Federal Register / Vol. 87, No. 86 / Wednesday, May 4, 2022 / Proposed Rules 26319 

2 ‘‘Fall 2021 Unified Agenda of Regulatory and 

Deregulatory Actions.’’ Current Unified Agenda of 

Regulatory and Deregulatory Actions, https://

www.reginfo.gov/public/do/eAgendaMain?

operation=OPERATION_GET_AGENCY_RULE_

LIST Accessed December 22, 2021. 

The NPRM stated that the information 

NHTSA analyzed indicated that ECUs 

have been installed in most heavy 

trucks since 1999, although the Agency 

was aware that some manufacturers 

were still installing mechanical controls 

through 2003 (81 FR 61947). Based on 

this background, it is likely the required 

means of achieving compliance with a 

speed limiter requirement would be to 

use the ECU to govern the speed of the 

vehicle rather than installing a 

mechanical means of doing so. 

The Fall 2021 Unified Agenda of 

Regulatory and Deregulatory Actions,2

published December 10, 2021, lists both 

speed limiter rules, from NHTSA 

(Regulation Identification Number 

2127–AK92) and FMCSA (Regulation 

Identification Number 2126–AB63), as 

long-term actions. This notice informs 

the public that FMCSA intends to move 

forward with a separate motor carrierbased speed limiter rulemaking. FMCSA 

believes that placing the requirement on 

motor carriers will ensure compliance 

with the rule, and potentially avoid 

confusion on who is responsible. 

FMCSA believes the requirements can 

be met by the motor carriers but asks 

questions below to validate that 

approach. FMCSA will continue to 

consult with NHTSA during the 

development of this rule. If necessary, 

NHTSA will evaluate the need for 

additional regulatory actions concerning 

CMV manufacturer requirements to 

address issues raised during 

implementation that are beyond the 

scope of FMCSA’s authority. 

FMCSA Intention 

FMCSA intends to issue an SNPRM 

that would, if adopted, impose speed 

limitations on certain CMVs subject to 

the FMCSRs. The rulemaking would 

propose that motor carriers operating 

certain commercial motor vehicles, as 

defined in 49 CFR 390.5, in interstate 

commerce that are equipped with an 

ECU capable of setting speed limits be 

required to limit the CMV to a speed to 

be determined by the rulemaking and to 

maintain that limit for the service life of 

the vehicle. The agency is considering 

making the rule only applicable to 

CMVs manufactured after a certain date, 

such as 2003, because this is the 

population of vehicles for which ECUs 

were routinely installed and may 

potentially be used to govern the speed 

of the vehicles. FMCSA seeks data 

below, to determine if that approach 

should be revised in the forthcoming 

SNPRM. The agency is considering 

whether a retrofit requirement would be 

necessary and requests information 

below. 

FMCSA is not yet proposing 

regulatory language to amend the 

FMCSRs in this notice. FMCSA does, 

however, solicit comments on the 

questions listed in Section II. REQUEST 

FOR PUBLIC COMMENTS, which will 

assist in the development of the 

SNPRM. 

II. Request for Public Comments 

FMCSA requests comments on the 

programming or adjustment of ECUs 

that could be made to impose speed 

limits on CMVs, including responses to 

the questions below. 

General Questions: Setting and 

Maintaining ECUs 

1. What percentage of the CMV fleet 

currently uses speed limiting devices? 

2. If in use, at what maximum speed 

are the devices generally set? 

3. What skill sets or training are 

needed for motor carriers’ maintenance 

personnel to adjust or program ECUs to 

set speed limits? 

4. What tools or equipment are 

needed to adjust or program ECUs? 

5. How long would adjustment or 

reprogramming of an ECU take? 

6. Where can the adjustment or 

reprogramming of an ECU be 

completed? 

6.a. Can the adjustment or 

reprogramming of an ECU be made onsite where the vehicle is ordinarily 

housed or garaged, or would it have to 

be completed at a dealership? 

7. Do responses to questions 3 

through 6 change based on the model 

year of the power unit? 

8. Since publication of the NPRM, 

how has standard practice or technology 

changed as it relates to the ability to set 

speed limits using ECUs? 

9. Are there any challenges or burdens 

associated with FMCSA publishing a 

rule without NHTSA updating the 

FMVSS? 

10. Should FMCSA revisit using the 

2003 model year as the baseline 

requirement for the rule? 

11. Should FMCSA consider a retrofit 

requirement in the rule and, if so, 

should it be based on model year or 

other criteria, and what would the cost 

of such a requirement be? 

12. Should FMCSA include Classes 3– 

6 (i.e., 10,001–26,001 lbs. GVWR) in the 

SNPRM? 

Robin Hutcheson, 

Deputy Administrator. 

[FR Doc. 2022–09443 Filed 5–3–22; 8:45 am] 

BILLING CODE 4910–EX–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R6–ES–2021–0134; 

FF09E21000 FXES1111090FEDR 223] 

RIN 1018–BE98 

Endangered and Threatened Wildlife 

and Plants; Threatened Species Status 

With Section 4(d) Rule for the 

Silverspot Butterfly 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

list a subspecies of butterfly (Speyeria 

nokomis nokomis), a silverspot butterfly 

from Colorado, New Mexico, and Utah, 

as a threatened species under the 

Endangered Species Act of 1973, as 

amended (Act), with a rule issued under 

section 4(d) of the Act (‘‘4(d) rule’’). 

This document also serves as our 12- 

month finding on a petition to list the 

silverspot. After a review of the best 

available scientific and commercial 

information, we find that listing the 

subspecies is warranted. If we finalize 

this rule as proposed, it would add this 

subspecies to the List of Endangered 

and Threatened Wildlife and extend the 

Act’s protections to the subspecies. We 

determined that designating critical 

habitat for this subspecies under the Act 

is not prudent. 

DATES: We will accept comments 

received or postmarked on or before July 

5, 2022. 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. We 

must receive requests for a public 

hearing, in writing, at the address 

shown in FOR FURTHER INFORMATION

CONTACT by June 21, 2022. 

ADDRESSES: 

Written comments: You may submit 

comments by one of the following 

methods: 

(1) Electronically: Go to the Federal 

eRulemaking Portal: https://

www.regulations.gov. In the Search box, 

enter the docket number or RIN for this 

rulemaking (presented above in the 

document headings). For best results, do 

not copy and paste either number; 

instead, type the docket number or RIN 

into the Search box using hyphens. 

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, check the 


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26320 Federal Register / Vol. 87, No. 86 / Wednesday, May 4, 2022 / Proposed Rules 

Proposed Rule box to locate this 

document. You may submit a comment 

by clicking on ‘‘Comment.’’ 

(2) By hard copy: Submit by U.S. mail 

to: Public Comments Processing, Attn: 

FWS–R6–ES–2021–0134, U.S. Fish and 

Wildlife Service, MS: PRB/3W, 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 https:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see 

Information Requested, below, for more 

information). 

Availability of supporting materials: 

For this proposed rule, supporting 

materials are available at https://

www.regulations.gov under Docket No. 

FWS–R6–ES–2021–0134, and at the 

Western Colorado Ecological Services 

Field Office (see FOR FURTHER

INFORMATION CONTACT). 

FOR FURTHER INFORMATION CONTACT: Ann 

Timberman, Western Colorado 

Supervisor, U.S. Fish and Wildlife 

Service, Western Colorado Ecological 

Services Field Office, 445 West 

Gunnison Avenue, Grand Junction, CO 

81501; telephone 970–628–7181. 

Individuals in the United States who are 

deaf, deafblind, hard of hearing, or have 

a speech disability may dial 711 (TTY, 

TDD, or TeleBraille) to access 

telecommunications relay services. 

Individuals outside the United States 

should use the relay services offered 

within their country to make 

international calls to the point-ofcontact in the United States. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

Why we need to publish a rule. Under 

the Act, a species warrants listing if it 

meets the definition of an endangered 

species (in danger of extinction 

throughout all or a significant portion of 

its range) or a threatened species (likely 

to become endangered in the foreseeable 

future throughout all or a significant 

portion of its range). We have 

determined that the silverspot butterfly 

(Speyeria nokomis nokomis) meets the 

definition of a threatened species; 

therefore, we are proposing to list it as 

such. We have determined that 

designation of critical habitat is not 

prudent. Both listing a species as an 

endangered or threatened species and 

designating critical habitat can be 

completed only by issuing a rule 

through the Administrative Procedure 

Act rulemaking process. 

What this document does. We 

propose to list the silverspot butterfly as 

a threatened species with a 4(d) rule. 

The basis for our action. Under the 

Act, we may determine that a species is 

an endangered or threatened species 

because of any of five factors: (A) The 

present or threatened destruction, 

modification, or curtailment of its 

habitat or range; (B) overutilization for 

commercial, recreational, scientific, or 

educational purposes; (C) disease or 

predation; (D) the inadequacy of 

existing regulatory mechanisms; or (E) 

other natural or manmade factors 

affecting its continued existence. We 

have determined that habitat loss and 

fragmentation, incompatible livestock 

grazing, human-caused hydrologic 

alteration, genetic isolation, and the 

effects of climate change negatively 

affect the silverspot butterfly’s viability 

at a population level. 

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

Secretary of the Interior (Secretary) to 

designate critical habitat concurrent 

with listing to the maximum extent 

prudent and determinable. Section 

3(5)(A) of the Act defines critical habitat 

as (i) the specific areas within the 

geographical area occupied by the 

species, at the time it is listed, 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 protections; and (ii) 

specific areas outside the geographical 

area occupied by the species at the time 

it is listed, upon a determination by the 

Secretary that such areas are essential 

for the conservation of the species. 

Section 4(b)(2) of the Act states that the 

Secretary must make the designation on 

the basis of the best scientific data 

available and after taking into 

consideration the economic impact, the 

impact on national security, and any 

other relevant impacts of specifying any 

particular area as critical habitat. In the 

case of the silverspot butterfly, we 

found that designating critical habitat 

was not prudent, as explained later in 

this document. 

Information Requested 

We intend that any final action 

resulting from this proposed rule will be 

based on the best scientific and 

commercial data available and be as 

accurate and as effective as possible. 

Therefore, we request comments or 

information from other concerned 

governmental agencies, Native 

American Tribes, the scientific 

community, industry, or any other 

interested parties concerning this 

proposed rule. 

We particularly seek comments 

concerning: 

(1) The subspecies’ biology, range, 

and population trends, including: 

(a) Biological or ecological 

requirements of the subspecies, 

including habitat requirements for 

feeding, breeding, and sheltering; 

(b) Genetics and taxonomy; 

(c) Historical and current range, 

including distribution patterns; 

(d) Historical and current population 

levels, and current and projected trends; 

and 

(e) Past and ongoing conservation 

measures for the subspecies, its habitat, 

or both. 

(2) Factors that may affect the 

continued existence of the subspecies, 

which may include habitat modification 

or destruction, overutilization, disease, 

predation, the inadequacy of existing 

regulatory mechanisms, or other natural 

or manmade factors. 

(3) Biological, commercial trade, or 

other relevant data concerning any 

threats (or lack thereof) to this 

subspecies and existing regulations that 

may be addressing those threats. 

(4) Additional information concerning 

the historical and current status, range, 

distribution, and population size of this 

subspecies, including the locations of 

any additional populations of this 

subspecies. 

(5) Information on regulations that are 

necessary and advisable to provide for 

the conservation of the silverspot 

butterfly and that the Service can 

consider in developing a 4(d) rule for 

the subspecies. In particular, 

information concerning the extent to 

which we should include any of the 

Act’s section 9 prohibitions in the 4(d) 

rule or whether we should consider any 

additional exceptions from the 

prohibitions in the 4(d) rule. 

(6) 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 

information to inform the following 

factors that the regulations identify as 

reasons why designation of critical 

habitat may be not prudent: 

(a) The species is threatened by taking 

or other human activity and 

identification of critical habitat can be 

expected to increase the degree of such 

threat to the species; 

(b) The present or threatened 

destruction, modification, or 

curtailment of a species’ habitat or range 

is not a threat to the species, or threats 

to the species’ habitat stem solely from 

causes that cannot be addressed through 

management actions resulting from 

consultations under section 7(a)(2) of 

the Act; 

(c) Areas within the jurisdiction of the 

United States provide no more than 

negligible conservation value, if any, for 


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a species occurring primarily outside 

the jurisdiction of the United States; or 

(d) No areas meet the definition of 

critical habitat. 

Please include sufficient information 

with your submission (such as scientific 

journal articles or other publications) to 

allow us to verify any scientific or 

commercial information you include. 

Please note that submissions merely 

stating support for, or opposition to, the 

action under consideration without 

providing supporting information, 

although noted, will not be considered 

in making a determination, as section 

4(b)(1)(A) of the Act directs that 

determinations as to whether any 

species is an endangered or a threatened 

species must be made ‘‘solely on the 

basis of the best scientific and 

commercial data available.’’ 

You may submit your comments and 

materials concerning this proposed rule 

by one of the methods listed in 

ADDRESSES. We request that you send 

comments only by the methods 

described in ADDRESSES. 

If you submit information via https:// 

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 https://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 https://www.regulations.gov. 

Because we will consider all 

comments and information we receive 

during the comment period, our final 

determinations may differ from this 

proposal. Based on the new information 

we receive (and any comments on that 

new information), we may conclude that 

the subspecies is endangered instead of 

threatened, or we may conclude that the 

subspecies does not warrant listing as 

either an endangered species or a 

threatened species. For critical habitat, 

we may conclude that designation of 

critical habitat is indeed prudent. In 

addition, we may change the parameters 

of the prohibitions or the exceptions to 

those prohibitions in the 4(d) rule if we 

conclude it is appropriate in light of 

comments and new information 

received. For example, we may expand 

the prohibitions to include prohibiting 

additional activities if we conclude that 

those additional activities are not 

compatible with conservation of the 

subspecies. Conversely, we may 

establish additional exceptions to the 

prohibitions in the final rule if we 

conclude that the activities would 

facilitate or are compatible with the 

conservation and recovery of the 

subspecies. 

Public Hearing 

Section 4(b)(5) of the Act provides for 

a public hearing on this proposal, if 

requested. Requests must be received by 

the date specified in DATES. Such 

requests must be sent to the address 

shown in FOR FURTHER INFORMATION

CONTACT. We will schedule a public 

hearing on this proposal, if requested, 

and announce the date, time, and place 

of the hearing, as well as how to obtain 

reasonable accommodations, in the 

Federal Register and local newspapers 

at least 15 days before the hearing. For 

the immediate future, we will provide 

these public hearings using webinars 

that will be announced on the Service’s 

website, in addition to the Federal 

Register. The use of these virtual public 

hearings is consistent with our 

regulations at 50 CFR 424.16(c)(3). 

Previous Federal Actions 

On July 3, 1978, we proposed to list 

Speyeria nokomis nokomis (with the 

common name ‘‘Great Basin silverspot 

butterfly’’) as a threatened species with 

critical habitat under the Act (43 FR 

28938). Due to a new range delineation 

(described in Background below), the 

former common name, Great Basin 

silverspot butterfly, is no longer valid as 

the subspecies is not found within the 

Great Basin; therefore, we will refer to 

the S. n. nokomis subspecies as 

‘‘silverspot’’ in this proposed rule. On 

March 6, 1979, we withdrew the July 3, 

1978, proposed rule, along with certain 

other proposed rules, because they did 

not meet requirements set forth in the 

Endangered Species Act Amendments 

of 1978 (Pub. L. 95–632, 92 Stat. 3751); 

see 44 FR 12382. 

On May 22, 1984, we identified the 

silverspot as a category 2 candidate 

species (49 FR 21664). Category 2 

candidate species comprised taxa for 

which information in the Service’s 

possession indicated that a proposal to 

list the species as endangered or 

threatened was possibly appropriate, 

but for which conclusive data on 

biological vulnerability and threat(s) 

were not currently available to support 

proposed rules at that time. Later 

candidate notices of review (CNOR) 

retained the subspecies as a category 2 

candidate species (54 FR 554, January 6, 

1989; 56 FR 58804, November 21, 1991; 

59 FR 58982, November 15, 1994). 

On February 28, 1996, we 

discontinued the designation of category 

2 species as candidates in CNORs (61 

FR 7596), and on December 5, 1996, we 

published a notice of final decision (61 

FR 64481) to discontinue the practice of 

maintaining a list of species regarded as 

‘‘category 2 candidates.’’ These actions 

resulted in the removal of the silverspot 

from the candidate list. 

In 2013, WildEarth Guardians 

petitioned us to list the silverspot. On 

January 12, 2016, we published a 90-day 

finding (81 FR 1368) stating that the 

petition presented substantial scientific 

or commercial information indicating 

that the petitioned action may be 

warranted and announcing our intent to 

proceed with a status review. In 2021, 

we completed a species status 

assessment report for the silverspot 

(hereafter, SSA report) to compile the 

best scientific and commercial data 

available regarding the subspecies’ 

biology and factors that influence the 

subspecies’ viability (Service 2021, 

entire). 

Supporting Documents 

A species status assessment (SSA) 

team prepared an SSA report for the 

silverspot butterfly (Service 2021, 

entire). The SSA team was composed of 

Service biologists, in consultation with 

other species experts. The SSA report 

represents a compilation of the best 

scientific and commercial data available 

concerning the status of the subspecies, 

including the impacts of past, present, 

and future factors (both negative and 

beneficial) affecting the subspecies. In 

accordance with our joint policy on peer 

review published in the Federal 

Register on July 1, 1994 (59 FR 34270), 

and our August 22, 2016, memorandum 

updating and clarifying the role of peer 

review of listing actions under the Act, 

we sought the expert opinions of four 

appropriate specialists regarding the 

SSA report. We received four responses. 

We also sent the SSA report to partners, 

including scientists with expertise in 

the subspecies, its habitat, and genetics, 

for review. The SSA report provides the 

scientific basis for this proposed listing 

rule. 

I. Proposed Listing Determination 

Background 

A thorough review of the taxonomy, 

life history, and ecology of the 

silverspot butterfly (hereafter, 

silverspot) is presented in the SSA 

report (Service 2021, pp. 4–24), and is 

briefly summarized here. 

The silverspot is a relatively large 

butterfly with up to a 3-inch wingspan. 

Males typically have bright orange on 


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the upper side of the wing, while 

females typically have cream or light 

yellow with brown or black. The 

underside of the wing of both sexes has 

silvery-white spots, giving the 

subspecies’ the common name of 

silverspot butterfly. 

Based on recent genetic analysis, 

there are five silverspot butterfly 

subspecies including 10 major 

populations of S. nokomis throughout 

the United States and Mexico (Cong et 

al. 2019, entire). We established a new, 

more accurate range boundary for S. n. 

nokomis in this SSA based on the 

genetic analysis, which limits the 

distribution to east-central Utah through 

western and south-central Colorado and 

into north-central New Mexico (Service 

2021, p. ii). The new range delineation 

shows that the subspecies does not 

occur in the Great Basin and thus the 

former common name, Great Basin 

silverspot butterfly, is no longer valid. 

We refer to the S. n. nokomis subspecies 

as ‘‘silverspot’’ in this proposed rule. 

In the SSA report, we identified 10 

populations of silverspot in our 

analysis, including the following: 

Archuleta, Conejos, Costilla, Garfield, 

La Plata, Mesa/Grand, Montrose/San 

Juan, and Ouray populations in 

Colorado and Utah; and the San Miguel/ 

Mora and Taos populations in New 

Mexico (Service 2021, figure 14 and 

table 4). Populations of silverspot are 

known to occur between 5,200 feet (ft) 

(1,585 meters (m)) and 8,300 ft (2,530 

m). The butterfly requires moist habitats 

in mostly open meadows with a variety 

of herbaceous and woody vegetation. 

Eggs are laid on or near the bog violet 

(Viola nephrophylla/V. sororia var. 

affinis), which the larvae feed on 

exclusively. A variety of flowering 

plants provide adult nectar sources. The 

butterfly completes its entire life cycle 

in one year. 

Regulatory and Analytical Framework 

Regulatory Framework 

Section 4 of the Act (16 U.S.C. 1533) 

and its implementing regulations (50 

CFR part 424) set forth the procedures 

for determining whether a species is an 

endangered species or a threatened 

species. The Act defines an 

‘‘endangered species’’ as a species that 

is in danger of extinction throughout all 

or a significant portion of its range, and 

a ‘‘threatened species’’ as a species that 

is likely to become an endangered 

species within the foreseeable future 

throughout all or a significant portion of 

its range. The Act requires that we 

determine whether any species is an 

endangered species or a threatened 

species because of any of the following 

factors: 

(A) The present or threatened 

destruction, modification, or 

curtailment of its habitat or range; 

(B) Overutilization for commercial, 

recreational, scientific, or educational 

purposes; 

(C) Disease or predation; 

(D) The inadequacy of existing 

regulatory mechanisms; or 

(E) Other natural or manmade factors 

affecting its continued existence. 

These factors represent broad 

categories of natural or human-caused 

actions or conditions that could have an 

effect on a species’ continued existence. 

In evaluating these actions and 

conditions, we look for those that may 

have a negative effect on individuals of 

the species, as well as other actions or 

conditions that may ameliorate any 

negative effects or may have positive 

effects. 

We use the term ‘‘threat’’ to refer in 

general to actions or conditions that are 

known to or are reasonably likely to 

negatively affect individuals of a 

species. The term ‘‘threat’’ includes 

actions or conditions that have a direct 

impact on individuals (direct impacts), 

as well as those that affect individuals 

through alteration of their habitat or 

required resources (stressors). The term 

‘‘threat’’ may encompass—either 

together or separately—the source of the 

action or condition or the action or 

condition itself. 

However, the mere identification of 

any threat(s) does not necessarily mean 

that the species meets the statutory 

definition of an ‘‘endangered species’’ or 

a ‘‘threatened species.’’ In determining 

whether a species meets either 

definition, we must evaluate all 

identified threats by considering the 

expected response by the species, and 

the effects of the threats—in light of 

those actions and conditions that will 

ameliorate the threats—on an 

individual, population, and species 

level. We evaluate each threat and its 

expected effects on the species, then 

analyze the cumulative effect of all of 

the threats on the species as a whole. 

We also consider the cumulative effect 

of the threats in light of those actions 

and conditions that will have positive 

effects on the species, such as any 

existing regulatory mechanisms or 

conservation efforts. The Secretary 

determines whether the species meets 

the Act’s definition of an ‘‘endangered 

species’’ or a ‘‘threatened species’’ only 

after conducting this cumulative 

analysis and describing the expected 

effect on the species now and in the 

foreseeable future. 

The Act does not define the term 

‘‘foreseeable future,’’ which appears in 

the statutory definition of ‘‘threatened 

species.’’ Our implementing regulations 

at 50 CFR 424.11(d) set forth a 

framework for evaluating the foreseeable 

future on a case-by-case basis. The term 

‘‘foreseeable future’’ extends only so far 

into the future as the Service can 

reasonably determine that both the 

future threats and the species’ responses 

to those threats are likely. In other 

words, the foreseeable future is the 

period of time in which we can make 

reliable predictions. ‘‘Reliable’’ does not 

mean ‘‘certain’’; it means sufficient to 

provide a reasonable degree of 

confidence in the prediction. Thus, a 

prediction is reliable if it is reasonable 

to depend on it when making decisions. 

It is not always possible or necessary 

to define foreseeable future as a 

particular number of years. Analysis of 

the foreseeable future uses the best 

scientific and commercial data available 

and should consider the timeframes 

applicable to the relevant threats and to 

the species’ likely responses to those 

threats in view of its life-history 

characteristics. Data that are typically 

relevant to assessing the species’ 

biological response include speciesspecific factors such as lifespan, 

reproductive rates or productivity, 

certain behaviors, and other 

demographic factors. 

Analytical Framework 

The SSA report documents the results 

of our comprehensive biological review 

of the best scientific and commercial 

data regarding the status of the species, 

including an assessment of the potential 

threats to the species. The SSA report 

does not represent a decision by the 

Service on whether the species should 

be proposed for listing as an endangered 

or threatened species under the Act. 

However, it does provide the scientific 

basis that informs our regulatory 

decisions, which involve the further 

application of standards within the Act 

and its implementing regulations and 

policies. The following is a summary of 

the key results and conclusions from the 

SSA report; the full SSA report can be 

found at Docket No. FWS–R6–ES–2021– 

0134 on https://www.regulations.gov. 

To assess the silverspot’s viability, we 

used the three conservation biology 

principles of resiliency, redundancy, 

and representation (Shaffer and Stein 

2000, pp. 306–310). Briefly, resiliency 

supports the ability of the species to 

withstand environmental and 

demographic stochasticity (for example, 

wet or dry, warm or cold years), 

redundancy supports the ability of the 

species to withstand catastrophic events 


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(for example, droughts, large pollution 

events), and representation supports the 

ability of the species to adapt over time 

to long-term changes in the environment 

(for example, climate changes). In 

general, the more resilient and 

redundant a species is and the more 

representation it has, the more likely it 

is to sustain populations over time, even 

under changing environmental 

conditions. Using these principles, we 

identified the silverspot’s ecological 

requirements for survival and 

reproduction at the individual, 

population, and subspecies levels, and 

described the beneficial and risk factors 

influencing the subspecies’ viability. 

The SSA process can be categorized 

into three sequential stages. During the 

first stage, we evaluated the individual 

subspecies’ life-history needs. The next 

stage involved an assessment of the 

historical and current condition of the 

subspecies’ demographics and habitat 

characteristics, including an 

explanation of how the subspecies 

arrived at its current condition. The 

final stage of the SSA involved making 

predictions about the subspecies’ 

responses to positive and negative 

environmental and anthropogenic 

influences. Throughout all of these 

stages, we used the best available 

information to characterize viability as 

the ability of a species (or in this case, 

subspecies, which is a listable entity 

under the Act) to sustain populations in 

the wild over time. We use this 

information to inform our regulatory 

decision. 

Summary of Biological Status and 

Threats 

In this discussion, we review the 

biological condition of the subspecies 

and its resources, and the threats that 

influence the subspecies’ current and 

future condition, in order to assess the 

subspecies’ overall viability and the 

risks to that viability. 

Species Needs 

Individual Needs 

Individual silverspot needs include 

wet meadows supported by springs, 

seeps, streams, or irrigated areas that 

contain the bog violet host plant for eggs 

and larvae and other herbaceous 

vegetation for cover and food resources. 

The butterflies may benefit from a light 

interspersion of willow or other shrubs 

for shade and for larval shelter. More 

dense willow and shrubs often surround 

open meadows where silverspots occur 

and, as long as the woody vegetation 

does not take over the meadows, the 

margins of denser stands can be 

beneficial for shade and shelter as well. 

Population Needs 

Populations need abundant 

individuals within habitat patches of 

adequate size and quality to maintain 

survival and reproduction. In general, 

the greater the suitable habitat acreage, 

and the greater the number of 

individuals within a population, the 

greater the resilience. Furthermore, 

colonies and populations need to be 

close enough to each other for 

individuals to breed with each other in 

order to maintain genetic diversity. 

Silverspots likely do not fly more than 

5–10 miles (mi) (8–16 kilometers (km)) 

and would likely have difficulty finding 

another colony beyond this distance 

(Ellis 2020a, 2020b, 2020c, pers. 

comm.). Additionally, silverspots need 

the bog violet to be of sufficient extent 

and density to support colonies and 

populations. We define colonies to 

mean areas of abundant violets that 

produce butterflies, as well as 

surrounding habitat with nectar sources. 

If there is narrow but contiguous 

nectaring habitat up or down a drainage 

but without violets (or with only sparse 

violets), we consider those areas 

transitional corridors that are likely 

valuable for dispersal and genetic 

connectivity. 

The silverspot and other S. nokomis 

subspecies can move between colonies 

within a continuous or nearly 

continuous riparian zone (Arnold 1989, 

pp. 10, 14; Fleishman et al. 2002, p. 

708). For example, six colonies occurred 

along a 5-mi stretch in Unaweep Canyon 

that had likely genetic interchange (Ellis 

1989, p. 3). However, these are 

considered separate colonies due to the 

natural or human-caused patchiness of 

bog violets up and down the canyon. In 

a mark-recapture study (Arnold 1989, 

pp. 10, 14, 21) in Unaweep Canyon, 

about 50 percent of the recaptured 

butterflies moved between two colonies 

separated by about 0.75 mi (1.2 km). 

Based on this work, it was speculated 

that silverspots could easily move at 

least 1 mile, and, based on this, Ellis 

(1989, p. 19) further speculated that 

there was exchange of individuals 

among all the Unaweep Canyon 

colonies every 1 to 5 years. This 

information also provided the basis for 

Ellis’ professional judgement that 

colonies or populations farther than 5 to 

10 mi (8 to 16 km) from each other are 

likely isolated (Ellis 2020a, 2020b, 

2020c, pers. comm.). 

Some silverspot populations have 

single colonies, while others have more 

than one colony, creating a 

metapopulation. A metapopulation 

structure is where individuals in 

colonies are close enough to interbreed 

and can recolonize temporarily 

extirpated colonies. Colonies in a 

functioning metapopulation can be 

recolonized if local naturally occurring 

(stochastic) events cause extirpation of a 

colony. For instance, a flood may 

extirpate a colony, but if there is a 

nearby source for the bog violet and 

associated plant species, the area may 

return to suitable habitat condition and 

be recolonized by the butterfly. 

Unfortunately, there is very little 

information on what an adequate-sized 

habitat patch for silverspot is, especially 

if there is only a single colony in a 

population. A professional estimate for 

minimum patch size of colonies is 2 

acres (ac) (0.8 hectares (ha)) if the 

habitat has a reliable groundwater 

source and has high violet density; 5 ac 

(2 ha) if violets are less dense due to 

natural or human-caused variability 

within a patch (Ellis 2020c, pers. 

comm.). Although it is possible a single 

2-acre or 5-acre patch of habitat could 

support the butterfly for a period of 

time, a more resilient population will 

likely contain at least three colonies of 

those sizes or greater. A three-colony 

metapopulation will have a better 

chance of survival by spreading the risk 

of extirpation if a natural event occurs 

at one or two of the colonies. Thus, the 

remaining one or two colonies can 

recolonize the extirpated sites assuming 

suitable habitat remains or reestablishes. 

Due to natural variability in soil and 

topographic conditions, we assume that 

most areas within the silverspot’s range 

are likely to have a lower density of 

violets, rather than dense violets 

(Service 2021, p. 21). Consequently, 

under this assumption, a minimum 

amount of habitat for a sufficiently 

resilient population may be 12 ac (5 ha) 

and this can be made up of multiple 

colonies as long as they are at least 2 ac 

(0.8 ha) in size (Service 2021, p. 21). 

Due to its isolation, a single-colony 

population likely needs to have 

hundreds of acres of habitat in order to 

ensure there are enough butterflies to 

maintain genetic diversity and viability 

over the long term (Service 2021, p. 21). 

The specific minimum threshold for 

single colonies to maintain viability is 

unknown, but the larger the acreage is, 

the greater the resiliency and higher 

likelihood of viability. 

There is also little information on the 

minimum number of silverspot 

individuals needed to sustain a colony. 

There have only been two demographic 

studies for silverspot that occurred at 

the same locations 10 years apart: 1979 

and 1989 (Arnold 1989). The 1989 study 

found a daily estimate of between 48 

and 260 butterflies with two different 

models at the Unaweep Seep colony 


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(Arnold 1989, pp. 6, 14). A combined 

population estimate at the Unaweep 

Seep colony and another upstream 

colony in Unaweep Canyon (which is 

considered two colonies due to 

intervening transitional habitat) resulted 

in a range of daily abundance from 594 

to 2,689 butterflies. Quality of habitat 

may have as much weight in 

determining resiliency of a colony or 

population as does overall size of a 

habitat patch or number of individuals. 

Habitat quality could potentially be 

measured by density of violets. The 

Unaweep Seep study (Arnold 1989, p. 

20) revealed that the larger colony with 

many individuals became extirpated, 

likely due to vegetative encroachment, 

while the upstream colony with more 

violets remained extant. Consequently, 

populations appear to have greater 

chance for survival when containing 

more violets. 

Based on observation of grazed and 

burned properties in Unaweep Canyon, 

it was determined that occasional or 

well-managed grazing and burning 

likely benefit the violet by reducing 

willows, as well as reducing thatch 

buildup from grasses and sedges 

(Arnold 1989, p. 14; Ellis 1989, pp. 18, 

19). Consequently, natural factors or 

management activities that lead to early 

seral stages or at least more open 

conditions where willow, grass, sedge or 

other vegetation does not outcompete 

violets is important to colonies and 

populations. 

Single-colony populations likely need 

to have a very large habitat area, in the 

hundreds of acres, but might still need 

occasional immigration from other 

populations to maintain genetic 

diversity and resiliency for long-term 

persistence. Based on the scant 

evidence, the minimum number of 

individuals that are needed to sustain a 

silverspot colony or population is 

unknown, and even apparent natural 

but detrimental habitat factors, such as 

excessive growth of other plants, can 

cause extirpation of seemingly large 

colonies. Without additional study, it is 

not known what the minimum habitat 

size is to maintain viability, nor what 

density or abundance of bog violets or 

nectar sources is needed to sustain a 

colony or population, nor the maximum 

distance between colonies or 

populations that can be reached for 

genetic interchange to still be able to 

occur on a regular basis. Furthermore, it 

is unknown if very large single-colony 

populations can be sufficiently resilient 

without occasional genetic interchange 

from other populations. 

In summary, to be adequately 

resilient, silverspot populations need 

water to sustain violets for the larvae, as 

well as occasional or seasonal 

disturbance by grazing from native 

ungulates or domestic livestock, or 

burning, mowing, or non-catastrophic 

flooding, to occasionally remove 

vegetation that might otherwise crowd 

out the violets and other nectar plants 

for the adults. Furthermore, based on 

expert opinion and evidence from 

Arnold (1989) and Ellis (1989), the most 

resilient populations need to be at least 

2 ac (0.8 ha) in size with dense violets 

or at least 5 ac (2 ha) in size with less 

dense violets, and need to have a few to 

several colonies within 0.75 to 5 mi (1.2 

to 8 km) of each other and likely be not 

more than 10 mi (16 km) from each 

other (Ellis 2020c, pers. comm.). 

Species Needs 

To maintain viability, silverspots 

need to have a sufficient quality and 

quantity of habitat for adequately 

resilient populations, numerous 

populations to create redundancy in the 

event of catastrophic events, and broad 

enough genetic and ecological diversity 

to adapt to changing environmental 

conditions (representation). The 

subspecies will have a better chance of 

long-term viability if single-colony 

populations and even the 

metapopulations occasionally receive 

individuals from other populations such 

that genetic interchange occurs and they 

are able to adapt more readily to 

environmental changes. 

Factors Influencing Subspecies Viability 

We reviewed the potential risk factors 

(i.e., threats, stressors) that could be 

affecting the silverspot now and in the 

future. In this proposed rule, we will 

discuss only those factors in detail that 

could meaningfully impact the status of 

the subspecies. Habitat loss and 

fragmentation, human-caused 

hydrologic alteration, livestock grazing, 

genetic isolation, exotic plant invasion, 

climate change, climate events, larval 

desiccation, and collecting are all 

factors that influence or could influence 

the subspecies’ viability. Those risks 

that are not known to have effects on 

silverspot populations, such as disease, 

predation, prescribed burning or 

wildfire, and pesticides, are not 

discussed here but are evaluated in the 

SSA report. 

Habitat Loss and Fragmentation 

Habitat loss from golf course and 

housing development caused 

extirpation of two historical colonies 

north of Durango, Colorado (Ellis and 

Fisher 2020, pers. comm.). The 

remaining known site in the La Plata 

population has residential and 

commercial development across the 

street from it, and one of two drainages 

supplying it water has relatively new 

housing and golf courses all around 

within 1.5 air miles (2.4 km), potentially 

degrading downstream silverspot 

habitat through hydrologic alteration. 

Housing development also appears to 

have been a contributing factor in 

extirpation of the Beulah, New Mexico, 

colony (Scott and Fisher 2014, p. 3). In 

Colorado, it is possible that Rifle Gap 

Reservoir and Dam degraded and 

fragmented habitat, as one butterfly was 

sighted at a small wetland downstream 

of the dam and the reservoir flooded 

and fragmented habitat upstream. 

Additional habitat alteration upstream 

and downstream from a variety of 

factors also has likely fragmented 

habitat. Many other colonies/ 

populations have development around 

them that also either directly encroaches 

on the habitat or likely has caused 

degradation and fragmentation from 

homes, roads, hydrologic alteration and 

habitat conversion. 

Agricultural habitat conversion can 

cause loss or fragmentation of habitat 

and typically involves mowing native 

meadows or growing exotic grasses for 

hay. Although it is unknown if all 

agricultural conversion has caused 

habitat to become unsuitable, aerial 

imagery reveals that agricultural 

conversion has been extensive within 

the silverspot’s range. It has likely 

caused loss of unknown colonies over 

the last 150 years and has fragmented 

native habitat, reducing connectivity 

between colonies and populations. 

Annual haying may be less detrimental 

than haying two or three times a 

summer. A related subspecies in 

Arizona and New Mexico persisted for 

many years (Cong et al. 2019) even 

though haying occurs there once a year 

typically in late August or September 

(Smith 2019, pers. comm.). 

Despite potential compatibility with 

annually mowing native hay fields, 

agricultural conversion to unsuitable 

crops or fragmentation of habitat has 

been extensive. Furthermore, residential 

and commercial development, and other 

development like roads, continues to 

limit and/or degrade habitat in or 

adjacent to existing colonies/ 

populations. Habitat loss and 

fragmentation, therefore, has 

meaningfully reduced the viability of 

the subspecies. 

Hydrologic Alteration 

Hydrologic alteration is also a factor 

influencing the subspecies’ viability. 

Hydrologic alteration can result from a 

variety of sources, including, but not 

limited to, diversions for agricultural 

and domestic use, erosion and stream 


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channel incision caused by livestock 

grazing, mining, roads, dredging and 

filling of wetlands, removal of beaver 

dams, and creation and operation of 

large human-made dams. For example, 

the only known colony in the Costilla 

population has a diversion ditch 

delimiting its south side that may have 

reduced the size of colony, and that 

ditch and other diversions have allowed 

for extensive agricultural development 

in the drainage that has altered native 

habitat and likely dropped the water 

table in much of the area. The Paradox 

colony in the Montrose/San Juan 

population also has had livestock 

grazing and water diversions occur over 

the last 30 years, which have degraded 

the quality of the wet meadow areas and 

lowered the water table (Ellis and 

Ireland 2018, pers. observation). 

Many drainages in the Sacramento 

Mountains, where the Mescalero 

silverspot colony may have occurred 

(see SSA report), succumbed to incision 

of streams around 1900, in turn 

lowering water tables and eliminating 

wet meadow habitat (Cary 2020b, pers. 

comm.). Incision of stream channels 

occurred due to erosion from 

deforestation, conversion to agricultural 

and grazing lands, mining, etc. (Cary 

2020b, 2020c, pers. comm.). Beavers 

were also eliminated around 1900 in the 

Sacramento Mountains (and other parts 

of the West), which also undoubtedly 

caused reduction of water tables and 

elimination of wet meadow habitat 

suitable for the silverspot and other 

wetland-dependent species (Cary 2020b, 

2020c, pers. comm.). Hydrologic 

alteration that degrades riparian areas 

and lowers water tables from natural 

systems has occurred not only in the 

Costilla population, Montrose/San Juan 

population, and Sacramento Mountains, 

but extensively in the western United 

States, including much of the 

silverspot’s range. Hydrologic alteration 

continues to limit suitable habitat and is 

a major factor influencing the viability 

of the subspecies. 

Livestock Grazing 

Livestock grazing may cause habitat 

loss and degradation if excessive, 

especially in the naturally scarce 

habitats of the silverspot (Hammond 

and McCorkle 1983, p. 219) and 

depending on the timing and intensity. 

Year-round grazing or heavy summer 

grazing is typically incompatible with 

silverspots because livestock graze on 

the violet leaves, nectar sources, and 

other vegetation necessary for the 

butterfly when the larvae and adults 

need them (Ellis 1999, p. 5). For 

example, an area adjacent to a known 

site in the Ouray population has 

underlying hydrology and soils 

beneficial for silverspots, but the habitat 

is unsuitable due primarily to grazing 

and perhaps to a lesser extent 

occasional mowing for hay (Service 

2021, figure 19). Light or moderate 

summer grazing (up to 20 or 30 percent 

vegetative utilization) may be 

acceptable, but total rest from grazing in 

the summer is preferred (Arnold 1989, 

p. 14; Ellis 2020d, pers. comm.). 

If one or more kinds of vegetation are 

too dense, they can prevent the bog 

violet from persisting and thus cause 

extirpation of the butterfly. This 

occurred in the Unaweep Seep colony 

in the Mesa/Grand population, perhaps 

primarily as a result of spike rush 

(Eleocharis spp.) invasion of meadows 

but also seemingly because of grass, 

sedge, and willow invasion (Arnold 

1989, pp. 9, 14; Ellis 1999, pp. 3, 5, 6). 

It is unknown if this invasion would 

have occurred without grazing or if 

long-term grazing was the factor that 

shifted vegetation. Without occasional 

reduction or removal, herbaceous or 

woody vegetation could crowd out 

violets. Grazing is ongoing in suitable 

habitat for the subspecies and can limit 

availability of habitat throughout the 

range. Although it can be compatible, 

grazing is expected to continue to be a 

major factor influencing the subspecies’ 

viability. 

Genetic Isolation 

Isolation can cause detrimental 

genetic and demographic effects and is 

a concern for the silverspot’s population 

resiliency as well as redundancy and 

representation. Genetic isolation within 

the populations of silverspot analyzed 

in the SSA report does not currently 

appear to be an issue but may be in the 

future, especially if some populations 

become extirpated, leaving remaining 

populations even more isolated than in 

the current condition (Grishin 2020a, 

pers. comm.). Lower levels of genetic 

diversity can reduce the capacity of a 

population to respond to environmental 

change (i.e., representation) and may 

lead to reduced population fitness, such 

as longevity and fecundity (Darvill et al. 

2006, p. 608). Another silverspot 

subspecies, S. n. apacheana, has low 

genetic diversity, likely from genetic 

drift (disappearance of genes as 

individuals die), as a result of genetic 

isolation and small population sizes 

(Britten et al. 1994). Genetic exchange 

between and within populations can 

alleviate problems with genetic drift and 

augment populations demographically. 

In S. n. apacheana, routine dispersal 

distances up to 2.5 mi (3.9 km) were 

documented, and 26 percent of the 

recaptured butterflies had emigrated 

from the initial patch of capture 

(Fleishman et al. 2002, p. 708). This 

migration appears to play an important 

role for S. n. apacheana populations 

both demographically and genetically 

(Britten et al. 2003, p. 232). 

Consequently, the ability or inability of 

individuals to migrate between colonies 

and populations is expected to also be 

of benefit or detriment, respectively, for 

silverspot. 

Genetic isolation among populations 

of silverspot suggests reduced 

population fitness from genetic drift or 

for other reasons could be of concern in 

the future (Cong et al. 2019). All known 

silverspot populations are at least 24.5 

mi (39 km) from each other and are 

genetically isolated from each other 

(Cong et al. 2019). Genetic analysis 

recently revealed that the Grand County 

colony is genetically similar to the Mesa 

County colonies and, hence, are part of 

the same population. Until recently (20– 

30 years ago), when Unaweep Seep was 

extant, the Grand County colony and 

Unaweep Seep colony in Mesa County 

were just under 20 mi (32 km) apart. 

Because alleles within genes can remain 

in the genome for hundreds or 

thousands of years, 20–30 years is a 

short time frame for separation of 

genetically similar colonies. Therefore, 

based on the latest scientific evidence 

(Cong et al. 2019), populations that are 

at least 20 miles apart are assumed to be 

separate populations. Currently, the 

distance between the two closest 

populations, which we know are 

genetically different and represent 

separate populations, is 24.5 air miles 

(39 km) (between the Taos and San 

Miguel/Mora populations in New 

Mexico). Consequently, and more 

specifically, the distance where 

populations of silverspot may not 

interbreed and thus may not support 

each other genetically or 

demographically appears to be 

somewhere between 20 and 24.5 air 

miles (32 and 39 km). The minimum 

distance of 20 mi (32 km), based on 

findings of Cong et al. (2019), was used 

in our analysis of genetic connectivity 

(see Current Condition, below). 

Reasons for isolation, specifically 

whether from natural fragmentation or 

human habitat alteration, are not 

currently known for all colonies. It is 

also not known how long single 

colonies may have been isolated from 

each other. Like the large Taos colony 

of silverspot, if an isolated colony has 

enough area of habitat to support a large 

population, it may be resilient enough 

to survive without nearby colonies and 

thus maintain viability for a long time. 

However, many of the silverspot 

populations, whether single-colony or 


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multi-colony metapopulations, have 

limited amounts of habitat. It is 

unknown specifically how long it will 

take for low genetic diversity to become 

a threat to the silverspot, but isolation 

of populations indicates that loss of 

genetic diversity could be a threat at 

some point, if loss of populations 

through lack of demographic support 

does not occur first, and both are cause 

for concern for the subspecies’ viability. 

Exotic Plant Invasion 

The Taos population has experienced 

some invasion by the exotic Siberian 

elm (Ulmus pumila). Because Siberian 

elm is widespread in the butterfly’s 

range, we expect Siberian elm to 

increase if changes in climate reduce 

snowpack and water levels in the wet 

meadows of the Taos population (Cary 

2020a, pers. comm.) or other 

populations. Similarly, the extirpated 

Unaweep Seep colony location was 

invaded by other exotic species, 

including Himalayan blackberry (Rubus 

armeniacus) and tree-of-heaven 

(Ailanthus altissima). Although not 

known to occupy other colonies at 

present, these plant species could 

invade other colonies (Plank 2020, pers. 

comm.). Other exotic woody or 

herbaceous species (such as Russian 

olive (Elaeagnus angustifolia), tamarisk 

(Tamarix spp.), or leafy spurge 

(Euphorbia esula)) can rapidly take over 

habitat and could eliminate bog violets 

and other native plants. However, there 

is currently little to no data on plants at 

the colonies (Ellis 1989, pp. 14–15). 

Some nonnative thistles, such as 

Canada thistles (Cirsium arvense), occur 

in or around colonies and can create 

monocultures that create poor overall 

habitat conditions for the silverspot and 

bog violet by replacing native species 

(Ellis 1989, p. 14; Selby 2007, p. 30). 

Land managers in the West sometimes 

control the spread of exotic thistles, but 

Canada thistles (as well as native thistle) 

provide a nectar source for silverspots. 

Additionally, the adventive (exotic but 

not well-established) bull thistle (C. 

vulgare) and burdock (Arctium minus) 

can provide nectar sources (Ellis 1989, 

p. 14). Because silverspots use exotic 

thistles, aggressive control of them has 

been advised against (Fisher 2020b, 

pers. comm.). It does not appear that 

monocultures of Canada thistle or other 

exotic vegetation have replaced native 

vegetation beneficial for the butterfly at 

observed colonies (Ellis and Ireland 

2018, pers. observation), but study of 

plant composition at all of the colonies 

is needed to determine levels of exotic 

plant presence. Exotic plant invasion is 

currently considered a minor factor 

because exotic species are not currently 

known to be significantly influencing 

the subspecies’ viability. 

Climate Events 

Climate events are defined in the SSA 

as events that would happen within the 

range of normal variability (i.e., 

stochastic events). However, they may 

still cause reduction of habitat and 

number of butterflies. A record of other 

Speyeria in Utah indicates that too 

much rain can reduce numbers of 

butterflies but may be beneficial to 

violets, which can support greater 

numbers of butterflies the following 

year(s) (Myrup 2020b, pers. comm.). 

Similarly, floods may at least 

temporarily reduce habitat and 

vegetation as well as butterfly numbers. 

For instance, the Lake Fork River in 

northeast Utah flooded in spring 2019, 

limiting or causing extirpation of related 

silverspot butterflies at a known colony 

in the Uinta Mountains (Ellis et al. 2019, 

pers. observation) that had been there 

the year before (Myrup 2019, pers. 

comm.). However, the flood event was 

not outside the norm for past observed 

flood events in that drainage. This 

stochastic event provides an example of 

normal climate events that can cause 

reduction in numbers of individual 

butterflies or temporary extirpation of a 

colony but are not expected to cause 

permanent reduction or extirpation. 

Thus, climate events are not expected to 

reduce the subspecies’ viability in the 

long term and are considered as a minor 

factor influencing the subspecies’ 

viability. 

Climate Change 

The climate within the silverspot’s 

range already appears to be changing as 

a result of increased greenhouse gas 

emissions, with earlier springs and 

warmer temperatures. Average 

temperatures in Colorado increased in 

the 30 years prior to 2014 by 2 degrees 

Fahrenheit (°F) (1.1 degrees Celsius 

(°C)), and by 2.5 °F (1.4 °C) in the last 

50 years (Lukas et al. 2014, p. 2). 

Snowpack, as measured by snow water 

equivalent, has mostly been below 

average in Colorado since 2000. The 

timing of snowmelt and peak runoff has 

also shifted 1 to 4 weeks earlier in the 

last 30 years in Colorado. Furthermore, 

the Palmer Drought Severity Index has 

shown an increasing trend in soilmoisture drought conditions due to 

below average precipitation since 2000 

and the warming trend (Lukas et al. 

2014, p. 2). More recent analysis using 

National Oceanic and Atmospheric 

Administration (NOAA) temperature 

data shows that, since 1895, the average 

temperature in much of the northern 

half of the silverspot’s range has 

increased by, or more than, 3.6 °F (2 °C), 

and it is reported that average annual 

flows in the Colorado River Basin have 

declined by 20 percent over the past 

century (Eilperin 2020, entire). 

However, tree ring and other 

paleoclimate data indicate that there 

were more severe and sustained 

droughts prior to recent climate data 

(since 1900) (Lukas et al. 2014, pp. 2, 3). 

The butterfly has survived through the 

more severe past droughts and, despite 

noted changes in climate over the last 

36 years, climate has thus far not been 

a detectable factor in reduction of the 

subspecies’ viability. Consequently, at 

the present and for the current 

condition analysis in the SSA report, 

climate change is considered a minor 

factor. However, climate appears to be at 

the verge of becoming a major factor; see 

additional discussion of climate change 

under Future Condition, below. 

Desiccation of Larvae 

Desiccation of overwintering larvae 

may be a stressor if soil moisture and air 

humidity is too low or if larvae cannot 

remain hydrated. It is suspected that 

soil moisture and dead vegetation, along 

with some air flow, provide suitable 

conditions that prevent desiccation 

(Fisher 2020c, pers. comm.). Hydration 

also appears to be needed prior to first 

instar larvae overwintering and is 

achievable if water for drinking is freely 

available and if soil or air moisture is 

sufficient for absorption (Myrup 2020a, 

pers. comm.; Stout 2020, unpaginated). 

Snow cover may also provide some 

desiccation prevention and thermal 

cover, although it may not be a 

significant factor (Ellis 2020e, pers. 

comm.). Snow cover may be of benefit 

during extreme cold (Fisher 2020a, pers. 

comm.). In general, however, extreme 

cold in the silverspot’s range is 

preceded by snow; thus, extreme cold 

may kill some larvae but is likely not a 

major factor that reduces the subspecies’ 

viability. 

Collecting 

Collecting has occurred in silverspot 

colonies, and it is possible collecting in 

small colonies could negatively affect 

population resiliency (Ellis 1989, p. 15; 

Selby 2007, p. 31). We know of one 

example of a potential colony 

extirpation related to over-collection 

(Scott 2020, pers. comm.). However, 

collecting is not currently thought to be 

a significant stressor for silverspot since 

most colonies occur on private land, 

colony locations are largely unknown to 

the public, and current collecting 

pressure is not thought to be extensive 

(Ellis 2020f, pers. comm.). In terms of 

effect on the current condition of the 


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subspecies, collecting is currently 

considered a minor factor, and efforts 

should be taken to keep it a minor factor 

in the future. There is concern with 

collecting if public land, or even private 

land, colony locations are revealed in 

the future, but currently this factor does 

not appear to be significantly reducing 

the subspecies’ viability. However, 

losing even one of the remaining 

populations to collection could have a 

substantial impact on the subspecies’ 

redundancy and representation. We are 

concerned with the potentially 

detrimental effects to the subspecies 

from future collection if silverspot 

locations, especially smaller 

populations, are made public, which 

would facilitate increased collection 

and potentially cause collection to 

become a major factor affecting the 

subspecies’ viability (see III. Critical 

Habitat, below). 

Cumulative Effects 

By using the SSA framework to guide 

our analysis of the scientific information 

documented in the SSA report, we have 

not only analyzed individual effects of 

factors on the subspecies, but we have 

also analyzed their potential cumulative 

effects. We incorporate the cumulative 

effects into our SSA analysis when we 

characterize the current and future 

condition of the subspecies. To assess 

the current and future condition of the 

subspecies, we undertake an iterative 

analysis that encompasses and 

incorporates the threats individually 

and then accumulates and evaluates the 

effects of all the factors that may be 

influencing the subspecies, including 

threats and conservation efforts. Habitat 

loss and fragmentation, human-caused 

hydrologic alteration, livestock grazing, 

genetic isolation, exotic plant invasion, 

climate change, climate events, larval 

desiccation, and collecting are all 

factors that influence or could influence 

the subspecies’ viability. These factors 

also have the potential to act 

cumulatively to impact silverspot 

viability and their cumulative impacts 

were considered in our characterization 

of the subspecies’ current and future 

condition in the SSA. Because the SSA 

framework considers not just the 

presence of the factors, but to what 

degree they collectively influence risk to 

the entire subspecies, our assessment 

integrates the cumulative effects of 

factors and replaces a standalone 

cumulative effects analysis. 

Beneficial Factors 

Mowing or Haying: Mowing or haying 

occasionally or once a year could be 

beneficial to open the canopy for 

violets, reduce a buildup of thatch from 

dead vegetation, and keep woody 

vegetation from encroaching beyond 

what is suitable for the butterfly. 

Mowing or haying may approximate 

disturbance that would have occurred 

historically from native ungulate grazing 

and/or wildfire. Mowing in the early 

summer would allow for regrowth of 

vegetation and nectar sources suitable 

for the silverspot (Ellis 2020d, pers. 

comm.). However, mowing once in the 

late summer or early fall could 

potentially be compatible (Smith 2019, 

pers. comm.) but has a higher risk of 

reducing vegetation and nectar sources 

for that year’s pupae and adults and 

possibly crushing pupae, eggs, and 

larvae. Occasional or once-yearly 

mowing can, nonetheless, be beneficial 

to reduce competition from other plants 

if adequate nectar sources remain in the 

field or if there are enough within a 

short distance around the field to 

supply nectar to adult silverspots. 

Grazing: Winter and spring grazing 

(October to mid-April) can be beneficial 

to silverspots (Arnold 1989, pp. 14–15). 

This is because removal of thatch from 

the dead vegetation limits competition 

in the spring for the violets and can 

reduce woody vegetation so that it does 

not encroach beyond what is suitable for 

the butterfly. It also may approximate 

historical grazing patterns by native 

ungulates (deer and elk), which come 

down to lower valleys in the winter 

where there is less snow. Horses grazed 

an apparently healthy colony in the 

spring and summer (Arnold 1989, p. 

14), so some light to moderate grazing 

in the spring or summer may be 

acceptable. In contrast, grazing when 

violets have emerged and are actively 

growing (spring and summer) may be 

detrimental if livestock readily consume 

or trample the violets and possibly eggs, 

larvae, and pupae. 

Burning: Burning of meadows to 

reduce dead vegetation and reduce 

woody vegetation to suitable levels for 

the butterfly can also be beneficial and 

can possibly increase violet density 

(Arnold 1989, p. 14; Ellis 1989, p. 14). 

Exotic Plant Invasion: Some exotic 

plants considered invasive or adventive 

may provide nectar sources that benefit 

silverspots (Ellis 1989, p. 14; Fisher 

2020b, pers. comm.). However, 

especially with invasive plants, this 

may only be the case where native 

nectar sources have been substantially 

reduced or eliminated. 

Conservation Efforts: The historical 

Unaweep Seep colony in the Mesa/ 

Grand population was designated as a 

State Natural Area in 1983 (Ellis 1999, 

p. 2). The Bureau of Land Management 

(BLM) also established a Research 

Natural Area around it in 1983 (Ellis 

1989, p. 1), and designated it as an Area 

of Critical Environmental Concern 

through their 2015 Resource 

Management Plan (Plank 2017, pers. 

comm.). Some monitoring, at least for 

the bog violet, occurred through 1999 

(Ellis 1999, entire), but sometime after 

1989 or possibly 1999, the colony 

became extirpated (Ellis 1999, pp. 2, 7). 

Habitat monitoring actions were 

recommended, but it is unclear whether 

any of them were ever implemented 

(Ellis 1999, pp. 8–9). Although the State 

of Colorado and the BLM implemented 

land conservation designations around 

the Unaweep Seep colony in the Mesa/ 

Grand population, this colony has been 

extirpated for at least 20 years. 

Therefore, unless the bog violet and 

silverspot are translocated back to 

Unaweep Seep, the land designations do 

not benefit the silverspot. There are no 

other State regulatory mechanisms that 

benefit the butterfly in Colorado, New 

Mexico, or Utah. The Colorado Wildlife 

Action Plan (WAP) includes the 

silverspot butterfly, but there are no 

State statutes for management of the 

silverspot, so management would occur 

through cooperative efforts with other 

agencies or organizations. 

The BLM (Colorado), U.S. Forest 

Service (USFS) Region 2 (Colorado), and 

USFS Region 3 (New Mexico) have the 

butterfly on their sensitive species lists. 

The USFS Region 4 (Utah) does not, but 

no silverspots are currently known on 

USFS land in Utah. No silverspot 

colonies are currently known on USFS 

land in Colorado or New Mexico either, 

but the elevational range of the 

subspecies includes some lower 

elevation USFS land. The BLM does not 

have the silverspot on its sensitive 

species lists in either Utah or New 

Mexico. If species are on BLM sensitive 

species lists, that means that the BLM 

works cooperatively with other Federal 

and State agencies and 

nongovernmental organizations to 

conserve these species and ensure that 

activities on public lands do not 

contribute to the need for their listing 

under the Act. Specific conservation 

objectives for BLM sensitive species are 

established in BLM land use plans. 

BLM’s Grand Junction Field Office 

manages the Unaweep Seep property 

and mentions management of the area 

for the butterfly in their 2015 Resource 

Management Plan (Plank 2017, pers. 

comm.). The butterfly is not included in 

other BLM land use plans in any of the 

other BLM resource areas in Colorado, 

New Mexico, or Utah since the butterfly 

was not known to occur on BLM land 

in other areas until very recently (only 

one additional colony). 


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Only three silverspot colonies are 

known to occur on public land 

(including State lands), but there is 

potentially a fourth colony 

(unconfirmed) on public land based on 

recent bog violet locations for the 

Garfield population. Consequently, at 

present, any regulatory mechanisms or 

conservation efforts on State, BLM, and 

USFS lands, although contributing to 

conservation of silverspots, would have 

a low impact on the silverspot’s overall 

viability since the majority of 

populations and colonies are entirely or 

mostly on private land. 

Current Condition 

We assessed current conditions of 

silverspot populations in relation to the 

ecological requirements of this 

subspecies. Measurements available that 

are consistent across populations are 

habitat patch size, number of colonies, 

and approximate distance between 

colonies within a population from 

which genetic connectivity can be 

estimated. Additionally, the presence 

and potential influence of the three 

major habitat factors affecting the 

subspecies (habitat loss and 

fragmentation, grazing, and hydrologic 

alteration) were derived from aerial 

imagery and/or on-the-ground 

knowledge. Therefore, these metrics are 

used to characterize the current 

resiliency condition of populations (see 

the SSA report’s section 3.5 ‘‘Current 

Condition by Population’’ on how 

metric ranks were derived; Service 

2021). 

Resiliency rankings and categories 

were established based on best available 

information and professional opinion of 

species experts. Habitat patch sizes are 

estimates based on expert opinion using 

aerial imagery based on best estimates of 

individual colony bog violet areas and 

primary nectar source areas. 

Determination of the number and status 

of colonies within a population was 

primarily based on expert input. 

There are 10 populations comprised 

of 19 colonies of the silverspot butterfly. 

Two populations, Archuleta and 

Garfield, were not included in the 

genetic analysis by Cong et al. (2019) 

due to a lack of samples, but we 

consider them to be part of the 

silverspot butterfly subspecies due to 

their geographic proximity to confirmed 

populations. 

Within the range and among all 10 

populations, four known colonies have 

been extirpated. Three of these 

extirpations occurred relatively recently 

(in about the last 30 years) and one, 

Beulah, perhaps as long ago as 117 years 

(Scott and Fisher 2014, p. 3). Not 

including the extirpated colonies or 

stray sightings, and based on recent 

surveys or expert input, 19 colonies are 

considered extant that make up the 10 

populations. 

Resiliency for each population was 

scored using metrics for population size 

(in acres), number of colonies within 

populations, connectivity within 

populations, and habitat condition. 

Resiliency scores are categorized as 

follows: 0’s: Predicted extirpation 

(future scenarios only); 1’s: Very low 

resiliency; 2’s and 3’s: Low resiliency; 

4’s to 6’s: Moderate resiliency; 7’s and 

above: High resiliency (Table 1). 

According to our current condition 

analysis in the SSA report, five 

populations have very low resiliency. 

One population has low resiliency, two 

populations have moderate resiliency, 

and two populations have high 

resiliency (Table 1). 

TABLE 1—CURRENT CONDITION RESILIENCY RANKINGS FOR SILVERSPOT POPULATIONS

Population Size in ac 

(ha) 

Number of 

colonies 

Population 

resiliency 

score 

Archuleta ...................................................................................................................................... 11.9 (4.8) 1 1 

Conejos ........................................................................................................................................ 39.2 (15.9) 1 3 

Costilla ......................................................................................................................................... 4.3 (1.7) 1 1 

Garfield ........................................................................................................................................ 1.0 (.4) 1 1 

La Plata ........................................................................................................................................ 5.2 (2.1) 1 1 

Mesa/Grand ................................................................................................................................. 66.4 (26.9) 6 9 

Montrose/San Juan ...................................................................................................................... 1.0 (.4) 2 4 

Ouray ........................................................................................................................................... 59.3 (24) 3 6 

San Miguel/Mora .......................................................................................................................... 1.0 (.4) 1 1 

Taos ............................................................................................................................................. 521.2 (210.9) 2 8 

With 10 populations spread across 

284 air miles (457 km) north to south 

and 237 air miles (381 km) east to west, 

there appears to be adequate 

redundancy should catastrophic events 

occur that cause extirpation of one or a 

few populations. However, if 

catastrophic events cause extirpation of 

the populations with the highest 

resiliency (Mesa/Grand, Taos, and 

Ouray), it could be quite detrimental to 

the viability of the subspecies because 

six of the remaining populations have 

very low or low resiliency. Due to the 

uncertainty as to whether all 

populations are truly extant, and due to 

low resiliency of many populations, 

more populations with sufficient 

resiliency would contribute to the 

subspecies’ viability. However, 

assuming all populations are still extant, 

we consider the current condition of the 

subspecies’ redundancy to be moderate. 

Eight silverspot butterfly populations 

were identified based on genetic 

differentiation (Cong et al. 2019, entire). 

The other two populations were 

designated as such because they are 

more than 20 air miles (32 km) away 

from other populations (41 and 80 mi 

(66 and 129 km)) and it is likely 

populations more than 20 mi (32 km) 

apart are not genetically connected 

(Ellis 2020c, pers. comm.; Grishin 

2020b, pers. comm.). It is likely these 

genetic differences provide some 

adaptability, or representation. 

However, since many of the populations 

are comprised of a single colony and all 

populations appear isolated from one 

another, genetic drift could be causing 

limited genetic diversity, which is a 

concern for the subspecies. The 10 

silverspot populations capture the 

genetic and ecological variation 

currently known for this subspecies. In 

general, the bog violet and butterfly 

occur in the same habitat across the 

range, but ecological representation 

adds to adaptive capacity since the 

silverspot occurs at different elevations, 

so that overall, the silverpot has low to 

moderate representation. Future 

analysis of ecological settings at all 

colonies/populations is needed to 

improve our understanding of 

representation across the subspecies’ 

range. 

In summary, there are currently 19 

colonies representing the 10 


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populations that are considered extant. 

In terms of resiliency, five populations 

are in very low condition, one in low 

condition, two in moderate condition, 

and two in high condition. Current 

redundancy is determined to be 

moderate, and representation is thought 

to be low to moderate. 

Future Condition 

In the SSA report, we forecast the 

resiliency of silverspot populations and 

the redundancy and representation of 

the subspecies over the next 30 years (to 

the year 2050) using a range of plausible 

future scenarios. We selected 30 years 

because climate model projections are 

relatively similar up to this point. Also, 

climate change impacts and human 

habitat impacts are likely to be the 

biggest drivers of changes to resiliency, 

redundancy, and representation for this 

subspecies. We used future climate 

projections developed for southern 

Colorado and northern New Mexico 

(Rangwala 2020a, 2020b). Four climate 

models captured the range of model 

projections; thus, we evaluate four 

future scenarios that capture the range 

of plausible futures. Three of the four 

models use representative concentration 

pathway (RCP; a greenhouse gas 

concentration trajectory) 4.5 and the 

fourth uses RCP8.5. RCP4.5 is 

considered a medium emissions 

scenario. RCP8.5 is considered a high 

emissions scenario. The higher the 

emissions, the greater chance the 

climate will change further from the 

1971–2000 baseline. Current policies are 

projected to take us slightly above the 

RCP4.5 emission trends by mid-century 

(Hausfather and Peters 2020, p. 260). 

The climate models are presented in 

tables 5 and 6 in the SSA report (Service 

2021). 

Using the four climate scenarios, we 

developed four future condition 

scenarios to evaluate the future viability 

of the subspecies. In simple terms, the 

four scenarios include: 

Scenario 1: Warm Climate with 

Conservation Efforts 

Scenario 2: Hot and Dry Summers/Very 

Wet Winters with Conservation 

Efforts 

Scenario 3: Very Hot and Very Dry 

Summers/Wet Winters with No 

Conservation Efforts 

Scenario 4: Hot and Very Dry Summers/ 

Dry Winters with No Conservation 

Efforts 

In addition to the effects of climate 

change, we also considered effects of 

human-caused impacts. In evaluating 

the effects of scenarios on silverspot 

populations, if available information 

indicated hydrology of colonies/ 

populations will be impacted by human 

activity a negative habitat factor rank 

was applied to future resiliency scores 

(Service 2021, p. 46). 

Because Scenarios 1 and 2 considered 

potential future conservation efforts, 

which are not certain to occur and are 

not formalized in any conservation 

agreements, we did not consider these 

scenarios when determining if the 

silverspot meets the Act’s definition of 

an endangered species or of a threatened 

species. However, scenarios 1 and 2 will 

inform our strategies for recovery of the 

species. Therefore, our analysis in this 

proposed rule focuses on the future 

condition of the silverspot under 

scenarios 3 and 4, as summarized 

below. Refer to the SSA report for full 

descriptions of the future scenarios 

(Service 2021, chapter 4). 

Scenario 3 

Scenario 3 is characterized as follows: 

• Some increase in direct habitat loss 

due to development occurs, particularly 

in colonies close to existing housing 

development. 

• Habitat fragmentation due to 

agricultural conversion is not reduced. 

• Light to heavy summer grazing 

occurs. 

• No efforts are made to maintain 

current hydrology. 

• All populations will have a negative 

habitat factor rank due to climaterelated hydrologic alteration whether 

there is surrounding development or 

not. 

• No translocations of butterflies are 

implemented, and genetic diversity 

remains in a likely low state. 

• Climate emissions follow RCP8.5. 

Scenario 4 

Scenario 4 is characterized as follows: 

• Some increase in direct habitat loss 

due to development occurs, particularly 

in colonies close to existing housing 

development. 

• Habitat fragmentation due to 

agricultural conversion is not reduced. 

• Light to heavy summer grazing 

occurs. 

• No efforts are made to maintain 

current hydrology (but even if so, those 

efforts are ineffective in the face of 

extreme drought). 

• All populations will have a negative 

habitat factor rank due to climaterelated hydrologic factors regardless of 

absence of nearby development or 

agricultural activity or existing 

development and no conservation 

efforts. 

• No translocations of butterflies are 

implemented, and genetic diversity 

remains in a likely low state. 

• Climate emissions follow RCP4.5. 

Results of Scenarios 3 and 4 

Resiliency rankings for each 

population under Scenario 3 can be 

found in the SSA report (Service 2021, 

table 11; Table 2 below). Five of the 

previously ranked low or very low 

resiliency populations under current 

conditions are expected to become 

extirpated, one population has a very 

low resiliency, three are low resiliency, 

and the Ouray population retains a 

moderate resiliency passing the Mesa/ 

Grand and Taos populations as the 

highest-ranking population. Extirpation 

of colonies will reduce resiliency and 

redundancy of populations, and will 

also undoubtedly decrease 

representation from the current 

condition, causing a decline in 

subspecies’ viability compared to the 

current condition. 

Resiliency rankings for each 

population under Scenario 4 can be 

found in the SSA report (Service 2021, 

table 12). As in Scenario 3, it is 

expected that climate change will cause 

extirpation of all small colonies/ 

populations under 12 ac (5 ha). The size 

of habitat in remaining populations 

increases very slightly in Colorado 

populations compared to Scenario 3. 

Habitat decreases in the Taos 

population from Scenario 3 but not 

enough to change the size ranking. With 

there being slightly less evaporative 

stress and slightly less frequency of 

severe drought under Scenario 4 

compared to Scenario 3, remaining 

populations may, in turn, be slightly 

more resilient. However, using the 

resiliency ranking metrics in the SSA 

report, the increase in resiliency in 

Scenario 4, compared to Scenario 3, is 

not sufficient to change the ranking of 

these populations. Consequently, 

resiliency rankings are the same as those 

in Scenario 3, with five extirpated 

populations, one very low and three low 

resiliency populations, and only one 

moderately resilient population. 

Redundancy of populations also 

remains low, and representation is also 

decreased from the current condition. 

Summary of Current and Future 

Conditions 

A comparison of the resiliency of each 

population for the current condition and 

future scenarios is presented below in 

Table 2 along with summaries of 

redundancy and representation (also 

Service 2021, table 13). Currently, we 

have determined that five of the 10 

extant populations of silverspot are in a 

very low resiliency condition, one is 

low resiliency, two are moderate 

resiliency, and two of the largest 

populations are in high resiliency 


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condition. With 10 populations spread 

across the subspecies’ range, there 

appears to be adequate redundancy 

should catastrophic events occur that 

cause extirpation of one or a few 

populations, and we consider current 

redundancy to be moderate for the 

silverspot. It is likely there is 

representation of adaptability due to the 

genetic differences observed among 

populations. However, many of the 

populations are composed of a single 

colony, and all populations appear 

isolated genetically. In general, the bog 

violet and butterfly occur in the same 

habitat across the subspecies’ range, but 

ecological representation adding to 

adaptive capacity through occurrence at 

different elevations gives a low-tomoderate subspecies representation 

currently. 

Climate is predicted to change 

significantly over the next 30 years in 

scenarios 3 and 4, resulting in 

conditions that cause resiliency, 

redundancy, representation to decrease, 

and thus the subspecies’ viability is 

expected to decrease from the current 

condition. Resiliency rankings are the 

same for scenarios 3 and 4 with five 

extirpated populations, one very low 

and three low resiliency populations, 

and only one moderately resilient 

population. Redundancy of populations 

and representation are both reduced 

from the current condition. 

TABLE 2—SUMMARY OF SILVERSPOT RESILIENCY, REDUNDANCY, AND REPRESENTATION FOR CURRENT CONDITION AND

FOUR FUTURE SCENARIOS

Population Current condition 

resiliency 

Future scenario 3 

resiliency 

Future scenario 4 

resiliency 

Archuleta .......................................................................... 1 ......................................... 0 ......................................... 0. 

Conejos ............................................................................ 3 ......................................... 2 ......................................... 2. 

Costilla ............................................................................. 1 ......................................... 0 ......................................... 0. 

Garfield ............................................................................ 1 ......................................... 0 ......................................... 0. 

La Plata ........................................................................... 1 ......................................... 0 ......................................... 0. 

Mesa/Grand ..................................................................... 9 ......................................... 3 ......................................... 3. 

Montrose/San Juan ......................................................... 4 ......................................... 1 ......................................... 1. 

Ouray ............................................................................... 6 ......................................... 5 ......................................... 5. 

San Miguel/Mora ............................................................. 1 ......................................... 0 ......................................... 0. 

Taos ................................................................................. 8 ......................................... 3 ......................................... 3. 

Redundancy ..................................................................... Moderate ........................... Very Low ........................... Very Low. 

Representation ................................................................ Low-Moderate .................... Low .................................... Low. 

Determination of Silverspot’s Status 

Under the Act, the term ‘‘species’’ 

includes any subspecies of fish or 

wildlife or plants, and any distinct 

population segment of any species of 

vertebrate fish or wildlife which 

interbreeds when mature (16 U.S.C. 

1532(16)). Section 4 of the Act (16 

U.S.C. 1533) and its implementing 

regulations (50 CFR part 424) set forth 

the procedures for determining whether 

a species meets the definition of an 

endangered species or a threatened 

species. The Act defines an 

‘‘endangered species’’ as a species in 

danger of extinction throughout all or a 

significant portion of its range, and a 

‘‘threatened species’’ as a species likely 

to become an endangered species within 

the foreseeable future throughout all or 

a significant portion of its range. The 

Act requires that we determine whether 

a species meets the definition of 

endangered species or threatened 

species because of any of the following 

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. 

Status Throughout All of Its Range 

We have carefully assessed the best 

scientific and commercial information 

available regarding the past, present, 

and future threats to the silverspot 

butterfly across its range in the United 

States. We found habitat loss and 

fragmentation (Factor A), incompatible 

livestock grazing (Factor A), humancaused hydrologic alteration (Factor A), 

and genetic isolation (Factor E) to be the 

main drivers of the subspecies’ current 

condition, with the addition of the 

effects of climate change (Factor E) 

influencing future condition. These 

stressors all contribute to loss of habitat 

quantity and quality for the silverspot 

and for the bog violet, the plant on 

which silverspot larvae exclusively 

feed. These threats can currently occur 

anywhere in the range of the silverspot, 

and future effects of climate change are 

expected to be ubiquitous throughout 

the subspecies’ range. The existing 

regulatory mechanisms (Factor D) do 

not significantly affect the subspecies or 

ameliorate these stressors; thus, these 

stressors continue and are predicted to 

increase in prevalence in the future. 

Under the two future scenarios 

considered in this evaluation, we expect 

some populations to become extirpated 

and resiliency of the remaining 

populations to decrease. This would 

result in decreased redundancy and 

representation in the future compared to 

the current condition. 

We find that the silverspot is not 

currently in danger of extinction 

because the subspecies is still 

widespread with multiple populations 

of various sizes and resiliency spread 

across its range, capturing known 

genetic and ecological variation. 

Therefore, the subspecies currently has 

sufficient redundancy and 

representation to withstand catastrophic 

events and maintain adaptability to 

changes. However, we expect that the 

stressors, individually and 

cumulatively, will reduce resiliency, 

redundancy, and representation within 

all parts of the range within the 

foreseeable future in light of future 

climate change effects. 

After evaluating threats to the 

subspecies and assessing the cumulative 

effect of the threats under the section 

4(a)(1) factors, we find that the 

silverspot is likely to become 

endangered throughout all of its range 

within the foreseeable future. This 

finding is based on anticipated 

reductions in resiliency, redundancy, 

and representation in the future as a 

result of predicted loss and degradation 

of wet meadow habitat from the 

synergistic and cumulative interactions 

between climate change and other 

stressors. Climate change is predicted to 

increase temperatures and decrease 

water availability and snowpack 


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necessary to maintain the wet meadows 

that the silverspot and bog violet need. 

This, coupled with the continuation of 

other stressors that alter hydrology and 

cause habitat loss and fragmentation, is 

expected to impact the future viability 

of this subspecies. We can reasonably 

determine that both the future threats 

and the subspecies’ responses to those 

threats are likely within a 30-year 

timeframe (i.e., the foreseeable future). 

Thus, after assessing the best available 

information, we determine that the 

silverspot is not currently in danger of 

extinction but is likely to become in 

danger of extinction within the 

foreseeable future throughout all of its 

range. 

Status Throughout a Significant Portion 

of Its Range 

Under the Act and our implementing 

regulations, a species may warrant 

listing if it is in danger of extinction or 

likely to become so in the foreseeable 

future throughout all or a significant 

portion of its range. The court in Center 

for Biological Diversity v. Everson, 2020 

WL 437289 (D.D.C. Jan. 28, 2020) 

(Center for Biological Diversity), vacated 

the aspect of the Final Policy on 

Interpretation of the Phrase ‘‘Significant 

Portion of Its Range’’ in the Endangered 

Species Act’s Definitions of 

‘‘Endangered Species’’ and ‘‘Threatened 

Species’’ (79 FR 37578; July 1, 2014) 

that provided that the Service does not 

undertake an analysis of significant 

portions of a species’ range if the 

species warrants listing as threatened 

throughout all of its range. Therefore, 

we proceed to evaluating whether the 

species is endangered in a significant 

portion of its range—that is, whether 

there is any portion of the species’ range 

for which both (1) the portion is 

significant; and (2) the species is in 

danger of extinction in that portion. 

Depending on the case, it might be more 

efficient for us to address the 

‘‘significance’’ question or the ‘‘status’’ 

question first. We can choose to address 

either question first. Regardless of 

which question we address first, if we 

reach a negative answer with respect to 

the first question that we address, we do 

not need to evaluate the other question 

for that portion of the species’ range. 

Following the court’s holding in 

Center for Biological Diversity, we now 

consider whether there are any 

significant portions of the species’ range 

where the species is in danger of 

extinction now (i.e., endangered). In 

undertaking this analysis for the 

silverspot, we choose to address the 

status question first—we consider 

information pertaining to the geographic 

distribution of both the subspecies and 

the threats that the subspecies faces to 

identify any portions of the range where 

the subspecies is endangered. 

For the silverspot, we considered 

whether the threats are geographically 

concentrated in any portion of the 

subspecies’ range at a biologically 

meaningful scale. We examined the 

following threats: Habitat loss and 

fragmentation; livestock grazing; 

human-caused hydrologic alteration; 

genetic isolation; climate change; 

climate events; invasion by nonnative 

plants; larval desiccation; and 

collecting. These are all factors that 

influence or could influence the 

subspecies’ viability, including 

cumulative effects. All of these threats 

are similar in scope, scale, and 

distribution across the range of the 

subspecies. The spatial distribution of 

these threats is evenly distributed 

throughout the range and not 

concentrated in any particular area. 

However, there are a number of smaller 

populations distributed throughout the 

range that are currently in low 

resiliency condition and therefore could 

experience an elevated risk of extinction 

in the future (see Tables 1 and 2). 

However, these smaller populations are 

not concentrated in their location and 

are not at risk of extinction currently, as 

described in our analysis above. Rather 

their risk of extinction is influenced by 

the predicted future effects of habitat 

loss and degradation, climate change, 

and to a lesser extent the other stressors 

analyzed in this rule. Thus, there are no 

portions of the subspecies’ range where 

the subspecies has a different status 

from its rangewide status. Therefore, no 

portion of the subspecies’ range 

provides a basis for determining that the 

subspecies is in danger of extinction in 

a significant portion of its range, and we 

determine that the subspecies is likely 

to become in danger of extinction 

within the foreseeable future throughout 

all of its range. This is consistent with 

the courts’ holdings in Desert Survivors 

v. Department of the Interior, No. 16– 

cv–01165–JCS, 2018 WL 4053447 (N.D. 

Cal. Aug. 24, 2018), and Center for 

Biological Diversity v. Jewell, 248 F. 

Supp. 3d, 946, 959 (D. Ariz. 2017). 

Determination of Status 

Our review of the best available 

scientific and commercial information 

indicates that the silverspot meets the 

Act’s definition of a threatened species. 

Therefore, we propose to list the 

silverspot as a threatened species in 

accordance with sections 3(20) and 

4(a)(1) of the Act. 

Available Conservation Measures 

Conservation measures provided to 

species listed as endangered or 

threatened species under the Act 

include recognition, recovery actions, 

requirements for Federal protection, and 

prohibitions against certain practices. 

Recognition through listing results in 

public awareness, and conservation by 

Federal, State, Tribal, and local 

agencies, private organizations, and 

individuals. The Act encourages 

cooperation with the States and other 

countries and calls for recovery actions 

to be carried out for listed species. The 

protection required by Federal agencies 

and the prohibitions against certain 

activities are discussed, in part, below. 

The primary purpose of the Act is the 

conservation of endangered and 

threatened species and the ecosystems 

upon which they depend. The ultimate 

goal of such conservation efforts is the 

recovery of these listed species, so that 

they no longer need the protective 

measures of the Act. Section 4(f) of the 

Act calls for 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, selfsustaining, and functioning components 

of their ecosystems. 

Recovery planning consists of 

preparing draft and final recovery plans, 

beginning with the development of a 

recovery outline and making it available 

to the public within 30 days of a final 

listing determination. The recovery 

outline guides the immediate 

implementation of urgent recovery 

actions and describes the process to be 

used to develop a recovery plan. 

Revisions of the plan may be done to 

address continuing or new threats to the 

species, as new substantive information 

becomes available. The recovery plan 

also identifies recovery criteria for 

review of when a species may be ready 

for reclassification from endangered to 

threatened (‘‘downlisting’’) or removal 

from protected status (‘‘delisting’’), 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 

(composed of species experts, Federal 

and State agencies, nongovernmental 

organizations, and stakeholders) are 

often established to develop recovery 


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plans. When completed, the recovery 

outline, draft recovery plan, and the 

final recovery plan will be available on 

our website (https://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, Tribes, 

nongovernmental organizations, 

businesses, and private landowners. 

Examples of recovery actions include 

habitat restoration (e.g., restoration of 

native vegetation), research, captive 

propagation and reintroduction, and 

outreach and education. The recovery of 

many listed species cannot be 

accomplished solely on Federal lands 

because their range may occur primarily 

or solely on non-Federal lands. To 

achieve recovery of these species 

requires cooperative conservation efforts 

on private, State, and Tribal lands. 

If this species is listed, funding for 

recovery actions will be available from 

a variety of sources, including Federal 

budgets, State programs, and cost-share 

grants for non-Federal landowners, the 

academic community, and 

nongovernmental organizations. In 

addition, pursuant to section 6 of the 

Act, the States of Colorado, New 

Mexico, and Utah would be eligible for 

Federal funds to implement 

management actions that promote the 

protection or recovery of the silverspot. 

Information on our grant programs that 

are available to aid species recovery can 

be found at: https://www.fws.gov/grants. 

Although the silverspot is only 

proposed for listing under the Act at 

this time, please let us know if you are 

interested in participating in recovery 

efforts for this subspecies. Additionally, 

we invite you to submit any new 

information on this subspecies 

whenever it becomes available and any 

information you may have for recovery 

planning purposes (see 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 an endangered 

or threatened species and with respect 

to its critical habitat, if any is 

designated. Regulations implementing 

this interagency cooperation provision 

of the Act are codified at 50 CFR part 

402. Section 7(a)(4) of the Act requires 

Federal agencies to confer with the 

Service on any action that is likely to 

jeopardize the continued existence of a 

species proposed for listing or result in 

destruction or adverse modification of 

proposed critical habitat. If a species is 

listed subsequently, section 7(a)(2) of 

the Act requires Federal agencies to 

ensure that activities they authorize, 

fund, or carry out are not likely to 

jeopardize the continued existence of 

the species or destroy or adversely 

modify its critical habitat. If a Federal 

action may affect a listed species or its 

critical habitat, the responsible Federal 

agency must enter into consultation 

with the Service. 

Federal agency actions within the 

subspecies’ habitat that may require 

conference or consultation or both as 

described in the preceding paragraph 

include management and any other 

landscape-altering activities on Federal 

lands administered by the U.S. Fish and 

Wildlife Service, Bureau of Land 

Management, Bureau of Indian Affairs, 

Bureau of Reclamation, National Park 

Service, and U.S. Forest Service; 

issuance of section 404 Clean Water Act 

(33 U.S.C. 1251 et seq.) permits by the 

U.S. Army Corps of Engineers; Natural 

Resources Conservation Service land 

management actions with private 

landowners and other Federal or State 

agencies; construction, maintenance, 

and funding of Federal or State roads or 

highways by the Federal Highway 

Administration; and possibly land 

management or other activities by other 

Federal agencies (such as the Office of 

Surface Mining, Reclamation, and 

Enforcement; Federal Energy Regulatory 

Commission; Western Area Power 

Administration; Federal Aviation 

Administration; Federal 

Communication Commission; Federal 

Emergency Management Agency; 

Environmental Protection Agency, and 

Animal and Plant Health Inspection 

Service). 

It is our policy, as published in the 

Federal Register on July 1, 1994 (59 FR 

34272), to identify to the maximum 

extent practicable at the time a species 

is listed, those activities that would or 

would not constitute a violation of 

section 9 of the Act. The intent of this 

policy is to increase public awareness of 

the effect of a proposed listing on 

proposed and ongoing activities within 

the range of the species proposed for 

listing. The discussion below regarding 

protective regulations under section 4(d) 

of the Act complies with our policy. 

II. Proposed Rule Issued Under Section 

4(d) of the Act 

Background 

Section 4(d) of the Act contains two 

sentences. The first sentence states that 

the Secretary shall issue such 

regulations as she deems necessary and 

advisable to provide for the 

conservation of species listed as 

threatened. The U.S. Supreme Court has 

noted that statutory language like 

‘‘necessary and advisable’’ demonstrates 

a large degree of deference to the agency 

(see Webster v. Doe, 486 U.S. 592 

(1988)). Conservation is defined in the 

Act to mean the use of all methods and 

procedures which are necessary to bring 

any endangered species or threatened 

species to the point at which the 

measures provided pursuant to the Act 

are no longer necessary. Additionally, 

the second sentence of section 4(d) of 

the Act states that the Secretary may by 

regulation prohibit with respect to any 

threatened species any act prohibited 

under section 9(a)(1), in the case of fish 

or wildlife, or section 9(a)(2), in the case 

of plants. Thus, the combination of the 

two sentences of section 4(d) provides 

the Secretary with wide latitude of 

discretion to select and promulgate 

appropriate regulations tailored to the 

specific conservation needs of the 

threatened species. The second sentence 

grants particularly broad discretion to 

the Service when adopting the 

prohibitions under section 9. 

The courts have recognized the extent 

of the Secretary’s discretion under this 

standard to develop rules that are 

appropriate for the conservation of a 

species. For example, courts have 

upheld rules developed under section 

4(d) as a valid exercise of agency 

authority where they prohibited take of 

threatened wildlife, or include a limited 

taking prohibition (see Alsea Valley 

Alliance v. Lautenbacher, 2007 U.S. 

Dist. Lexis 60203 (D. Or. 2007); 

Washington Environmental Council v. 

National Marine Fisheries Service, 2002 

U.S. Dist. Lexis 5432 (W.D. Wash. 

2002)). Courts have also upheld 4(d) 

rules that do not address all of the 

threats a species faces (see State of 

Louisiana v. Verity, 853 F.2d 322 (5th 

Cir. 1988)). As noted in the legislative 

history when the Act was initially 

enacted, ‘‘once an animal is on the 

threatened list, the Secretary has an 

almost infinite number of options 

available to him [or her] with regard to 

the permitted activities for those 

species. He [or she] may, for example, 

permit taking, but not importation of 

such species, or he [or she] may choose 

to forbid both taking and importation 

but allow the transportation of such 

species’’ (H.R. Rep. No. 412, 93rd Cong., 

1st Sess. 1973). 

Exercising this authority under 

section 4(d), we have developed a 

proposed rule that is designed to 

address the silverspot’s specific threats 

and conservation needs. 

Although the statute does not require 

us to make a ‘‘necessary and advisable’’ 

finding with respect to the adoption of 


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specific prohibitions under section 9, 

we find that this rule as a whole satisfies 

the requirement in section 4(d) of the 

Act to issue regulations deemed 

necessary and advisable to provide for 

the conservation of the silverspot. As 

discussed above under Summary of 

Biological Status and Threats, we have 

concluded that the silverspot is likely to 

become in danger of extinction within 

the foreseeable future primarily due to 

the projected effects of climate change, 

habitat loss and fragmentation, 

incompatible livestock grazing, humancaused hydrologic alteration, and 

genetic isolation. The provisions of this 

proposed 4(d) rule would promote 

conservation of the silverspot by 

encouraging management of the 

landscape in ways that meet both land 

management considerations and the 

conservation needs of the silverspot. 

The provisions of this proposed rule are 

one of many tools that we would use to 

promote the conservation of the 

silverspot. This proposed 4(d) rule 

would apply only if and when we make 

final the listing of the silverspot as a 

threatened species. 

Section 7(a)(2) of the Act requires 

Federal agencies, including the Service, 

to ensure that any action they fund, 

authorize, or carry out is not likely to 

jeopardize the continued existence of 

any endangered species or threatened 

species or result in the destruction or 

adverse modification of designated 

critical habitat of such species. In 

addition, section 7(a)(4) of the Act 

requires Federal agencies to confer with 

the Service on any agency action which 

is likely to jeopardize the continued 

existence of any species proposed to be 

listed under the Act or result in the 

destruction or adverse modification of 

proposed critical habitat. 

If a Federal action may affect a listed 

species or its critical habitat, the 

responsible Federal agency (action 

agency) must enter into consultation 

with us. Examples of actions that are 

subject to the section 7 consultation 

process are actions on State, Tribal, 

local, or private lands that require a 

Federal permit (such as a permit from 

the U.S. Army Corps of Engineers under 

section 404 of the Clean Water Act (33 

U.S.C. 1251 et seq.) or a permit from the 

Service under section 10 of the Act) or 

that involve some other Federal action 

(such as funding from the Federal 

Highway Administration, Federal 

Aviation Administration, or the Federal 

Emergency Management Agency). 

Federal actions not affecting listed 

species or critical habitat—and actions 

on State, Tribal, local, or private lands 

that are not federally funded, 

authorized, or carried out by a Federal 

agency—do not require section 7 

consultation. 

This obligation does not change in 

any way for a threatened species with a 

species-specific 4(d) rule. Actions that 

result in a determination by a Federal 

agency of ‘‘not likely to adversely 

affect’’ continue to require the Service’s 

written concurrence and actions that are 

‘‘likely to adversely affect’’ a species 

require formal consultation and the 

formulation of a biological opinion. 

Provisions of the Proposed 4(d) Rule 

This proposed 4(d) rule would 

provide for the conservation of the 

silverspot by prohibiting the following 

activities, with certain exceptions 

(discussed below): Importing or 

exporting; possession and other acts 

with unlawfully taken specimens; 

delivering, receiving, transporting, or 

shipping in interstate or foreign 

commerce in the course of commercial 

activity; and selling or offering for sale 

in interstate or foreign commerce. In 

addition, anyone taking, attempting to 

take, or otherwise possessing a 

silverspot, or parts thereof, in violation 

of section 9 of the Act would be subject 

to a penalty under section 11 of the Act, 

with certain exceptions (discussed 

below). 

Under the Act, ‘‘take’’ means to 

harass, harm, pursue, hunt, shoot, 

wound, kill, trap, capture, or collect, or 

to attempt to engage in any such 

conduct. Some of these provisions have 

been further defined in regulations at 50 

CFR 17.3. Take can result knowingly or 

otherwise, by direct and indirect 

impacts, intentionally or incidentally. 

Allowing incidental and intentional 

take in certain cases, such as for the 

purposes of scientific inquiry or 

monitoring, or to improve habitat 

availability and quality, would help 

preserve the silverspot’s remaining 

populations, slow their rate of decline, 

and decrease synergistic, negative 

effects from other stressors. 

We may issue permits to carry out 

otherwise prohibited activities, 

including those described above, 

involving threatened wildlife under 

certain circumstances. Regulations 

governing permits are codified at 50 

CFR 17.32. With regard to threatened 

wildlife, a permit may be issued for the 

following purposes: For scientific 

purposes, to enhance propagation or 

survival, for economic hardship, for 

zoological exhibition, for educational 

purposes, for incidental taking, or for 

special purposes consistent with the 

purposes of the Act. The statute also 

contains certain exemptions from the 

prohibitions, which are found in 

sections 9 and 10 of the Act. 

We recognize the special and unique 

relationship with our State natural 

resource agency partners in contributing 

to conservation of listed species. State 

agencies often possess scientific data 

and valuable expertise on the status and 

distribution of endangered, threatened, 

and candidate species of wildlife and 

plants. State agencies, because of their 

authorities and their close working 

relationships with local governments 

and landowners, are in a unique 

position to assist us in implementing all 

aspects of the Act. In this regard, section 

6 of the Act provides that we shall 

cooperate to the maximum extent 

practicable with the States in carrying 

out programs authorized by the Act. 

Therefore, any qualified employee or 

agent of a State conservation agency that 

is a party to a cooperative agreement 

with us in accordance with section 6(c) 

of the Act, who is designated by his or 

her agency for such purposes, would be 

able to conduct activities designed to 

conserve the silverspot that may result 

in otherwise prohibited take without 

additional authorization. 

As discussed above under Factors 

Influencing Subspecies Viability, 

incompatible livestock grazing, exotic 

plant invasion, prescribed burning, and 

use of pesticides affect the status of the 

silverspot both negatively and positively 

depending on how, when, and where 

they are done. Accordingly, this 

proposed 4(d) rule addresses activities 

to facilitate conservation and 

management of the silverspot where 

they currently occur and may occur in 

the future by excepting them from the 

Act’s take prohibition under certain 

specific conditions. These activities are 

intended to increase management 

flexibility and encourage support for the 

conservation and habitat improvement 

of the silverspot. Under this proposed 

4(d) rule, take would be prohibited, 

except for take incidental to an 

otherwise lawful activity caused by 

actions described in the exceptions to 

prohibitions in the proposed 4(d) rule 

for the purpose of silverspot 

conservation or recovery. 

The proposed forms of allowable take 

are explained in more detail below. For 

all proposed forms of allowable take, 

reasonable care would have to be 

practiced to minimize the impacts from 

the actions. Reasonable care means 

limiting the impacts to the silverspot 

and its host plant (bog violet) by 

complying with all applicable Federal, 

State, and Tribal regulations for the 

activity in question; using methods and 

techniques that result in the least harm, 

injury, or death, as feasible; undertaking 

activities at the least impactful times 

(e.g., conducting activities that might 


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impact habitat during the flight season) 

and locations, as feasible; ensuring the 

number of individuals affected does not 

impact the existing populations; 

ensuring no introduction of invasive 

plant species; and preserving the genetic 

diversity of populations. 

Under the proposed 4(d) rule, 

incidental take of a silverspot butterfly 

would not be a violation of section 9 of 

the Act if it occurs as a result of the 

following activities. All activities and 

statements below only apply to habitat 

areas of silverspot that include wet 

meadow areas where bog violet are 

growing and immediately adjacent areas 

with nectar sources. 

Livestock Grazing 

By excepting take of silverspot caused 

by grazing, we would acknowledge the 

positive role that some ranchers have 

already played in conserving the 

silverspot butterfly and the importance 

of preventing any additional loss and 

fragmentation of native grasslands and 

riparian habitat. Grazing may be an 

effective tool to improve silverspot 

habitat by opening up the habitat and 

reducing vegetation that competes with 

bog violet when carefully applied in 

cooperation and consultation with 

private landowners, public land 

managers, and grazing experts. 

Moderate vegetative utilization (40–55 

percent) in late fall to early spring 

(October 15 to May 31) would be 

excepted under this proposed 4(d) rule. 

Resting pastures that include silverspot 

habitat is preferred in summer through 

fall (June 1 to October 14), but light 

grazing (less than 30 percent utilization) 

during this time frame would also be 

excepted from take by reducing 

competition with the bog violet. 

Recovery of the silverspot will depend 

on the protection and restoration of 

high-quality habitats supporting the bog 

violet on private lands and on public 

lands that are grazed by private 

individuals under lease or other 

agreements. 

Annual Haying or Mowing 

Annual haying or mowing in early 

summer can be beneficial, or at least not 

detrimental, to silverspots by removing 

vegetation that competes with the bog 

violet. Therefore, we are proposing to 

except take from annual haying or 

mowing in silverspot habitat under the 

following conditions: Activities must 

occur in the early summer (June 30 or 

earlier), and blade height would need to 

be a minimum of 6 inches, with 8 

inches or higher preferred in areas with 

bog violet to avoid cutting the violet 

leaves. The timing of cutting also 

applies to surrounding drier areas 

important for nectaring, but blade height 

could be lower than 6 inches where the 

violet is not present. However, haying or 

mowing from July 1 through October 

would be detrimental due to removal of 

nectar sources and cover for all 

silverspot life stages, and therefore 

would not be excepted from the 

prohibitions in the proposed 4(d) rule in 

and adjacent to bog violet habitat. 

Prescribed Burning 

Spring burning can be beneficial to 

remove thatch that may reduce or 

prevent growth of the bog violet. 

Prescribed burning in the spring (March 

1 to April 30) has limited impact to 

silverspots and would be excepted from 

take. Fall burning (October 15 to 

December 15) would also be excepted if 

the silverspot butterfly has been shown 

to not be present in a given year through 

adequate monitoring (i.e., multiple 

surveys at times when butterflies are 

active). 

Brush Control 

Some woody vegetation interspersed 

in silverspot habitat or at the margins of 

habitat can be beneficial. However, if 

allowed to become too dense, woody 

vegetation can crowd out bog violets 

and nectar sources. Consequently, brush 

removal every 4 to 5 years would be 

excepted from take. Removal can be by 

mechanical means, burning, grazing, or 

herbicide application if in compliance 

with other excepted activities in the 

proposed 4(d) rule. If mechanical means 

such as a brush hog is used, the blade 

would need to be set to 8 inches or 

higher. If herbicides are used, an 

appropriate systemic herbicide to 

prevent regrowth would need to be 

applied to cut stems. Broadcast spraying 

in silverspot habitat would be 

prohibited because it may remove all 

nectar sources for the butterfly. 

Noxious Weed Control 

Although some noxious weeds like 

Canada thistle may provide nectar 

sources for silverspot, spot spraying, 

hand pulling, or mowing of noxious 

weeds would be excepted from take. 

High densities of noxious weeds can be 

detrimental to the bog violet and their 

control can benefit the silverspot. 

However, broadcast spraying in 

silverspot habitat would be prohibited 

because it may remove all nectar 

sources for the butterfly. 

Fence Maintenance 

Proposed excepted activities related 

to fence maintenance include 

replacement of poles and wire, and 

aboveground removal of woody 

vegetation along fence lines. Fences 

help manage where cattle can graze and 

reduce unwanted impacts to bog violet 

habitat. Removal of woody vegetation 

can prevent encroachment of vegetation 

into bog violet habitat and reduces 

competition with bog violet. If removal 

of woody vegetation is done by 

machine, such as a brush hog, the 

machine blade would need to be set 8 

inches or higher above ground to avoid 

or minimize damage to the butterfly’s 

host plant (bog violet). We recommend 

a systemic herbicide applied to the cut 

stems of woody vegetation. 

Maintenance of Other Structures 

Maintenance of other existing 

structures within and immediately 

adjacent to silverspot habitat would be 

excepted if activities are kept within the 

confines of already disturbed ground so 

as to not disturb the subspecies or its 

habitat. 

Nothing in this proposed 4(d) rule 

would change in any way the recovery 

planning provisions of section 4(f) of the 

Act, the consultation requirements 

under section 7 of the Act, or our ability 

to enter into partnerships for the 

management and protection of the 

silverspot. However, interagency 

cooperation may be further streamlined 

through planned programmatic 

consultations for the subspecies 

between us and other Federal agencies, 

where appropriate. We ask the public, 

particularly State agencies and other 

interested stakeholders that may be 

affected by the proposed 4(d) rule, to 

provide comments and suggestions 

regarding additional guidance and 

methods that the Service could provide 

or use, respectively, to streamline the 

implementation of this proposed 4(d) 

rule (see Information Requested, above). 

III. Critical Habitat 

Background 

Critical habitat is defined in section 3 

of the Act as: 

(1) The specific areas within the 

geographical area occupied by the 

species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features 

(a) Essential to the conservation of the 

species, and 

(b) Which may require special 

management considerations or 

protection; and 

(2) Specific areas outside the 

geographical area occupied by the 

species at the time it is listed, upon a 

determination that such areas are 

essential for the conservation of the 

species. 

Our regulations at 50 CFR 424.02 

define the geographical area occupied 


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by the species as an area that may 

generally be delineated around species’ 

occurrences, as determined by the 

Secretary (i.e., range). Such areas may 

include those areas used throughout all 

or part of the species’ life cycle, even if 

not used on a regular basis (e.g., 

migratory corridors, seasonal habitats, 

and habitats used periodically, but not 

solely by vagrant individuals). 

Additionally, our regulations at 50 CFR 

424.02 define the word ‘‘habitat,’’ for 

the purposes of designating critical 

habitat only, as the abiotic and biotic 

setting that currently or periodically 

contains the resources and conditions 

necessary to support one or more life 

processes of a species. 

Conservation, as defined under 

section 3 of the Act, means to use and 

the use of all methods and procedures 

that are necessary to bring an 

endangered or threatened species to the 

point at which the measures provided 

pursuant to the Act are no longer 

necessary. Such methods and 

procedures include, but are not limited 

to, all activities associated with 

scientific resources management such as 

research, census, law enforcement, 

habitat acquisition and maintenance, 

propagation, live trapping, and 

transplantation, and, in the 

extraordinary case where population 

pressures within a given ecosystem 

cannot be otherwise relieved, may 

include regulated taking. 

Critical habitat receives protection 

under section 7 of the Act through the 

requirement that Federal agencies 

ensure, in consultation with the Service, 

that any action they authorize, fund, or 

carry out is not likely to result in the 

destruction or adverse modification of 

critical habitat. The designation of 

critical habitat does not affect land 

ownership or establish a refuge, 

wilderness, reserve, preserve, or other 

conservation area. Designation also does 

not allow the government or public to 

access private lands. Such designation 

does not require implementation of 

restoration, recovery, or enhancement 

measures by non-Federal landowners. 

Where a landowner requests Federal 

agency funding or authorization for an 

action that may affect a listed species or 

critical habitat, the Federal agency 

would be required to consult with the 

Service under section 7(a)(2) of the Act. 

However, even if the Service were to 

conclude that the proposed activity 

would result in destruction or adverse 

modification of the critical habitat, the 

Federal action agency and the 

landowner are not required to abandon 

the proposed activity, or to restore or 

recover the species; instead, they must 

implement ‘‘reasonable and prudent 

alternatives’’ to avoid destruction or 

adverse modification of critical habitat. 

Under the first prong of the Act’s 

definition of critical habitat, areas 

within the geographical area occupied 

by the species at the time it was listed 

are included in a critical habitat 

designation if they contain physical or 

biological features (1) which are 

essential to the conservation of the 

species and (2) which may require 

special management considerations or 

protection. For these areas, critical 

habitat designations identify, to the 

extent known using the best scientific 

and commercial data available, those 

physical or biological features that are 

essential to the conservation of the 

species (such as space, food, cover, and 

protected habitat). In identifying those 

physical or biological features that occur 

in specific occupied areas, we focus on 

the specific features that are essential to 

support the life-history needs of the 

species, including, but not limited to, 

water characteristics, soil type, 

geological features, prey, vegetation, 

symbiotic species, or other features. A 

feature may be a single habitat 

characteristic or a more complex 

combination of habitat characteristics. 

Features may include habitat 

characteristics that support ephemeral 

or dynamic habitat conditions. Features 

may also be expressed in terms relating 

to principles of conservation biology, 

such as patch size, distribution 

distances, and connectivity. 

Under the second prong of the Act’s 

definition of critical habitat, we can 

designate critical habitat in areas 

outside the geographical area occupied 

by the species at the time it is listed, 

upon a determination that such areas 

are essential for the conservation of the 

species. The implementing regulations 

at 50 CFR 424.12(b)(2) further delineate 

unoccupied critical habitat by setting 

out three specific parameters: (1) When 

designating critical habitat, the 

Secretary will first evaluate areas 

occupied by the species; (2) the 

Secretary will consider unoccupied 

areas to be essential only where a 

critical habitat designation limited to 

geographical areas occupied by the 

species would be inadequate to ensure 

the conservation of the species; and (3) 

for an unoccupied area to be considered 

essential, the Secretary must determine 

that there is a reasonable certainty both 

that the area will contribute to the 

conservation of the species and that the 

area contains one or more of those 

physical or biological features essential 

to the conservation of the species. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific data available. 

Further, our Policy on Information 

Standards Under the Endangered 

Species Act (published in the Federal 

Register on July 1, 1994 (59 FR 34271)), 

the Information Quality Act (section 515 

of the Treasury and General 

Government Appropriations Act for 

Fiscal Year 2001 (Pub. L. 106–554; H.R. 

5658)), and our associated Information 

Quality Guidelines provide criteria, 

establish procedures, and provide 

guidance to ensure that our decisions 

are based on the best scientific data 

available. They require our biologists, to 

the extent consistent with the Act and 

with the use of the best scientific data 

available, to use primary and original 

sources of information as the basis for 

recommendations to designate critical 

habitat. 

Prudency Determination 

Section 4(a)(3) of the Act, as 

amended, and implementing regulations 

(50 CFR 424.12) require that, to the 

maximum extent prudent and 

determinable, the Secretary shall 

designate critical habitat at the time the 

species is determined to be an 

endangered or threatened species. Our 

regulations (50 CFR 424.12(a)(1)) state 

that the Secretary may, but is not 

required to, determine that a 

designation would not be prudent in the 

following circumstances: 

(i) The species is threatened by taking 

or other human activity and 

identification of critical habitat can be 

expected to increase the degree of such 

threat to the species; 

(ii) The present or threatened 

destruction, modification, or 

curtailment of a species’ habitat or range 

is not a threat to the species, or threats 

to the species’ habitat stem solely from 

causes that cannot be addressed through 

management actions resulting from 

consultations under section 7(a)(2) of 

the Act; 

(iii) Areas within the jurisdiction of 

the United States provide no more than 

negligible conservation value, if any, for 

a species occurring primarily outside 

the jurisdiction of the United States; 

(iv) No areas meet the definition of 

critical habitat; or 

(v) The Secretary otherwise 

determines that designation of critical 

habitat would not be prudent based on 

the best scientific data available. 

Designation of critical habitat requires 

the publication of maps and a narrative 

description of specific critical habitat 

areas in the Federal Register. The 

degree of detail in those maps and 

boundary descriptions is greater than 

the general location descriptions 

provided in this proposal to list the 

silverspot as a threatened species. We 


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26336 Federal Register / Vol. 87, No. 86 / Wednesday, May 4, 2022 / Proposed Rules 

are concerned that designation of 

critical habitat would more widely 

announce the exact locations of 

silverspots to collectors. We believe that 

the publication of maps and 

descriptions outlining the locations of 

the silverspot would further facilitate 

unauthorized collection and trade, as 

collectors would know the exact 

locations where silverspots occur. 

Although we do not have recent 

evidence of collection of the silverspot 

butterfly, we believe this is due to the 

public being largely unaware of where 

the silverspot butterfly occurs. Recent 

genetic studies reclassifying the 

multiple subspecies of nokomis may 

serve to increase interest in butterfly 

collection. In addition, collection of 

butterflies would be extremely difficult 

to detect, given the remote locations 

where the silverspot occurs. The 

silverspot has been collected in the past, 

and there is potential for collection 

pressure to increase if specific locations 

of populations were to become widely 

known (Ellis 2020e, pers. comm.; Scott 

2020, pers. comm.). Butterflies in 

general are highly sought after by 

collectors in the illegal animal trade 

(Speart 2012, entire). Some experts have 

expressed concern that small 

populations/colonies of this subspecies 

could be impacted by collection 

pressure if it were to increase after the 

subspecies is listed (Scott 2020, pers. 

comm.). Experts have noted that 

individuals from small populations 

should not be collected (Scott 2020, 

pers. comm.). Many of the extant 

populations of the silverspot are small 

and currently in low resiliency 

condition, and therefore could be easily 

extirpated if collection pressure 

increased. The silverspot’s annual life 

cycle also lends itself to increased 

negative population-level impacts if 

over-collection were to occur. We know 

of one example of a potential silverspot 

colony extirpation related to overcollection (combined with vegetation 

changes) (Scott 2020, pers. comm.). 

Many populations are on private land 

and locations of occupied colonies are 

currently not widely known. Therefore, 

publishing specific location information 

would provide a high level of assurance 

that any person going to a specific 

location would be able to successfully 

locate and collect silverspots given the 

subspecies’ site fidelity and ease of 

capture once located. Identification of 

locations of populations through 

publication of a critical habitat 

designation for the silverspot can be 

expected to increase the degree of 

collection threat to the subspecies. 

In conclusion, we find that the 

designation of critical habitat is not 

prudent for the silverspot, in accordance 

with 50 CFR 424.12(a)(1), because the 

silverspot faces a threat of unauthorized 

collection and trade, and designation 

can reasonably be expected to increase 

the degree of these threats to the 

subspecies. 

Required Determinations 

Clarity of the Rule 

We are required by Executive Orders 

12866 and 12988 and by the 

Presidential Memorandum of June 1, 

1998, to write all rules in plain 

language. This means that each rule we 

publish must: 

(1) Be logically organized; 

(2) Use the active voice to address 

readers directly; 

(3) Use clear language rather than 

jargon; 

(4) Be divided into short sections and 

sentences; and 

(5) Use lists and tables wherever 

possible. 

If you feel that we have not met these 

requirements, send us comments by one 

of the methods listed in ADDRESSES. To 

better help us revise the rule, your 

comments should be as specific as 

possible. For example, you should tell 

us the numbers of the sections or 

paragraphs that are unclearly written, 

which sections or sentences are too 

long, the sections where you feel lists or 

tables would be useful, etc. 

National Environmental Policy Act (42 

U.S.C. 4321 et seq.) 

We have determined that 

environmental assessments and 

environmental impact statements, as 

defined under the authority of the 

National Environmental Policy Act 

(NEPA; 42 U.S.C. 4321 et seq.), need not 

be prepared in connection with listing 

a species as an endangered or 

threatened species under the 

Endangered Species Act. We published 

a notice outlining our reasons for this 

determination in the Federal Register 

on October 25, 1983 (48 FR 49244). 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994 

(Government-to-Government Relations 

with Native American Tribal 

Governments; 59 FR 22951), Executive 

Order 13175 (Consultation and 

Coordination with Indian Tribal 

Governments), and the Department of 

the Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. In 

accordance with Secretarial Order 3206 

of June 5, 1997 (American Indian Tribal 

Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act), we readily acknowledge 

our responsibilities to work directly 

with Tribes in developing programs for 

healthy ecosystems, to acknowledge that 

Tribal lands are not subject to the same 

controls as Federal public lands, to 

remain sensitive to Indian culture, and 

to make information available to Tribes. 

Thirty-eight Tribes with cultural claims 

or affiliation to land or with lands 

currently in the range of the silverspot 

were contacted via letter to solicit input 

on the SSA. One Tribe responded and 

stated that they do not have scientific 

data but would like to be kept informed 

of findings of the SSA. We have 

determined that critical habitat is not 

prudent for the silverspot, so no Tribal 

lands (or other lands) will be included 

in a proposed critical habitat 

designation. 

References Cited 

A complete list of references cited in 

this rulemaking is available on the 

internet at https://www.regulations.gov 

and upon request from the Western 

Colorado Ecological Services Field 

Office (see FOR FURTHER INFORMATION

CONTACT). 

Authors 

The primary authors of this proposed 

rule are the staff members of the Fish 

and Wildlife Service’s Species 

Assessment Team and the Western 

Colorado Ecological Services Field 

Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Proposed Regulation Promulgation 

Accordingly, we propose to amend 

part 17, subchapter B of chapter I, title 

50 of the Code of Federal Regulations, 

as set forth below: 

PART 17—ENDANGERED AND 

THREATENED WILDLIFE AND PLANTS 

■ 1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 1531– 

1544; and 4201–4245, unless otherwise 

noted. 

■ 2. Amend § 17.11, in paragraph (h), by 

adding an entry for ‘‘Butterfly, 

silverspot’’ to the List of Endangered 

and Threatened Wildlife in alphabetical 

order under INSECTS to read as follows: 


khammond on DSKJM1Z7X2PROD with PROPOSALS
Federal Register / Vol. 87, No. 86 / Wednesday, May 4, 2022 / Proposed Rules 26337 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Common name Scientific name Where listed Status Listing citations and applicable rules 

*******

INSECTS

* * * * * * * 

Butterfly, silverspot .......... Speyeria nokomis 

nokomis.

Wherever found .............. T [Federal Register citation when published as a 

final rule]; 50 CFR 17.47(h).4d

* * * * * * * 

■ 3. As proposed to be amended at 85 

FR 1018 (January 8, 2020), 85 FR 64908 

(October 13, 2020), and 86 FR 32859 

(June 23, 2021), § 17.47 is further 

amended by adding a paragraph (h) to 

read as follows: 

§ 17.47 Special rules—insects. 

* * * * * 

(h) Silverspot butterfly (Speyeria 

nokomis nokomis). 

(1) Prohibitions. The following 

prohibitions that apply to endangered 

wildlife also apply to silverspot 

butterfly. Except as provided under 

paragraphs (h)(2) and (3) of this section 

and §§ 17.4 and 17.5, it is unlawful for 

any person subject to the jurisdiction of 

the United States to commit, to attempt 

to commit, to solicit another to commit, 

or cause to be committed, any of the 

following acts in regard to this species: 

(i) Import or export, as set forth at 

§ 17.21(b) for endangered wildlife. 

(ii) Take, as set forth at § 17.21(c)(1) 

for endangered wildlife. 

(iii) Possession and other acts with 

unlawfully taken specimens, as set forth 

at § 17.21(d)(1) for endangered wildlife. 

(iv) Interstate or foreign commerce in 

the course of a commercial activity, as 

set forth at § 17.21(e) for endangered 

wildlife. 

(v) Sale or offer for sale, as set forth 

at § 17.21(f) for endangered wildlife. 

(2) General exceptions from 

prohibitions. In regard to this species, 

you may: 

(i) Conduct activities as authorized by 

a permit under § 17.32. 

(ii) Take, as set forth at § 17.21(c)(2) 

through (c)(4) for endangered wildlife. 

(iii) Take as set forth at § 17.31(b). 

(iv) Possess and engage in other acts 

with unlawfully taken wildlife, as set 

forth at § 17.21(d)(2) for endangered 

wildlife. 

(3) Exceptions from prohibitions for 

specific types of incidental take. You 

may take silverspot butterfly without a 

permit in wet meadow areas where bog 

violets (Viola nephrophylla/V. sororia 

var. affinis) are growing and 

immediately adjacent areas with nectar 

sources while carrying out the legally 

conducted activities set forth in this 

paragraph (h)(3), as long as the 

activities: 

(i) Are conducted with reasonable 

care. For the purposes of this paragraph, 

‘‘reasonable care’’ means limiting the 

impacts to the silverspot and bog violet 

by complying with all applicable 

Federal, State, and Tribal regulations for 

the activity in question; using methods 

and techniques that result in the least 

harm, injury, or death, as feasible; 

undertaking activities at the least 

impactful times (e.g., conducting 

activities that might impact habitat 

during the flight season) and locations, 

as feasible; ensuring the number of 

individuals affected does not impact the 

existing populations; ensuring no 

introduction of invasive plant species; 

and preserving the genetic diversity of 

populations; 

(ii) Consist of one or more of the 

following: 

(A) Grazing: 

(1) Moderate grazing (40 to 55 percent 

vegetative utilization) in late fall to early 

spring (October 15 to May 31); or 

(2) Light grazing (less than 30 percent 

vegetative utilization) in summer 

through fall (June 1 to October 14). 

(B) Annual haying or mowing in 

silverspot habitat in the early summer 

(June 30 or earlier). Blade height must 

be a minimum of 6 inches, with 8 

inches or higher preferred in areas with 

bog violet. In surrounding drier areas, 

blade height may be lower than 6 inches 

where the violet is not present. 

(C) Prescribed burning: 

(1) In the spring (March 1 to April 30); 

or 

(2) In the fall (October 15 to December 

15), if the silverspot butterfly has been 

shown to not be present in a given year 

through adequate monitoring (i.e., 

multiple surveys at times when 

butterflies are active). 

(D) Brush removal every 4 to 5 years. 

Removal can be by mechanical means, 

burning, grazing, or herbicide 

application if in compliance with other 

excepted activities in this paragraph 

(h)(3). If mechanical means such as a 

brush hog is used, the blade must be set 

to 8 inches or higher. If herbicides are 

used, an appropriate systemic herbicide 

to prevent regrowth must be applied to 

cut stems, but broadcast spraying is 

prohibited. 

(E) Spot spraying, hand pulling, or 

mowing of noxious weeds. Broadcast 

spraying of noxious weeds is prohibited. 

(F) Replacement of fence poles and 

wire, and aboveground removal of 

woody vegetation along fence lines. If 

removal of woody vegetation is done by 

machine, such as a brush hog, the 

machine blade must be set 8 inches or 

higher. We recommend a systemic 

herbicide applied to the cut stems of 

woody vegetation. 

(G) Maintenance of other existing 

structures within and immediately 

adjacent to silverspot habitat if activities 

are kept within the confines of already 

disturbed ground. 

Martha Williams, 

Director, U.S. Fish and Wildlife Service. 

[FR Doc. 2022–09446 Filed 5–3–22; 8:45 am] 

BILLING CODE 4333–15–P 


khammond on DSKJM1Z7X2PROD with PROPOSALS