds to State and
private entities through Federal programs, such as Colorado Department
of Transportation highway construction or improvement projects, Housing
and Urban Development Tax Credit Assistance Program, the Service's
Landowner Incentive Program, and various grants administered by the
U.S. Department of Agriculture and Natural Resources Conservation
Service (USDA-NRCS)
Penstemon debilis--Oil and gas leasing, exploration, and
permitting; oil shale research; authorization of transmission towers,
pipelines and power lines; reclamation actions; travel management; and
authorization of road maintenance by the BLM. Other types of actions
that may require consultation include provision of Federal funds to
State and private entities through Federal programs, such as the
Service's Landowner Incentive Program, State Wildlife Grant Program,
and Federal Aid in Wildlife Restoration program, as well as the various
grants administered by USDA-NRCS.
Phacelia submutica--Oil and gas leasing, exploration, permitting,
development, pipelines and transmission lines; permitting of grazing;
authorization of travel routes; road construction or maintenance by the
BLM or the USFS; and authorization of pipeline and power line routes
within the Westwide Energy Corridor. Other types of actions that may
require consultation include water reservoir construction and provision
of Federal funds to State and private entities through Federal
programs, such as the Service's Landowner Incentive Program, and
various grants administered by USDA-NRCS.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to threatened and
endangered plants. All prohibitions of section 9(a)(2) of the Act,
implemented by 50 CFR 17.61 and 50 CFR 17.71, apply. These
prohibitions, in part, make it illegal for any person subject to the
jurisdiction of the United States to import or export, transport in
interstate or foreign commerce in the course of a commercial activity,
sell or offer for sale in interstate or foreign commerce, or remove and
reduce the species to possession from areas under Federal jurisdiction.
In addition, for plants listed as endangered, the Act prohibits the
malicious damage or destruction on areas under Federal jurisdiction and
the removal, cutting, digging up, damaging, or destroying of such
plants in knowing violation of any State law or regulation, including
State criminal trespass law. Certain exceptions to the prohibitions
apply to agents of the Service and State conservation agencies.
Colorado's Endangered Species law does not currently cover plants and
does not provide protection to Ipomopsis polyantha, Penstemon debilis,
and Phacelia submutica. Therefore, listing under the Act will offer
additional protection to these species.
The Act, 50 CFR 17.62, and 50 CFR 17.72 also provide for the
issuance of permits to carry out otherwise prohibited activities
involving endangered and threatened plants under certain circumstances.
Such permits are available for scientific purposes and to enhance the
propagation or survival of the species. We anticipate that the only
permits that would be sought or issued for Ipomopsis polyantha,
Penstemon debilis, and Phacelia submutica would be in association with
research and recovery efforts, as these species are not common in
cultivation or in the wild. Requests for copies of the regulations
regarding listed species and inquiries about prohibitions and permits
may be addressed to U.S. Fish and Wildlife Service, Ecological
Services, P.O. Box 25486 - DFC, Denver, CO 80225-0486 (telephone 303-
236-4256; facsimile 303-236-0027).
Critical Habitat
Background
Critical habitat is defined in section 3(5)(A) of the Act as:
(i) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(I) essential to the conservation of the species and
(II) which may require special management considerations or
protection; and
(ii) specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3(3) of the Act, means to
use and the use of all methods and procedures that are necessary to
bring an endangered or threatened species to the point at which the
measures provided under the Act are no longer necessary. Such methods
and procedures include, but are not limited to, all activities
associated with scientific resources management such as research,
census, law enforcement, habitat acquisition and maintenance,
propagation, and transplantation.
Critical habitat receives protection under section 7 of the Act
through the prohibition against Federal agencies carrying out, funding,
or authorizing the destruction or adverse modification of critical
habitat. Section 7(a)(2) requires consultation on Federal actions that
[[Page 35743]]
may affect critical habitat. The designation of critical habitat does
not affect land ownership or establish a refuge, wilderness, reserve,
preserve, or other conservation area. Such designation does not allow
the government or public to access private lands. Such designation does
not require implementation of restoration, recovery, or enhancement
measures by non-Federal landowners. Where a landowner seeks or requests
Federal agency funding or authorization for an action that may affect a
listed species or critical habitat, the consultation requirements of
section 7(a)(2) of the Act would apply, but even in the event of a
destruction or adverse modification finding, the Federal action
agency's and the applicant's obligation is not to restore or recover
the species, but to implement reasonable and prudent alternatives to
avoid destruction or adverse modification of critical habitat.
For inclusion in a critical habitat designation, the habitat within
the geographical area occupied by the species at the time it was listed
must contain the physical and biological features essential to the
conservation of the species, and be included only if those features may
require special management considerations or protection. Critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, habitat areas that provide
essential life cycle needs of the species (areas on which are found the
physical and biological features laid out in the appropriate quantity
and spatial arrangement for the conservation of the species). Under the
Act and regulations at 50 CFR 424.12, we can designate critical habitat
in areas outside the geographical area occupied by the species at the
time it is listed only when we determine that those areas are essential
for the conservation of the species and that designation limited to
those areas occupied at the time of listing would be inadequate to
ensure the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific, commercial, and economic data
available. Further, our Policy on Information Standards under the Act
(published in the Federal Register on July 1, 1994 (59 FR 34271)), the
Information Quality Act (section 515 of the Treasury and General
Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554;
H.R. 5658)), and our associated Information Quality Guidelines, provide
criteria, establish procedures, and provide guidance to ensure that our
decisions are based on the best scientific data available. They require
our biologists, to the extent consistent with the Act and with the use
of the best scientific data available, to use primary and original
sources of information as the basis for recommendations to designate
critical habitat.
When we determine which areas should be designated as critical
habitat, our primary source of information is generally the information
developed during the listing process for the species. Additional
information sources may include the recovery plan for the species,
articles in peer-reviewed journals, conservation plans developed by
States and counties, scientific status surveys and studies, biological
assessments, or other unpublished materials and expert opinion or
personal knowledge.
Habitat is often dynamic, and species may move from one area to
another over time. Furthermore, we recognize that critical habitat
designated at a particular point in time may not include all of the
habitat areas that we may later determine are necessary for the
recovery of the species. For these reasons, a critical habitat
designation does not signal that habitat outside the designated area is
unimportant or may not be required for recovery of the species.
Areas that are important to the conservation of the species, but
are outside the critical habitat designation, will continue to be
subject to conservation actions we implement under section 7(a)(1) of
the Act. Areas that support occurrences also are subject to the
regulatory protections afforded by the section 7(a)(2) jeopardy
standard, as determined on the basis of the best available scientific
information at the time of the agency action. Federally funded or
permitted projects affecting listed species outside their designated
critical habitat areas may still result in jeopardy findings in some
cases. Similarly, critical habitat designations made on the basis of
the best available information at the time of designation will not
control the direction and substance of future recovery plans, habitat
conservation plans, or other species conservation planning efforts if
new information available at the time of these planning efforts calls
for a different outcome.
Prudency Determination
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary designate critical habitat at the time
the species is determined to be endangered or threatened. Our
regulations (50 CFR 424.12(a)(1)) state that the designation of
critical habitat is not prudent when one or both of the following
situations exist: (1) The species is threatened by taking or other
human activity, and identification of critical habitat can be expected
to increase the degree of threat to the species, or (2) such
designation of critical habitat would not be beneficial to the species.
There is no documentation that Ipomopsis polyantha, Penstemon
debilis, or Phacelia submutica are threatened by collection or other
intentional taking. In the absence of finding that the designation of
critical habitat would increase threats to a species, if there are any
benefits to a critical habitat designation, then a designation is
prudent. The potential benefits include: (1) Triggering consultation
under section 7 of the Act, in new areas for actions in which there may
be a Federal nexus where it would not otherwise occur because, for
example, it is or has become unoccupied or the occupancy is in
question; (2) focusing conservation activities on the most essential
features and areas; (3) providing educational benefits to State or
county governments or private entities; and (4) preventing people from
causing inadvertent harm to the species because they do not know it may
be present.
The primary regulatory effect of critical habitat is the section
7(a)(2) requirement that Federal agencies refrain from taking any
action that destroys or adversely affects critical habitat. At present,
the only known extant individuals of Ipomopsis polyantha occur on
private, town, county, and BLM lands, and on Federal highway ROWs. Most
of the known individuals of Penstemon debilis occur on private land;
however, approximately 18 percent of the individuals occur on Federal
lands. Approximately 3 percent of known occupied habitat for Phacelia
submutica occurs on private lands and another 12 percent on a
combination of private and BLM lands, with the remaining 85 percent
occurring on BLM and USFS lands. Lands that may be designated as
critical habitat for these species in the future may be subject to
Federal actions that trigger the section 7 consultation requirement.
All projects taking place on Federal lands that may affect critical
habitat would require consultation. Projects on private land would
require consultation if they include a Federal action, such as the
granting of Federal monies for conservation projects or the need for
Federal permits for projects.
[[Page 35744]]
There also may be some educational or informational benefits to the
designation of critical habitat. Educational benefits include the
notification of landowners, land managers, and the general public of
the importance of protecting the habitat of this species. In the case
of I. polyantha, P. debilis, and P. submutica, these aspects of
critical habitat designation would potentially benefit the conservation
of these species. Therefore, because we have determined that the
designation of critical habitat will not likely increase the degree of
threat to these species and may provide some measure of benefit, we
find that designation of critical habitat is prudent for I. polyantha,
P. debilis, and P. submutica.
Critical Habitat Determinability
As stated above, section 4(a)(3) of the Act requires the
designation of critical habitat concurrently with the species' listing
``to the maximum extent prudent and determinable.'' Our regulations at
50 CFR 424.12(a)(2) state that critical habitat is not determinable
when one or both of the following situations exist:
(i) Information sufficient to perform required analyses of the
impacts of the designation is lacking, or
(ii) The biological needs of the species are not sufficiently well
known to permit identification of an area as critical habitat.
When critical habitat is not determinable, the Act provides for an
additional year to publish a critical habitat designation (16 U.S.C.
1533(b)(6)(C)(ii)).
In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and
the regulations at 50 CFR 424.12, in determining which areas occupied
by the species at the time of listing to designate as critical habitat,
we consider the physical and biological features essential to the
conservation of the species which may require special management
considerations or protection. These include, but are not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, and rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical geographical and ecological
distributions of a species.
We are currently unable to identify the essential physical and
biological features for Ipomopsis polyantha, Penstemon debilis, and
Phacelia submutica, because information on the physical and biological
features that are considered essential to the conservation of these
species is not sufficiently known at this time. Explanations for each
species follow:
Ipomopsis polyantha--As discussed in the ``Species Information''
section of this proposed rule, the historical range of the species is
unknown, and access to potential habitat on private land is restricted.
The role of disturbance in the species' spread and persistence is
currently unknown. Our ability to translocate the species is limited at
this time. Key features of the plant's life history, such as longevity,
dispersal mechanisms, or vectors for pollination, are not entirely
known. Much of the plant community where the remaining individuals of
I. polyantha are found has been highly modified by the presence of
grazing livestock and road maintenance activities. The poor viability
of species' occurrences observed in recent years indicates that current
conditions are not sufficient to meet the basic biological requirements
of this species. Although we can surmise that habitat degradation from
threats described under Factor A above has contributed to the decline
of the species, we do not know specifically what essential physical or
biological features of that habitat are currently lacking for I.
polyantha. Because we are unable to identify the physical and
biological features essential to the conservation of I. polyantha, we
are unable to identify areas that contain these features.
Penstemon debilis--Although we know the specific elevation, soil
and geology types to which this species is restricted, there is much
more suitable habitat in Western Colorado than that known to be
occupied by P. debilis. Further scientific studies are needed to
determine the specific factors, unique to the occupied habitat, to
better determine habitats suitable for designation as critical habitat.
Phacelia submutica--Specific components of occupied versus non-
occupied sites and soils have not been analyzed for the Atwell Gulch
and Shire members of the Wasatch Formation where the species occurs.
Key features of the plant's life history, such as longevity of the seed
bank, dispersal mechanisms, or vectors for pollination, are unknown.
Pollinator requirements for habitat or alternate hosts have not been
identified. Because we are unable to identify the physical and
biological features essential to the conservation of P. submutica, we
are unable to identify areas that contain these features.
Although we have determined that the designation of critical
habitat is prudent for Ipomopsis polyantha, Penstemon debilis, and
Phacelia submutica, the biological needs of these species are not
sufficiently well known to identify the physical and biological
features that may be essential for the conservation of these species,
or those areas essential to the conservation of these species.
Additionally, we have not gathered sufficient economic and other data
on the impacts of a critical habitat designation. These factors must be
considered as part of a designation procedure. Therefore, we find that
critical habitat for I. polyantha, P. debilis, and P. submutica is not
determinable at this time. We intend to continue gathering information
regarding the essential life-history requirements of these species to
facilitate identification of essential features and areas. Field
research in 2010 will increase our understanding of pollinator needs
and soil characteristics for P. submutica, of development status in I.
polyantha habitat, and of the habitat for the new occurrence of P.
debilis found in 2009. We will evaluate the needs of I. polyantha, P.
debilis, and P. submutica within the ecological context of the broader
ecosystems in which they occur, similar to the approach that we
recently used in our final designation of critical habitat for 47
species endemic to the island of Kauai (October 21, 2008; 73 FR 62592),
and will consider the utility of using this approach for these species
as well.
Peer Review
In accordance with our joint policy published in the Federal
Register on July 1, 1994 (59 FR 34270), we will seek the expert
opinions of at least three appropriate and independent specialists
regarding this proposed rule. The purpose of peer review is to ensure
that our determination of status for these species is based on
scientifically sound data, assumptions, and analyses. We will invite
these peer reviewers to comment, during the public comment period, on
the specific assumptions and conclusions regarding the proposal to list
Ipomopsis polyantha as endangered and Penstemon debilis and Phacelia
submutica as threatened, and our proposed determination regarding
critical habitat for these species. We will send copies of this
proposed rule to the peer reviewers immediately following publication
in the Federal Register.
We will consider all comments and information we receive during the
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comment period on this proposed rule during preparation of a final
rulemaking. Accordingly, the final decision may differ from this
proposal.
Public Hearings
The Act provides for one or more public hearings on this proposal,
if requested. Requests must be received within 45 days after the date
of publication of this proposal in the Federal Register. Such requests
must be sent to the address shown in the FOR FURTHER INFORMATION
CONTACT section. We will schedule one or more public hearings on this
proposal, if any are requested, and announce the dates, times, and
places of those hearings, as well as how to obtain reasonable
accommodations, in the Federal Register and local newspapers at least
15 days before the hearing(s).
Persons needing reasonable accommodations to attend and participate
in a public hearing should contact the Western Colorado Ecological
Services Field Office at 970-243-2778, as soon as possible. To allow
sufficient time to process requests, please call no later than 1 week
before the hearing date. Information regarding this proposed rule is
available in alternative formats upon request.
Required Determinations
Clarity of the Rule
Executive Order 12866 requires each agency to write regulations
that are easy to understand. We invite your comments on how to make
this rule easier to understand including answers to questions such as
the following: (1) Are the requirements in the rule clearly stated? (2)
Does the rule contain technical language or jargon that interferes with
its clarity? (3) Does the format of the rule (grouping and order of
sections, use of headings, paragraphing, etc.) aid or reduce its
clarity? (4) Would the rule be easier to understand if it were divided
into more (but shorter) sections? (5) Is the description of the rule in
the SUPPLEMENTARY INFORMATION section of the preamble helpful in
understanding the emergency rule? What else could we do to make the
rule easier to understand?
Send a copy of any comments that concern how we could make this
rule easier to understand to Office of Regulatory Affairs, Department
of the Interior, Room 7229, 1849 C Street, NW., Washington, D.C. 20240.
You also may e-mail the comments to this address: [email protected].
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This proposed rule does not contain any new collections of
information that require approval by Office of Management and Budget
(OMB) under the Paperwork Reduction Act. This rule would not impose new
recordkeeping or reporting requirements on State or local governments,
individuals, businesses, or organizations. We may not conduct or
sponsor and you are not required to respond to a collection of
information unless it displays a currently valid OMB control number.
National Environmental Policy Act
We have determined that Environmental Assessments and Environmental
Impact Statements, as defined under the authority of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), need not be
prepared in connection with regulations adopted under section 4(a) of
the Act. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244).
References Cited
A complete list of all references cited in this proposed rule is
available on the Internet at http://www.regulations.gov or upon request
from the Field Supervisor, Western Colorado Ecological Services Field
Office (see FOR FURTHER INFORMATION CONTACT section).
Author(s)
The primary authors of this document are staff members of the
Western Colorado Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. In Sec. 17.12(h) add entries for Ipomopsis polyantha, Penstemon
debilis, and Phacelia submutica, in alphabetical order under FLOWERING
PLANTS, to the List of Endangered and Threatened Plants, as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
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Species
------------------------------------------------ Historic range Family Status When listed Critical Special rules
Scientific name Common name habitat
--------------------------------------------------------------------------------------------------------------------------------------------------------
...............
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FLOWERING PLANTS
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* * * * * * *
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Ipomopsis polyantha Pagosa skyrocket U.S.A (CO) Polemoniaceae E NA NA
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
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Penstemon debilis Parachute U.S.A. (CO) Plantaginaceae T NA NA
beardtongue
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* * * * * * *
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[[Page 35746]]
Phacelia submutica DeBeque phacelia U.S.A. (CO) Hydrophyllaceae T NA NA
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
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* * * * *
Dated: June 8, 2010
Jeffrey L. Underwood,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2010-15251 Filed 6-22-10; 8:45 am]
BILLING CODE 4310-55-S