[Federal Register Volume 84, Number 177 (Thursday, September 12, 2019)]
[Proposed Rules]
[Pages 48090-48094]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-19768]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R6-ES-2019-0029; 4500030114]
RIN 1018-BD71


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment periods.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
reopening the comment periods on our August 6, 2013, proposed rules to 
list Graham's beardtongue (Penstemon grahamii) and White River 
beardtongue (Penstemon scariosus var. albifluvis) as threatened species 
throughout their ranges and to designate critical habitat for these two 
plant species under the Endangered Species Act of 1973, as amended 
(Act). We are reopening the comment period for 30 days to give all 
interested parties further opportunity to comment on the proposed 
rules. Comments previously submitted need not be resubmitted as they 
are already incorporated into the public record and will be fully 
considered in the final rule.

DATES: The comment periods on the August 6, 2013, proposed rules (78 FR 
47590 and 78 FR 47832) are reopened. We will accept comments received 
or postmarked on or before October 15, 2019. Comments submitted 
electronically using the Federal eRulemaking Portal (see ADDRESSES, 
below) must be received by 11:59 p.m. Eastern Time on the closing date.

ADDRESSES: Document availability: You may view the August 6, 2013, 
proposed rules and supporting materials associated with this reopened 
public comment period and described below under SUPPLEMENTARY 
INFORMATION at http://www.regulations.gov under Docket No. FWS-R6-ES-
2013-0081 (for

[[Page 48091]]

the proposed listing rule) or FWS-R6-ES-2013-0082 (for the proposed 
critical habitat rule), or from the office listed in FOR FURTHER 
INFORMATION CONTACT.
    New information related to this proposed rule and described below 
in this document may be accessed at http://www.regulations.gov under 
Docket No. FWS-R6-ES-2019-0029.
    Comment submission: You may submit comments by one of the following 
methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R6-ES-2019-0029, 
which is the docket number for this proposed action. Then click on the 
Search button. On the resulting page, in the Search panel on the left 
side of the screen, under the Document Type heading, click on the 
Proposed Rules link to locate this document. You may submit a comment 
by clicking on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R6-ES-2019-0029; U.S. Fish and Wildlife 
Service, MS: BPHC; 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested, below, for more information).

FOR FURTHER INFORMATION CONTACT: Larry Crist, Field Supervisor, U.S. 
Fish and Wildlife Service, Utah Ecological Services Field Office, 2369 
West Orton Circle, Suite 50, West Valley City, UT 84119; telephone 801-
975-3330. Persons who use a telecommunications device for the deaf may 
call the Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

Species Information and Previous Federal Actions

    Please refer to the August 6, 2013, proposed listing rule at 78 FR 
47590 for information about Graham's beardtongue and White River 
beardtongue's taxonomy, description, distribution, habitat, and 
biology, as well as a detailed description of previous Federal actions 
concerning Graham's beardtongue and White River beardtongue prior to 
2013.
    On August 6, 2013, we published a proposed rule to list Graham's 
beardtongue and White River beardtongue as threatened species under the 
Act (78 FR 47590). We also published an August 6, 2013, proposed rule 
to designate critical habitat for both species (78 FR 47832). Upon 
publication of our proposed rules, we opened a 60-day comment period 
that closed on October 7, 2013. Following publication of our proposed 
rules, the same parties (Bureau of Land Management (BLM); U.S. Fish and 
Wildlife Service; Utah Department of Natural Resources; State of Utah 
School and Institutional Trust Lands Administration (SITLA); Uintah 
County, Utah) that had drafted a 2007 Conservation Agreement (CA) for 
Graham's beardtongue and White River beardtongue reconvened to evaluate 
species' surveys and distribution information and reassess the 
conservation needs of both Graham's and White River beardtongues. Based 
on this evaluation, the parties completed a new conservation agreement 
(2014 CA, entire) that specifically addressed the threats identified in 
our August 6, 2013, proposed rule to list the two species (78 FR 
47590). Additional signatories to the 2014 CA included the Utah Public 
Lands Policy Coordination Office (PLPCO) and Rio Blanco County, 
Colorado.
    In the 2014 CA, the parties committed to conservation actions 
including establishing 17,957 hectares (ha) (44,373 acres (ac)) of 
occupied and unoccupied suitable habitat as protected conservation 
areas with limited surface disturbance and avoidance of Graham's and 
White River beardtongue plants by 91.4 meters (m) (300 feet (ft)). 
Additionally, BLM agreed to avoid surface disturbances within 91.4 m 
(300 ft) of Graham's and White River beardtongue plants within and 
outside of conservation areas on BLM land. The parties also developed 
conservation measures to address the cumulative impacts from livestock 
grazing, invasive weeds, small population sizes, and climate change by 
continuing species monitoring, monitoring climate, reducing impacts 
from grazing when and where detected, and controlling invasive weeds.
    On May 6, 2014, we announced the reopening of the public comment 
period on our August 6, 2013, proposed listing and proposed designation 
of critical habitat rules until July 7, 2014 (79 FR 25806). In that 
document, we also announced the availability of a draft economic 
analysis (DEA), draft environmental assessment (EA), draft 2014 CA, and 
amended required determinations section of the proposal. We also 
announced the availability of 2013 survey results for Graham's and 
White River beardtongue plants and our intent to hold a public 
information meeting and public hearing.
    On August 6, 2014, we withdrew the proposed rule to list Graham's 
beardtongue and White River beardtongue as threatened species under the 
Act (79 FR 46042). This withdrawal was based on our conclusion that the 
threats to the species as identified in the proposed rule were no 
longer as significant as we previously determined. We based this 
conclusion on our analysis of new information concerning current and 
future threats and conservation efforts. As a result, we also withdrew 
our associated proposed rule to designate critical habitat for these 
species.

Litigation

    On March 26, 2015, a complaint was filed in the District Court for 
the District of Colorado by Rocky Mountain Wild, Center for Biological 
Diversity, Utah Native Plant Society, Southern Utah Wilderness 
Alliance, Grand Canyon Trust, Western Resource Advocates, and Western 
Watersheds Project challenging the withdrawal of the proposal to list 
Graham's beardtongue and White River beardtongue. The State of Utah, 
SITLA and PLPCO, and Uintah County, Utah, intervened in the litigation. 
On October 25, 2016, the court found that the withdrawal was contrary 
to the Act because (1) we concluded that yet-to-be-enacted regulatory 
and non-regulatory measures mandated by the 2014 CA were ``existing 
regulatory mechanisms''; (2) we failed to account for the 2014 CA's 
expiration when determining whether the beardtongues face material 
threats in the ``foreseeable future''; and (3) we took into account 
economic considerations when imposing a 91.4-m (300-foot) buffer zone 
around each beardtongue. However, before entering final judgment, the 
court ordered that the parties meet to discuss whether the 2014 CA 
could be modified in a manner satisfactory to Plaintiffs. Those 
meetings occurred, but in a December 15, 2017, Joint Status Report to 
the court, the parties reported that we were unsuccessful at reaching 
agreement. Therefore, on December 18, 2017, the court entered final 
judgment, vacating our August 6, 2014, withdrawal, and reinstating the 
proposed listing and critical habitat rules.
    As a result, the August 6, 2013, proposed listing and critical 
habitat rules (collectively referred to as the 2013 proposed rules) for 
Graham's beardtongue and White River beardtongue are now reinstated, 
and both species are proposed species for the purposes of consultation 
under section 7 of the Act. This document notifies the public that we 
are reopening the comment periods on the 2013

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proposed rules (78 FR 47590 and 78 FR 47832). We also announce that we 
will be reevaluating the status of both species to determine whether 
they meet the definition of endangered or threatened species under the 
Act, or whether they are not warranted for listing. Any listing 
determination we make must be made based on the best available 
information.
    We invite the public to comment on the 2013 proposed rules, and we 
request new information regarding Graham's beardtongue and White River 
beardtongue that has become available since the publication of the 
proposed rules to inform this evaluation. As described in more detail 
below, new survey and monitoring information have become available to 
us since the publication of our 2013 proposed rules. In addition, we 
worked with partners to complete a final 2014 CA and 2018 addendum and 
modified conservation areas under the 2014 CA.

New Survey Information

    In 2013, our range-wide population estimates for Graham's 
beardtongue and White River beardtongue were 31,702 and 11,423, 
respectively, and all plants known at the time for the two species were 
included within our proposed critical habitat units. Since publication 
of our 2013 proposed rules, we have received additional survey 
information for Graham's beardtongue and White River beardtongue that 
resulted in a larger total population size for the two species and a 
larger range for White River beardtongue. For Graham's beardtongue, we 
now know of an additional 24,118 plants, which brings our 2018 range-
wide population estimate to 55,820 plants. A total of 43,464 Graham's 
beardtongue plants (78 percent of the total population) now occur 
inside of the August 6, 2013, proposed critical habitat units, an 
increase of 11,762 plants since 2013 (Table 1). A total of 28,085 
Graham's beardtongue plants (50 percent of the total population) now 
occur within designated conservation areas that were identified in the 
2014 CA, an increase of 2,309 plants since 2014. Designated 
conservation areas are subject to surface disturbance caps for the 
duration of the 2014 CA. For more details on designated conservation 
areas, see the 2014 CA.

   Table 1--Graham's and White River Beardtongues 2013 and 2018 Plant
Abundance Inside and Outside of the 2013 Proposed Critical Habitat (PCH)
                               Boundaries
------------------------------------------------------------------------
                                             Graham's       White river
                                            beardtongue     beardtongue
       Year           Number of plants      (percent of     (percent of
                                              total)          total)
------------------------------------------------------------------------
2013..............  Inside 2013 PCH.....          31,702          11,423
                                                  (100%)          (100%)
                    Outside of 2013 PCH.               0               0
                                                    (0%)            (0%)
                                         -------------------------------
                       Total............          31,702          11,423
------------------------------------------------------------------------
2018..............  Inside 2013 PCH.....          43,464          19,194
                                                   (78%)           (59%)
                    Outside of 2013 PCH.          12,356          13,218
                                                   (22%)           (41%)
                                         -------------------------------
                       Total............          55,820          32,412
------------------------------------------------------------------------

    For White River beardtongue, we now know of an additional 20,989 
plants, which brings our 2018 range-wide population estimate to 32,412 
plants. Based on our updated understanding of the population and its 
distribution, a total of 19,194 plants (59 percent of the total 
population) occur inside of our proposed critical habitat. In addition, 
a total of 23,954 plants (74 percent of the total population) occur 
within designated conservation areas that were identified in the 2014 
CA, an increase of 14,724 plants since 2014 (Table 1).
    Maps of plant locations are available at http://www.regulations.gov 
under Docket No. FWS-R6-ES-2019-0029 and at https://www.fws.gov/mountain-prairie/es/grahamsAndWhiteRiverBeardTongue.php by clicking 
Recent Actions & Links at the bottom of the page. We request public 
comments on these data and how they should be considered for the 
designation of critical habitat, and how this information might impact 
our assessment of the species' status under the Act.

New Monitoring Information

    Since the publication of our 2013 proposed rules, we have received 
additional population monitoring information for Graham's beardtongue 
and White River beardtongue in Utah and Colorado, and genetic studies 
of White River beardtongue. In addition, we convened an expert panel to 
discuss the amount of variation found in Graham's beardtongue and White 
River beardtongue genetics and morphology across their ranges. 
Population trends for Graham's beardtongue and White River beardtongue 
are relatively stable to increasing at all monitoring locations with 
episodic recruitment offsetting declines due to herbivory (Reisor and 
McDonough 2014, pp. 22, 33; Pavlik et al. 2015, pp. 1-2; Conservation 
Team 2018, pp. 99-105; Dawson 2018, p. 3; Krening 2018a, pp. 1, 5; and 
Krening 2018b, p. 2). Long-term monitoring results provide additional 
confirmation that Graham's beardtongue plants remain dormant and below 
ground in years of adverse environmental conditions (Krening 2018a, p. 
5; Dawson 2019, p. 1).
    We are also aware that preliminary evaluations of the effect of 
disturbance from development on seed set and pollinator visitation are 
under way. Preliminary results are not conclusive (Barlow and Pavlik 
2018, pp. 2-3; Conservation Team 2018, Appendix E).
    Genetic studies of White River beardtongue have resolved our 
understanding of the species' range and extent, thus eliminating the 
uncertainty associated with the unverified element occurrences we 
referenced in our 2013 proposed rules (Stevens and Johnson 2016, 
entire; Rodriguez et al. 2018, entire). One remaining area of 
uncertainty regarding taxonomy is whether to elevate White River 
beardtongue to a species-level rank of Penstemon albifluvis. White 
River

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beardtongue is currently considered a subspecies (Penstemon scariosus 
var. albifluvis). Regardless, we consider it to be a listable entity. 
We held a meeting on June 2, 2017, with an expert panel to review and 
discuss the new genetic results and other pertinent information 
regarding the range of variation found in Graham's beardtongue and 
White River beardtongue. The additional population monitoring, genetic 
studies, and expert panel information are available at http://www.regulations.gov under Docket No. FWS-R6-ES-2019-0029 and at https://www.fws.gov/mountain-prairie/es/grahamsAndWhiteRiverBeardTongue.php by 
clicking Recent Actions & Links at the bottom of the page. We request 
public comment on these data and how they might impact our assessment 
of the species' status under the Act.

2014 Conservation Agreement and 2018 Addendum

    We and the other parties to the conservation agreement finalized 
the 2014 CA on July 22, 2014. The 2014 CA is similar to the draft 
conservation agreement provided during the previous reopened public 
comment period for our 2013 proposed rules (79 FR 25806), and is 
described in our 2014 withdrawal. We and the other parties to the 2014 
CA signed an addendum to the agreement in November and December 2018.
    In the 2018 addendum, the Federal, State, and county parties agreed 
to a 5-year extension of the 2014 CA until July 25, 2034. The private 
parties in Utah will be released from the 2014 CA when the original 
term ends and when the Uinta County Ordinance (No. 7-16-2018 01) 
expires on July 25, 2029. Afterwards, private parties may voluntarily 
submit land to be incorporated as a conservation area under the 2014 
CA.
    The 2018 addendum includes a new commitment for our agency to 
complete an assessment of the species' status on or around December 31, 
2028, for Graham's beardtongue and White River beardtongue, prior to 
the release of private parties in Utah from the 2014 CA. The purpose of 
this future assessment will be to characterize Graham's and White River 
beardtongues' biological condition and viability within their 
respective ranges at that time. The assessment will likely include a 
projection of the beardtongues' future condition based on plausible 
scenario(s) and will characterize the uncertainty related to stressors 
and scenario(s).
    The 2018 addendum also includes a new commitment for the parties to 
complete a summary report every 5 years. Summary reports will provide a 
comprehensive review of conservation efforts and research performed 
under the 2014 CA, as well as the status of the beardtongues and 
habitat conditions within conservation areas. The summary reports are 
intended to inform our 2028 species status assessment for the 
beardtongues and will also inform the parties of any conservation 
actions that would be beneficial to the species and could be 
implemented prior to the ending of the 2014 CA. The 2014 CA and the 
2018 addendum are available at http://www.regulations.gov under Docket 
No. FWS-R6-ES-2019-0029 and at https://www.fws.gov/mountain-prairie/es/grahamsAndWhiteRiverBeardTongue.php by clicking Recent Actions & Links 
at the bottom of the page. We request public comment on this 
information and how it might impact our assessment of the two species' 
status under the Act.

2014 Conservation Agreement Conservation Area Modifications

    Under section 6.2 of the 2014 CA, parties are required to review 
existing conservation area boundaries and discuss proposed 
modifications to these boundaries. The parties started their review on 
November 2, 2017, and finalized their modification of conservation area 
boundaries on November 20, 2018. The conservation boundary modification 
process included a review of new survey information, prioritization of 
conservation areas based on biological factors, and boundary 
adjustments that reflected priority areas. The parties approved the 
inclusion of an additional 947 ha (2,339 ac) as new designated 
conservation areas for White River beardtongue habitat on BLM and SITLA 
lands. The parties also approved the removal of 46 ha (115 ac) from 
existing conservation areas. These areas were removed due to errors in 
the original Geographic Information System analysis, analyses that 
showed they contained lower value areas without plants, and existing 
development. The conservation area modification document is available 
at http://www.regulations.gov under Docket No. FWS-R6-ES-2019-0029 and 
at https://www.fws.gov/mountain-prairie/es/grahamsAndWhiteRiverBeardTongue.php by clicking Recent Actions & Links 
at the bottom of the page. We request public comment on this 
information and how it might impact our assessment of the two species' 
status under the Act.

Information Requested

    We will accept written comments and information during this 
reopened comment period on our proposed rule to list Graham's 
beardtongue and White River beardtongue as threatened species that was 
published in the Federal Register on August 6, 2013 (78 FR 47590), and 
on our proposed rule to designate critical habitat for both species (78 
FR 47832, August 6, 2013). We will also accept written comments and 
information regarding the new information described above, including 
new survey and monitoring information that have become available, the 
2014 CA and 2018 addendum, and modification of conservation areas under 
the 2014 CA. We will consider information and recommendations from all 
interested parties. We are particularly interested in comments 
concerning:
    (1) The species' biology, range, and population trends, including:
    (a) Biological or ecological requirements of these species;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns; 
and
    (d) Historical, current, and projected population levels and 
trends.
    (2) The factors that are the basis for making a listing 
determination for a species under section 4(a) of the Act (16 U.S.C. 
1531 et seq.), which are:
    (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.
    (3) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to these species and regulations that may 
be addressing those threats.
    (4) Additional information concerning the historical and current 
status, range, distribution, and population size of these species, 
including the locations of any additional populations of these species.
    (5) Past and ongoing conservation measures for these species, their 
habitats, or both.
    (6) Current or planned activities in the areas occupied by these 
species and possible impacts of these activities on these species.
    (7) Any information on the biological or ecological requirements of 
these species and ongoing conservation measures for these species and 
their habitats.

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    (8) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including whether there are threats to the species from human 
activity, the degree of which can be expected to increase due to the 
designation, and whether that increase in threat outweighs the benefit 
of designation such that the designation of critical habitat may not be 
prudent.
    (9) Specific information on:
    (a) The amount and distribution of Graham's beardtongue and White 
River beardtongue occupied and suitable habitat;
    (b) Areas that were occupied at the time of listing (or are 
currently occupied) and that contain features essential to the 
conservation of the species that should be included in the designation 
and why;
    (c) What areas not occupied at the time of listing are essential 
for the conservation of the species and why;
    (d) What may constitute ``physical or biological features essential 
to the conservation of the species,'' within the geographical range 
currently occupied by the species;
    (e) Where the ``physical or biological features essential to the 
conservation of the species,'' features are currently found;
    (f) Information indicating how these species respond to natural and 
anthropogenic disturbances; and
    (g) Special management considerations or protection that may be 
needed in critical habitat areas we are proposing, including managing 
for the potential effects of climate change.
    (10) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (11) Information on the projected and reasonably likely impacts of 
climate change on Graham's and White River beardtongues and proposed 
critical habitat.
    (12) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation; in particular, we seek information on any impacts on small 
entities or families, and the benefits of including or excluding areas 
that exhibit these impacts.
    (13) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act.
    (14) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    (15) The likelihood of adverse social reactions to the designation 
of critical habitat and how the consequences of such reactions, if 
likely to occur, would relate to the conservation and regulatory 
benefits of the proposed critical habitat designation.
    (16) Whether the 2014 CA, including the 2018 addendum and 
conservation area modifications, provides sufficient conservation 
measures to reduce threats to one or both species.
    As indicated under SUMMARY, above, if you submitted comments or 
information on the proposed rules (78 FR 47590 and 78 FR 47832) during 
the initial comment periods from August 6, 2013, to October 7, 2013, or 
from May 6, 2014, to July 7, 2014, please do not resubmit them. Any 
such comments are incorporated as part of the public record of this 
rulemaking proceeding, and we will fully consider them in the 
preparation of our final determination. Our final determination will 
take into consideration all written comments and any additional 
information we receive during all comment periods. The final decision 
may differ from the proposed rule, based on our review of all 
information received during this rulemaking proceeding.
    You may submit your comments and materials concerning the proposed 
rules and other new information described above by one of the methods 
listed in ADDRESSES. We request that you send comments only by the 
methods described in ADDRESSES.
    If you submit information via http://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing the 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, 
Utah Ecological Services Field Office (see FOR FURTHER INFORMATION 
CONTACT).

References Cited

    A complete list of references cited in this document is available 
on the internet at http://www.regulations.gov at Docket No. FWS-R6-ES-
2019-0029 and on our website at https://www.fws.gov/mountain-prairie/es/grahamsAndWhiteRiverBeardTongue.php by clicking Recent Actions & 
Links at the bottom of the page, and upon request from the Utah 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this document are the staff members of the 
Mountain Prairie Regional Office and Utah Ecological Services Field 
Office.

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: July 22, 2019.
 Margaret Everson,
Principal Deputy Director, U.S. Fish and Wildlife Service, Exercising 
the Authority of the Director, U.S. Fish and Wildlife Service.
[FR Doc. 2019-19768 Filed 9-11-19; 8:45 am]
 BILLING CODE 4333-15-P