[Federal Register Volume 82, Number 189 (Monday, October 2, 2017)]
[Proposed Rules]
[Pages 45779-45793]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-21073]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R6-ES-2016-0013: FXES11130900000C6-178-FF09E30000]
RIN 1018-BB41


Endangered and Threatened Wildlife and Plants; Removing 
Astragalus desereticus (Deseret Milkvetch) From the Federal List of 
Endangered and Threatened Plants

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule and 12-month petition finding; request for 
comments.

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SUMMARY: The best available scientific and commercial data indicate 
that threats to Astragalus desereticus (Deseret milkvetch) identified 
at the time of listing in 1999 are not as significant as originally 
anticipated and are being adequately managed. Therefore, the species no 
longer meets the definition of an endangered or threatened species 
under the Endangered Species Act of 1973, as amended (Act). 
Consequently, we, the U.S. Fish and Wildlife Service (Service), propose 
to remove (delist) Astragalus desereticus from the Federal List of 
Endangered and Threatened Plants (List). This determination is based on 
a thorough review of all available information, which indicates that 
this species' population is much greater than was known at the time of 
listing in 1999 and that threats to this species have been sufficiently 
minimized. This document also serves as the 12-month finding on a 
petition to remove this species from the List. We are seeking 
information, data, and comments from the public on the proposed rule to 
remove the Astragalus desereticus from the List.

DATES: We will accept comments received or postmarked on or before 
December 1, 2017. 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 
public hearings, in writing, at the address shown in the FOR FURTHER 
INFORMATION CONTACT section by November 16, 2017.

ADDRESSES: You may submit written comments on the proposed rule and the 
draft post-delisting monitoring plan by one of the following methods:
    <bullet> Electronically: Go to the Federal eRulemaking Portal: 
http://www.regulations.gov. In the Search box, enter Docket No. FWS-R6-
ES-2016-0013, which is the docket number for this rulemaking. Then, 
click on the Search button. On the resulting page, in the Search panel 
on the left side of the screen, under the Document Type heading, click 
on the Proposed Rules link to locate this document. You may submit a 
comment by clicking on the blue ``Comment Now!'' box. If your comments 
will fit in the provided comment box, please use this feature of http://www.regulations.gov, as it is most compatible with our comment review 
procedures. If you attach your comments as a separate document, our 
preferred file format is Microsoft Word. If you attach multiple 
comments (such as form letters), our preferred formation is a 
spreadsheet in Microsoft Excel.
    <bullet> By hard copy: Submit by U.S. mail or hand-delivery to: 
Public Comments Processing, Attn: FWS-6-ES-2016-0013; U.S. Fish and 
Wildlife Service; MS: BPHC; 5275 Leesburg Pike, Falls Church, VA 22041-
3803.
    We request that you submit written comments only by the methods 
described above. We will post all

[[Page 45780]]

comments on http://www.regulations.gov. This generally means that we 
will post any personal information you provide us (see Public Comments, 
below for more details).
    Document availability: This proposed rule and supporting documents, 
including a copy of the draft post-delisting monitoring plan referenced 
throughout this document, are available on http://www.regulations.gov 
at Docket No. FWS-R6-ES-2016-0013. In addition, the supporting file for 
this proposed rule will be available for public inspection, by 
appointment, during normal business hours at the Utah Ecological 
Services Field Office; 2369 Orton Circle, Suite 50; West Valley City, 
Utah 84119, telephone: 801-975-3330. Persons who use a 
telecommunications device for the deaf (TDD) may call the Federal Relay 
Service at 800-877-8339.

FOR FURTHER INFORMATION CONTACT: Larry Crist, Field Supervisor, 
telephone: 801-975-3330. Direct all questions or requests for 
additional information to: DESERET MILKVETCH QUESTIONS, U.S. Fish and 
Wildlife Service; Utah Ecological Services Field Office; 2369 Orton 
Circle, Suite 50; West Valley City, Utah 84119. Individuals who are 
hearing-impaired or speech-impaired may call the Federal Relay Service 
at 800-877-8337 for TTY assistance.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act, if a species is 
determined no longer to be threatened or endangered throughout all or a 
significant portion of its range, we are required to promptly publish a 
proposal in the Federal Register and make a determination on our 
proposal within 1 year. Removing a species from the List can only be 
completed by issuing a rule.
    This document proposes delisting Astragalus desereticus. This 
proposed rule assesses the best available information regarding status 
of and threats to the species.
    The basis for our action. Under the Act, we can determine that a 
species is an endangered or threatened species based on any one or more 
of five factors or the cumulative effects thereof: (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 Astragalus 
desereticus no longer meets the definition of an endangered or 
threatened species under the Act.
    We will seek peer review. We will seek comments from independent 
specialists to ensure that our designation is based on scientifically 
sound data, assumptions, and analyses. We will invite these peer 
reviewers to comment on our listing proposal. Because we will consider 
all comments and information received during the comment period, our 
final determination may differ from this proposal.

Information Requested

Public Comments

    We want any final rule resulting from this proposal to be as 
accurate as possible. Therefore, we invite tribal and governmental 
agencies, the scientific community, industry, and other interested 
parties to submit comments or recommendations concerning any aspect of 
this proposed rule. Comments should be as specific as possible. We 
particularly seek comments concerning:
    (1) Reasons why we should or should not remove Astragalus 
desereticus from the List of Endangered and Threatened Plants (i.e., 
``delist'' the species) under the Act;
    (2) New biological or other relevant data concerning any threat (or 
lack thereof) to this species (for example, those associated with 
climate change);
    (3) New information on any efforts by the State or other entities 
to protect or otherwise conserve the species;
    (4) New information concerning the range, distribution, and 
population size or trends of this species;
    (5) New information on the current or planned activities in the 
habitat or range that may adversely affect or benefit the species; and
    (6) Information pertaining to the requirements for post-delisting 
monitoring of Astragalus desereticus.
    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, may not meet the standard of information required by 
section 4(b)(1)(A) of the Act (16 U.S.C. 1531 et seq.), which directs 
that determinations as to whether any species is an endangered or 
threatened species must be made ``solely on the basis of the best 
scientific and commercial data available.''
    To issue a final rule to implement this proposed action, we will 
take into consideration all comments and any additional information we 
receive. Such communications may lead to a final rule that differs from 
this proposal. All comments, including commenters' names and addresses, 
if provided to us, will become part of the supporting record.
    You may submit your comments and materials concerning the proposed 
rule by one of the methods listed in ADDRESSES. Comments must be 
submitted to http://www.regulations.gov before 11:59 p.m. (Eastern 
Time) on the date specified in DATES. We will not consider hand-
delivered comments that we do not receive, or mailed comments that are 
not postmarked, by the date specified in DATES.
    We will post your entire comment--including your personal 
identifying information--on http://www.regulations.gov. If you provide 
personal identifying information in your comment, 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.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours at the U.S. Fish and Wildlife 
Service, Utah Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

Public Hearing

    Section 4(b)(5)(E) of the Act provides for one or more public 
hearings on this proposed rule, if requested. We must receive requests 
for public hearings, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by the date shown in DATES. We will schedule public 
hearings on this proposal, if any are requested, and places of those 
hearings, as well as how to obtain reasonable accommodations, in the 
Federal Register at least 15 days before the first hearing.

Peer Review

    In accordance with our policy, ``Notice of Interagency Cooperative 
Policy for Peer Review in Endangered Species Act Activities,'' which 
was published on July 1, 1994 (59 FR 34270), we will seek the expert 
opinion of at least three appropriate and independent specialists 
regarding scientific data and interpretations contained in this 
proposed rule. We will send copies of this proposed rule to the peer 
reviewers immediately following publication in the Federal Register. We

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will ensure that the opinions of peer reviewers are objective and 
unbiased by following the guidelines set forth in the Director's Memo, 
which updates and clarifies Service policy on peer review (U.S. Fish 
and Wildlife Service 2016). The purpose of such review is to ensure 
that our decisions are based on scientifically sound data, assumptions, 
and analysis. Accordingly, our final decision may differ from this 
proposal.

Previous Federal Actions

    In 1975, the Smithsonian Institution prepared a report on plants 
considered to be endangered, threatened, or extinct. On July 1, 1975, 
we published a notice in the Federal Register accepting the Smithsonian 
report as a petition to list those taxa named, including Astragalus 
desereticus (40 FR 27823). On June 16, 1976, we published a proposed 
rule to designate approximately 1,700 vascular plants, including 
Astragalus desereticus, as endangered pursuant to section 4 of the Act 
(41 FR 24523). On December 10, 1979, we published a notice of 
withdrawal for species that had not had a final rule published, 
including Astragalus desereticus (44 FR 70796). On December 15, 1980, 
we published a revised notice of review for native plants designating 
Astragalus desereticus as a category 1 candidate species (taxa for 
which we had sufficient information to support preparation of listing 
proposals); Astragalus desereticus was also identified as a species 
that may have recently become extinct (45 FR 82480). In 1981, a 
population of Astragalus desereticus was re-discovered. On November 28, 
1983, we published a revised notice of review in which Astragalus 
desereticus was included as a category 2 candidate species for which 
additional information on distribution and abundance was needed (48 FR 
53640). That designation was maintained in two subsequent notices of 
review (50 FR 39526, September 27, 1985, and 55 FR 6184, February 21, 
1990). Following additional surveys, the species was reclassified as a 
category 1 candidate on September 30, 1993 (58 FR 51144). On February 
28, 1996, we ceased using category designations and included Astragalus 
desereticus as a candidate species (61 FR 7596). A final rule listing 
Astragalus desereticus as threatened published in the Federal Register 
on October 20, 1999 (64 FR 56590); the rule was effective November 19, 
1999. The final listing rule included a determination that the 
designation of critical habitat for Astragalus desereticus was not 
prudent.
    On July 5, 2005, the Center for Native Ecosystems, Forest 
Guardians, and the Utah Native Plant Society filed a complaint in the 
U.S. District Court for the District of Columbia challenging our 
October 20, 1999, determination that designating critical habitat was 
not prudent due to the lack of benefit to Astragalus desereticus 
(Center for Native Ecosystems, Forest Guardians, and Utah Native Plant 
Society v. Gale Norton (05-CV-01336-RCL)). In response to a stipulated 
settlement agreement, on January 25, 2007, we published an advanced 
notice of proposed rulemaking stating that designating critical habitat 
would not be beneficial to the species and recommending removal of the 
species from the List of Endangered and Threatened Plants because 
threats to the species identified in the final listing rule were not as 
significant as earlier believed and were managed such that the species 
was not likely to become in danger of extinction throughout all or a 
significant portion of its range in the foreseeable future (72 FR 
3379).
    In 2011, we completed a 5-year review of the species to evaluate 
its status and determined that threats to the species either were not 
as significant as we had anticipated or had failed to develop; 
consequently, we recommended delisting (U.S. Fish and Wildlife Service 
2011, entire). On October 6, 2015, we received a petition (Western Area 
Power Administration 2015) to delist the species based on our 2007 
recommendation to remove the species from the List of Endangered and 
Threatened Plants and supported by additional surveys and by 
recommendations to delist in our 2011 5-year review for the species (72 
FR 3379, January 25, 2007; U.S. Fish and Wildlife Service 2011, p. 22). 
On March 16, 2016, we published a notice of petition findings and 
initiation of status reviews for 29 species, including Astragalus 
desereticus, which found that the petition presented substantial 
information indicating that delisting may be warranted (81 FR 14058). 
This proposed rule presents our conclusions from a status review of the 
species and serves as the 12-month finding on the petition to delist 
the species.

Species Description and Habitat Information

    Astragalus desereticus was first collected in 1893, again in 1909, 
then not located again until 1981 (Barneby 1989, p. 126; Franklin 1990, 
p. 2). The gap in collections may be due to confusion regarding initial 
records, which were wrongly attributed to Sanpete County, Utah 
(Franklin 1990, p. 2). The 1964 description and classification of 
Astragalus desereticus by Barneby is the accepted taxonomic status 
(Barneby 1989, p. 126; ITIS 2015).
    Astragalus desereticus is a perennial, herbaceous plant in the 
legume family with silvery-gray pubescent leaves that are 2-5 inches 
(in) (4-12 centimeters (cm)) long and flower petals that are white to 
pinkish with lilac-colored tips (Barneby 1989, p. 126). The flower 
structure indicates an adaptation to pollination primarily by large 
bees, likely bumblebees (Bombus spp.), which are generalist pollinators 
(Stone 1992, p. 4). The species appears to be tolerant of drought 
(Stone 1992, p. 3). A more detailed description of the biology and life 
history of Astragalus desereticus can be found in our 5-year review of 
the species (U.S. Fish and Wildlife Service 2011, pp. 5-7).
    Astragalus desereticus is endemic to Utah County in central Utah, 
with the only known population near the town of Birdseye (Stone 1992, 
p. 2). It occurs exclusively on sandy-gravelly soils weathered from the 
Moroni geological formation, which is limited to an area of 
approximately 100 square miles (mi\2\) (259 square kilometers (km\2\)) 
(Franklin 1990, p. 4; Stone 1992, p. 3). The species is known to occur 
at elevations of 5,400-5,700 feet (ft) (1,646-1,737 meters (m)) (Stone 
1992, p. 2; Anderson 2016, pers. comm.; Fitts 2016, pers. comm.). Based 
upon the species' narrow habitat requirements it has likely always been 
rare, with minimal additional potential habitat (Franklin 1990, p. 6; 
Stone 1992, p. 6).
    Astragalus desereticus is typically is found on steep south- and 
west-facing slopes with scattered Colorado pinyon pine (Pinus edulis) 
and Utah juniper (Juniperus osteosperma) (Franklin 1990, p. 2). It also 
can grow well on west-facing road-cuts where plants are typically 
larger than those found in undisturbed habitat (Franklin 1990, p. 2). 
The species' habitat is typically sparsely vegetated (SWCA 
Environmental Consultants 2015, p. 7). The species is an apparent 
associate of the pinyon-juniper plant community; it is not shade-
tolerant, but is found in open areas between trees where the geologic 
substrate is most likely the habitat feature to which these plants 
respond (Goodrich et al. 1999, p. 265).
    Astragalus desereticus is probably a relatively new species on the 
scale of geologic time that has always occurred in a restricted habitat 
(a localized neoendemic) based on the ability of the genus to colonize 
disturbed or unstable habitats in dry climates. This ability has likely 
hastened evolution of the genus and given rise to many species of 
Astragalus that are sharply differentiated and geographically

[[Page 45782]]

restricted (Stone 1992, p. 6). Astragalus desereticus appears to 
tolerate at least some disturbance, such as that caused by road 
maintenance activities (Franklin 1990, p. 2; Fitts and Fitts 2009, p. 
5).

Species Abundance, Distribution, and Trends

    In 1990, surveys for Astragalus desereticus estimated fewer than 
5,000 plants in a single population (Franklin 1990, p. 3). A subsequent 
visit to the same site in 1992 estimated more than 10,000 plants, 
indicating that a large seed bank likely exists (Stone 1992, p. 7). 
Consequently, at the time of listing we estimated a total population of 
5,000-10,000 plants (64 FR 56591, October 20, 1999).
    A combination of survey and census was conducted by the Utah 
Natural Heritage Program in 2008 to visit unsurveyed, suitable habitat 
and to provide a total population estimate for the species (Fitts 2008, 
p. 1). The surveyors found new plant sites (hereafter referred to as a 
colony) to the north and west of the previously known population. Due 
to higher plant numbers than expected, only small colonies and one 
large colony were censused; plant numbers at the remaining large 
colonies were estimated based on a partial census of 20 percent of the 
site. The total population estimate was 152,229 plants--including 
seedlings, juveniles, and adults (Fitts and Fitts 2009, p. 4). It was 
also noted that the number of plants counted in the original area 
surveyed in 1990 was greater in 2008 than numbers counted previously 
(Fitts and Fitts 2009, p. 4). In 2009, surveys were expanded and the 
updated total population estimate was 197,277-211,915 juvenile and 
adult plants (Fitts and Fitts 2010, p. 6). More plants likely occurred 
on private land with exposed Moroni Formation outcrops, but the land 
owner did not give permission to survey (Fitts and Fitts 2010, p. 7). 
These surveys may have overestimated the species' population using the 
partial census method due to extrapolation from earlier hand-drawn 
colony boundaries; the small number of transects; and the inclusion of 
seedlings, which have a high rate of mortality (U.S. Fish and Wildlife 
Service 2011, p. 10). If only adults were counted, the population 
estimate was 86,775-98,818 plants (U.S. Fish and Wildlife Service 2011, 
p. 10). In 2016, surveys were conducted; those data are still being 
analyzed. However, we expect to have the 2016 survey results included 
in the final delisting determination.
    At the time of listing, we estimated the occupied habitat of 
Astragalus desereticus to include approximately 300 acres (ac) (122 
hectares (ha)) in an area 1.6 mi (2.6 km) x 0.3 mi (0.5 km) (64 FR 
56591, October 20, 1999). The most recent occupied habitat estimate is 
approximately 345 ac (140 ha) in an area 2.8 mi (4.5 km) x 0.3 mi (0.5 
km) (Fitts and Fitts 2010, p. 6; SWCA Environmental Consultants 2015, 
p. 2). The species remains known from one population (Birdseye) of 
scattered colonies on the Moroni formation soils near Birdseye, Utah 
(U.S. Fish and Wildlife Service 2011, p. 8).
    The limited number of surveys and censuses completed for Astragalus 
desereticus, as well as differences in the size of area investigated, 
prevent a detailed assessment of population trends. However, the 
available information indicates a larger population since at least 1990 
when the first surveys were conducted.

Land Ownership

    An estimated 230 ac (93 ha) (67 percent) of the 345 ac (140 ha) of 
total habitat for Astragalus desereticus are in the Birdseye Unit of 
the Northwest Manti Wildlife Management Area owned by the Utah Division 
of Wildlife Resources (UDWR); the Utah Division of Transportation 
(UDOT) owns 25 ac (10 ha) (7 percent); and 90 ac (36 ha) (26 percent) 
are privately owned (UDWR et al. 2006, p. 4). Utah School and 
Institutional Trust Lands Administration (SITLA) owns most of the 
mineral rights in the species' habitat (UDWR et al. 2006, p. 7). 
Surveys in 1990 and 2016 did not locate the species on Federal lands 
(Franklin 1990, pp. 3-4; Anderson 2016, pers. comm.).

Conservation Efforts

    A recovery plan for Astragalus desereticus was not prepared; 
therefore, specific delisting criteria were not developed for the 
species. However, in 2005, we invited agencies with management or 
ownership authorities within the species' habitat to serve on a team to 
develop an interagency conservation agreement for Astragalus 
desereticus intended to facilitate a coordinated conservation effort 
between the agencies (UDWR et al. 2006, entire). The Conservation 
Agreement for Deseret milkvetch (Astragalus desereticus) (Conservation 
Agreement) was signed and approved by UDWR, UDOT, SITLA, and the 
Service in 2006 and will remain in effect for 30 years. The 
Conservation Agreement provides guidance to stakeholders to address 
threats and establish goals to ensure long-term survival of the species 
(UDWR et al. 2006, p. 7). Conservation actions contained in the 
Conservation Agreement (in italics), efforts to accomplish these 
actions, and their current status are described below.
    <bullet> Maintain species' habitat within the Wildlife Management 
Area in its natural state, restricting habitat disturbance: This action 
is successful and ongoing. UDWR acquired the Birdseye Unit of the 
Northwest Manti Wildlife Management Area in 1967; prior to this 
acquisition, livestock grazing occurred for more than 50 years in the 
vicinity (UDWR et al. 2006, p. 6). Since acquisition, livestock grazing 
has been used on a limited basis as a management tool by UDWR; however, 
Astragalus desereticus occupied habitat is not suitable for grazing, 
and impacts to the species have been negligible (UDWR et al. 2006, p. 
7). This habitat has not been grazed by livestock since 2002 (U.S. Fish 
and Wildlife 2011, p. 17). Future grazing within occupied habitat is 
unlikely due to the steep terrain (Howard 2016, pers. comm.). A draft 
wildlife management plan completed by UDWR proposes closing some 
unauthorized unpaved roads within the Wildlife Management Area, which 
likely would further benefit the species by reducing habitat 
fragmentation (as plants reestablish themselves) and reducing future 
access to the population (Howard 2016, pers. comm.). We anticipate that 
the plan will be finalized within the next year (Howard 2017 pers. 
comm.). Because this plan is currently only in draft, we do not rely on 
it in this proposal to delist the species. However, it provides an 
indication of future management intentions of UDWR. Removal of juniper 
may occur as a habitat improvement for grazing, but not within habitat 
occupied by the species to avoid plant damage and mortality associated 
with this surface-disturbing activity (Howard 2016, pers. comm.). The 
steep terrain associated with Astragalus desereticus habitat makes 
grazing, juniper removal, and other land-disturbing activities 
associated with livestock grazing unlikely.
    <bullet> Retain species' habitat within the Wildlife Management 
Area under management of UDWR: This action is successful and ongoing. 
The UDWR continues to manage species' habitat within the Wildlife 
Management Area in its natural state, with minimal disturbance, as 
stipulated in the Conservation Agreement (Howard 2016, pers. comm.).
    <bullet> Evaluate feasibility of acquiring conservation easements 
or fee title purchases on small private land parcels between U.S. 
Highway 89 and the existing Wildlife Management Area as resources and 
willing sellers become available: No easements or property

[[Page 45783]]

have been acquired, and we do not rely on this conservation action in 
our proposal to delist the species. However, UDWR has a statewide 
initiative to acquire additional lands, so future acquisition may be 
possible (Howard 2016, pers. comm.).
    <bullet> Avoid using herbicides in species' habitat managed by 
UDOT: This action is successful and ongoing. The UDOT does not use 
herbicides in species' habitat within highway rights-of-way, and has 
committed to continuing this action as stipulated in the Conservation 
Agreement (Kisen 2016, pers. comm.).
    <bullet> Avoid disturbing plants during highway maintenance and 
construction carried out by UDOT: This action is successful and 
ongoing. The UDOT has not disturbed the species during highway 
maintenance and construction, and no highway widening projects are 
anticipated through at least 2040, which is as far as their planning 
extends (Kisen 2016, pers. comm.).
    <bullet> Service will monitor populations on an annual basis as 
needed: This action is successful and ongoing. Surveys were conducted 
in May 2016 by Utah Natural Heritage Program personnel, and they are 
currently analyzing the data.
    <bullet> UDWR and the Service will continue discussions on the 
development and review of management plans and habitat restoration that 
may affect species' habitat on the Wildlife Management Area: This 
action is successful and ongoing. The Service's Utah Field Office is 
actively engaged with UDWR in the development and review of actions 
that may affect the species, and meets periodically to implement the 
protections identified in the Conservation Agreement.
    In summary, most of the conservation actions described in the 
Conservation Agreement have been successfully achieved and are part of 
an ongoing management strategy for conserving Astragalus desereticus. 
Potential threats from residential development, livestock grazing, and 
highway maintenance and widening are addressed by conservation actions 
on approximately 74 percent of all occupied habitat owned and managed 
by either UDWR or UDOT. Conservation measures initiated under the 
Conservation Agreement will continue through at least 2036.
    As described above, we have new information for Astragalus 
desereticus since our listing decision and the species' status has 
improved. This improvement is likely due to expanded surveys as well as 
the amelioration of threats and an improved understanding of the 
stressors affecting the species (see five-factor discussion in the 
following section). In addition to the conservation actions identified 
in the Conservation Agreement, new opportunities for conservation of 
the species may be used in the future. For example, a new power line 
proposed near the species' habitat will use the same corridor as an 
existing transmission line (see Factor A).
    Survey results from 2009 (the most recent estimate), determined 
that the total population estimate was 197,277-211,915 juvenile and 
adult plants occurring on approximately 345 ac (140 ha) of habitat, 
which is a significant increase compared to estimates of 5,000-10,000 
plants occurring on approximately 300 ac (122 ha) at the time of 
listing. We anticipate that the 2016 survey results will confirm that 
the population remains stable. The majority of the species' occupied 
habitat (74 percent) is managed by UDWR and UDOT, and we have no 
information that indicates the species faces significant threats on 
private lands. Active participation on conservation actions specified 
in the Conservation Agreement has fluctuated due to funding and 
staffing since it was established in 2006 (U.S. Fish and Wildlife 
Service 2011, p. 4). However, all of the associated conservation 
actions for UDWR and UDOT managed habitat have been successfully 
implemented, with the exception of acquiring conservation easements. 
Additionally, as described below, threats identified at the time of 
listing in 1999 are not as significant as originally anticipated (U.S. 
Fish and Wildlife Service 2011, p. 21).

Summary of Factors Affecting the Species

    Section 4 of the Act and its implementing regulations (50 CFR part 
424) set forth the procedures for listing species, reclassifying 
species, or removing species from listed status. ``Species'' is defined 
by the Act as including any species or subspecies of fish or wildlife 
or plants, and any distinct vertebrate population segment of fish or 
wildlife that interbreeds when mature (16 U.S.C. 1532(16)). A species 
may be determined to be an endangered or threatened species due to one 
or more of the five factors described in section 4(a)(1) of the Act: 
(A) The present or threatened destruction, modification, or curtailment 
of its habitat or range; (B) overutilization for commercial, 
recreational, scientific, or educational purposes; (C) disease or 
predation; (D) the inadequacy of existing regulatory mechanisms; or (E) 
other natural or manmade factors affecting its continued existence. We 
must consider these same five factors in delisting a species. For 
species that are already listed as endangered or threatened, this 
analysis of threats is an evaluation of both the threats currently 
facing the species and the threats that are reasonably likely to affect 
the species in the foreseeable future following the removal of the 
Act's protections. We may delist a species according to 50 CFR 
424.11(d) if the best available scientific and commercial data indicate 
that the species is neither endangered nor threatened for the following 
reasons: (1) The species is extinct; (2) the species has recovered and 
is no longer endangered or threatened; and/or (3) the original 
scientific data used at the time the species was classified were in 
error.
    Astragalus desereticus is currently listed as threatened. Section 
3(20) of the Act defines a ``threatened species'' as ``any species 
which is likely to become an endangered species within the foreseeable 
future throughout all or a significant portion of its range'' (16 
U.S.C. 1532). We consider ``foreseeable future'' as that period of time 
within which a reliable prediction can be reasonably relied upon in 
making a determination about the future conservation status of a 
species, as described in the Solicitor's opinion dated January 16, 
2009. We consider 20 years to be a reasonable period of time within 
which reliable predictions can be made for the species. This time 
period includes multiple generations of the species, coincides with the 
duration of the Conservation Agreement, and falls within the planning 
period used by UDOT. We consider 20 years a conservative timeframe in 
view of the much longer term protections in place for 67 percent of the 
species' occupied habitat occurring within the UDWR Wildlife Management 
Area.
    A recovered species has had threats removed or reduced to the point 
that it no longer meets the Act's definition of threatened or 
endangered. A species is an ``endangered species'' for purposes of the 
Act if it is in danger of extinction throughout all or a significant 
portion of its range and is a ``threatened species'' if it is likely to 
become endangered within the foreseeable future throughout all or a 
significant portion of its range. For the purposes of this analysis, we 
will evaluate whether or not the currently listed species, Astragalus 
desereticus, should continue to be listed as a threatened species, 
based on the best scientific and commercial information available.
    In considering what factors might constitute threats, we must look 
beyond the exposure of the species to a particular factor to evaluate 
whether the species may respond to the factor in a way that causes 
actual impacts to the

[[Page 45784]]

species. If there is exposure to a factor and the species responds 
negatively, the factor may be a threat, and during the five-factor 
threats analysis, we attempt to determine how significant a threat it 
is. The threat is significant if it drives or contributes to the risk 
of extinction of the species such that the species warrants listing as 
endangered or threatened as those terms are defined by the Act. 
However, the identification of factors that could affect a species 
negatively may not be sufficient to justify a finding that the species 
warrants listing. The information must include evidence sufficient to 
suggest that the potential threat is likely to materialize and that it 
has the capacity (sufficient magnitude and extent) to affect the 
species' status such that it meets the definition of endangered or 
threatened under the Act. This determination does not necessarily 
require empirical proof of a threat. The combination of exposure and 
some corroborating evidence of how the species is likely impacted could 
suffice. The mere identification of factors that could impact a species 
negatively is not sufficient to compel a finding that listing is 
appropriate; we require evidence that these factors are operative 
threats that act on the species to the point that the species meets the 
definition of an endangered species or threatened species under the 
Act. The following analysis examines the five factors currently 
affecting Astragalus desereticus, or that are likely to affect it 
within the foreseeable future.

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range

    Factor A requires the Service to consider present or threatened 
destruction, modification, or curtailment of Astragalus desereticus 
habitat or range. The species is found in three different land use 
zones, as categorized by Utah County Land Use Ordinance (Jorgensen 
2016b, pers. comm.; Utah County 2016, Chapter 5). Approximately 74.6 
percent of the species' habitat occurs in Critical Environment Zone 1, 
which has the primary purpose of supporting water resources for 
culinary use, irrigation, recreation, natural vegetation, and wildlife. 
Approximately 16.7 percent occurs in Residential Agricultural Zone 5, 
which has the primary purpose of preserving agricultural lands. The 
remaining 8.6 percent occurs in Critical Environment Zone 2, which has 
the primary purpose of preserving fragile environmental uses (Jorgensen 
2016b, pers. comm.). These zones do not strictly regulate management 
and land use and, therefore, are not discussed under Factor D; however, 
the Ordinance prioritizes uses and provides management guidance for all 
lands in Utah County, unless specifically exempted (Utah County 2016, 
Chapter 5). All of the conservation actions in place for the species 
meet the guidelines under their respective land use zone, and we are 
not aware of any occupied habitat specifically exempted from the 
guidance described for the aforementioned land use zones.
    The following potential stressors were identified for this species 
at the time of listing: (1) Residential development, (2) highway 
maintenance and widening, and (3) livestock grazing and trampling. 
During the current status review we also considered: (4) mineral 
development, (5) transmission lines, and (6) climate change. Each of 
these stressors are assessed below.
Residential Development
    In our final rule listing Astragalus desereticus, substantial human 
population growth and urban expansion were predicted in the Provo, 
Spanish Fork, and Weber River drainages east of the Wasatch Mountains. 
Increased residential development was considered a threat to the 
species due to the potential for loss of plants and habitat that 
results from construction of roads, buildings, and associated 
infrastructure (e.g., utilities) (64 FR 56591, October 20, 1999). 
However, counter to the predictions of the Quality Growth Efficiency 
Tools Technical Committee cited in our final listing rule, residential 
development in these areas has been very limited since listing. Despite 
the recent construction of a house and a barn adjacent to Astragalus 
desereticus occupied habitat (Fitts 2016, pers. comm.), all other 
nearby development that has already occurred or is planned for the 
future is located several miles from the species' habitat as described 
in the following paragraph.
    The nearest community, Birdseye, is unincorporated and has not been 
included in recent U.S. Census Bureau surveys; therefore, no recent 
population estimates are available. We are aware of only three proposed 
development properties in this area. One property has potential for 95 
lots and is 2.8 mi (4.5 km) from known occupied habitat. The other two 
developments would be single dwelling properties approximately 4 mi (6 
km) and 5 mi (8 km) from known occupied habitat (Larsen 2016, pers. 
comm.; Jorgensen 2016a, pers. comm.). These three proposed developments 
are located near Thistle Creek, upstream from Astragalus desereticus 
habitat (Jorgensen 2016a, pers. comm.). However, the species' habitat 
occurs on steep upland slopes that are not vulnerable to potential 
impacts from changes in downstream flows. Residential development at 
this scale and distance from Astragalus desereticus population is not 
likely to impact the species or its habitat now or within the 
foreseeable future.
    The majority of Astragalus desereticus habitat occurs on steep, 
rocky, erosive slopes that are not favorable for development; 
consequently, we do not anticipate any future residential development 
in the species' occupied habitat (Fitts 2016, pers. comm.). 
Additionally, as previously noted, approximately 230 ac (93 ha)--67 
percent of total habitat for the species--are in a Wildlife Management 
Area owned by the UDWR that is protected from residential development 
as described under Factor D.
    We conclude, based on the available information, that residential 
development is not a threat to Astragalus desereticus currently or 
within the foreseeable future due to: (1) The minimal disturbance from 
residential development that has occurred on the species' habitat to 
date and is anticipated to be minimal in the future; (2) the steep, 
rocky, erosive nature of the species' habitat, which precludes most 
development; and (3) the amount of habitat (67 percent) that is 
protected from residential development.
Highway Widening and Maintenance
    In our final rule listing Astragalus desereticus, potential 
widening of Highway 89 was considered a threat to plants growing in the 
highway right-of-way (64 FR 56592, October 20, 1999). Highway widening 
would result in the loss of plants and habitat directly adjacent to 
Highway 89. Regular highway maintenance activities include herbicide 
use to control weeds that could result in the loss of plants within the 
right-of-way and adjacent habitat. Additionally, road improvement 
projects may generate dust that can affect nearby plants. However, 
widening of Highway 89 has not occurred and is not anticipated by UDOT 
through at least 2040, which is as far as planning extends (Kisen 2016, 
pers. comm.).
    The nearest highway development project is a modification of the 
intersection of Highway 89 and Highway 6 planned for 2017 (Kisen 2016, 
pers. comm.). This project will take place approximately 7 mi (11 km) 
north of Birdseye and 4 mi (6 km) north of the nearest occurrence of 
the species. Therefore, we do not anticipate any direct or indirect 
impacts to the species.

[[Page 45785]]

No other projects are currently planned within 20 mi (32 km) of 
Birdseye (Kisen 2016, pers. comm.).
    Road maintenance is ongoing; however, as committed to in the 
Conservation Agreement, UDOT avoids herbicide use and other disturbance 
in the species' habitat (Lewinsohn 2016, pers. comm.; UDWR et al. 2006, 
p. 9). In instances where herbicides must be used, UDOT will not apply 
by aerial application within 500 ft (152.5 m) of occupied habitat and 
will maintain a 100-ft (30-m) buffer for hand application of herbicides 
around individual plants (UDWR et al. 2006, p. 9). The species appears 
to tolerate some levels of disturbance related to road maintenance 
because it recolonizes areas that have been disturbed by tracked 
vehicles, road grading equipment, and road cuts (Franklin 1990, p. 2; 
Fitts and Fitts 2009, p. 5; SWCA 2015, p. 7).
    In summary, highway widening and maintenance can destroy habitat 
and fragment populations, but based upon information provided by UDOT, 
impacts from these activities are not projected to occur across the 
range of Astragalus desereticus within the foreseeable future. We are 
not aware of planned road-widening construction projects in or near the 
species' habitat, and UDOT has committed to avoiding herbicide use and 
other disturbance in occupied Astragalus desereticus habitat during 
maintenance activities (Lewinsohn 2016, pers. comm.; UDWR et al. p. 9). 
Therefore, based on the available information, we conclude that highway 
widening and maintenance is not a threat to Astragalus desereticus 
currently or within the foreseeable future.
Livestock Grazing and Trampling
    In our final rule listing Astragalus desereticus, livestock grazing 
and trampling were considered threats to the species because of direct 
consumption of plants, trampling of plants and the burrows of ground-
dwelling pollinators, and soil erosion (64 FR 56591, October 20, 1999). 
In contrast to many species of Astragalus, this species apparently is 
not toxic to livestock, and is palatable and may be consumed (Stone 
1992, p. 6; Tilley et al. 2010, p. 1).
    Prior to UDWR acquiring the Northwest Manti Wildlife Management 
Area in 1967, livestock grazing occurred for more than 50 years on 
habitat occupied by Astragalus desereticus, and may explain why 
attempts to locate the species were unsuccessful for decades (UDWR et 
al. 2006, p. 6). Once UDWR acquired the land, they chained (removed 
scrub growth) and seeded level land upslope of the species' habitat to 
improve grazing for wild ungulates and livestock; impacts from grazing 
in the form of trails and trampling were noted at the southern end of 
Astragalus desereticus habitat (Franklin 1990, p. 4, U.S. Fish and 
Wildlife 2011, p. 16). However, cattle tended to concentrate upslope of 
the species' habitat in the chained and seeded area where forage 
production was higher, and by 1992, there were no signs of recent 
grazing in the species' habitat (Stone 1992, p. 8). The last cattle 
grazing on the Wildlife Management Unit occurred in 2002 (U.S. Fish and 
Wildlife 2011, p. 17).
    The UDWR does not currently allow livestock grazing on the Birdseye 
Unit of the Wildlife Management Area, and does not plan for any future 
grazing within the portion of the Wildlife Management Area that 
contains Astragalus desereticus habitat (Howard 2016, pers. comm.). 
Avoidance of livestock grazing in species' habitat that is managed by 
UDWR is stipulated in the Conservation Agreement (UDWR et al. 2006, p. 
8). Additionally, the species' habitat is not well-suited to grazing 
due to sparse forage and steep slopes. Some private lands where the 
species occurs allow livestock grazing; however, when last visited, 
there was no evidence of impacts to the species (U.S. Fish and Wildlife 
2011, p. 17).
    In summary, livestock grazing and trampling were considered a 
threat to Astragalus desereticus in our final listing rule because 
grazing occurred historically over much of the species' habitat and we 
were concerned about trampling and erosion impacts to the species from 
livestock use, especially in light of the small population size known 
at the time. However, changes in land ownership and management due to 
establishment of the Birdseye Unit of the Northwest Manti Wildlife 
Management Area reduced the level of livestock use within 67 percent of 
the species habitat managed now by UDWR. Permitted cattle grazing on 
the Wildlife Management Area ceased in 2002, and UDWR remains committed 
to avoiding impacts within the species' habitat (Howard 2016, pers. 
comm.). Additionally, occupied habitat on both private and protected 
lands is steep and rocky, with sparse forage. Consequently, minimal 
grazing impacts have been documented. We conclude, based on the 
available information, that livestock grazing and trampling are not a 
threat to Astragalus desereticus currently or within the foreseeable 
future.
Mineral Development
    Impacts from mineral development were not considered in the final 
rule to list Astragalus desereticus (64 FR 56590, October 20, 1999). At 
the time the Conservation Agreement was signed there was no information 
indicating that mineral development was going to occur (UDWR et al. 
2006, p. 7). SITLA owns the mineral rights on most of the land occupied 
by Astragalus desereticus, and the agency has not had any inquiries 
regarding mineral development in the species' habitat since the 
Conservation Agreement was signed (UDWR et al. 2006, p. 7; Wallace 
2016, pers. comm.). In the Conservation Agreement, which will remain in 
effect through 2036, SITLA agreed to alert any energy and mineral 
developers to the presence of occupied habitat and recommend surface 
use stipulations that avoid disturbance and provide mitigation for 
unavoidable effects to plants or their habitat (UDWR et al. 2006, p. 
8). However, there is a low potential for mineral development in the 
area; consequently, no future development is anticipated (Wallace 2017, 
pers. comm.).
    In summary, developers have not expressed any interest in mineral 
development within the range of Astragalus desereticus. Additionally, 
there is a low potential for mineral development in the area; 
consequently, no future development is anticipated (Wallace 2017, pers. 
comm.). Therefore, based on the available information, we conclude that 
mineral development is not a threat to Astragalus desereticus currently 
or within the foreseeable future.
Transmission Lines
    Impacts from transmission lines were not considered in the final 
rule to list the species (64 FR 56590, October 20, 1999). The Mona to 
Bonanza high-voltage transmission line is an existing power line near 
Astragalus desereticus habitat located at the easternmost extent of the 
known range of the species (Miller 2016, pers. comm.). A new power line 
proposed in the area is the TransWest Express transmission line. This 
proposed transmission line would use the same corridor as the existing 
Mona to Bonanza transmission line (SWCA Environmental Consultants 2015, 
p. 1). TransWest Express estimated that approximately 10.9 ac (4.4 ha) 
of potential or occupied habitat for the species occurs within 300 ft 
(91 m) of proposed transmission structures, and approximately 0.25 ac 
(0.10 ha) would be directly disturbed (SWCA Environmental Consultants 
2015, p. 17). This estimate included some habitat above 6,000 ft (1,829 
m) that was likely misidentified as occupied habitat (Fitts 2016, pers. 
comm.). Therefore, actual

[[Page 45786]]

disturbance estimates may be slightly less than 0.25 ac (0.10 ha). We 
estimate that up to one percent of the species' total population could 
be impacted if no measures to minimize impacts were taken (U.S. Fish 
and Wildlife Service 2016, p. 29). However, minimal impacts are 
expected to result from the transmission line installation because dust 
abatement measures would be implemented, the proposed route is located 
farther away from Astragalus desereticus populations than the existing 
Mona to Bonanza transmission line, and existing access roads would be 
used within the species' habitat (U.S. Fish and Wildlife Service 2016, 
pp. 25-31). Consequently, impacts from the proposed TransWest Express 
transmission line are not anticipated to result in a population-level 
effect to the species based upon the localized extent of impacts and 
the currently robust status of the species (see Species Abundance, 
Distribution, and Trends). In addition, the species is able to tolerate 
some levels of disturbance, and plants have recolonized disturbed areas 
(Fitts and Fitts 2009, p. 5; Franklin 1990, p. 2).
    In summary, Astragalus desereticus maintains a large, robust 
population next to the existing Mona to Bonanza transmission line, and 
only a very minimal amount of habitat (less than 0.25 ac (0.10 ha)) 
would be disturbed by the proposed future construction of the TransWest 
transmission line. We conclude, based on the available information, 
that transmission lines are not a threat to Astragalus desereticus 
currently or within the foreseeable future.
Climate Change
    Impacts from climate change were not considered in the final rule 
to list the species (64 FR 56590, October 20, 1999). Our current 
analyses under the Act include consideration of ongoing and projected 
changes in climate. The terms ``climate'' and ``climate change'' are 
defined by the Intergovernmental Panel on Climate Change (IPCC). 
``Climate'' refers to the mean and variability of different types of 
weather conditions over time, with 30 years being a typical period for 
such measurements, although shorter or longer periods also may be used 
(IPCC 2007, p. 78). The term ``climate change'' thus refers to a change 
in the mean or variability of one or more measures of climate (e.g., 
temperature or precipitation) that persists for an extended period, 
typically decades or longer, whether the change is due to natural 
variability, human activity, or both (IPCC 2007, p. 78). Various types 
of changes in climate can have direct or indirect effects on species. 
These effects may be positive, neutral, or negative and they may change 
over time, depending on the species and other relevant considerations, 
such as the effects of interactions of climate with other variables 
(e.g., habitat fragmentation) (IPCC 2007, pp. 8-14, 18-19). In our 
analyses, we use our expert judgment to weigh relevant information, 
including uncertainty, in our consideration of various aspects of 
climate change.
    The current rate of a decade-long drought in the southwestern 
United States is one per century (Ault et al. 2013, p. 7538). This 
equates to a 50 percent chance over a 50 year interval. Estimates 
regarding the risk of future persistent droughts in the southwestern 
United States over the time period from 2050 to 2100 increase to 50-90 
percent over the 50 year interval (Ault et al. 2013, pp. 7541-7547). In 
other words, the likelihood of future drought in the southwestern 
United States is stable to increasing when compared to current 
conditions. Climate models that predict future temperatures over three 
different time periods in the 21st century for the southwestern United 
States show the greatest warming in summer months (3.5-6.5 degrees 
Fahrenheit ([deg]F)) (1.9-3.6 degrees Celsius ([deg]C)), with a 
localized maximum increase in temperatures in central Utah (Kunkel et 
al. 2013, p. 72). Nationwide, Utah ranks eighth in rate of warming 
since 1912, with a 0.233[emsp14][deg]F (0.129 [deg]C) increase per 
decade; and seventh in rate of warming since 1970, with a 
0.588[emsp14][deg]F (0.327 [deg]C) increase per decade (Tebaldi et al. 
2012, pp. 3 and 5). We do not have information regarding the increased 
likelihood of drought or temperature increases at the more detailed 
scale of the range of Astragalus desereticus--a range that encompasses 
only a portion of one county in central Utah. Therefore, more site 
specific predictions are not possible.
    The Astragalus genus has the ability to colonize disturbed or 
unstable habitats in progressively dry climates and thus appears to be 
adapted to drought (Stone 1992, p. 6). Generally plant numbers decrease 
during drought years and recover in subsequent seasons that are less 
dry. For example, many plants of Astragalus desereticus appeared to 
die-off in response to the 2012 drought, but have since repopulated the 
area from the seed bank (Fitts 2016, pers. comm.). Astragalus 
desereticus and other species in the bean family typically have 
persistent seed banks with at least some proportion of the seed bank 
being long-lived because the seeds are physically dormant for long 
periods of time (Dodge 2009, p. 3; Orscheg and Enright 2011, p. 186; 
Segura et al. 2014, p. 75). Dormant seeds have a seed coat that imposes 
a physical barrier between water and the embryo, and this type of 
dormancy provides an ecological advantage by staggering germination 
over a long period of time, protecting the embryo from microbial 
attack, and increasing the longevity of seeds within the soil 
(Fulbright 1987, p. 40). Species with physically dormant seeds 
typically have seeds germinating over many years, which increases the 
probability of the species' persistence in an unpredictable environment 
and has been termed a ``bet-hedging strategy'' (Simons 2009, pp. 1990-
1991; Williams and Elliott 1960, pp. 740-742). This strategy buffers a 
population against catastrophic losses and negative effects from 
environmental variation (Tielb[ouml]rger et al. 2014, p. 4). Astragalus 
desereticus can be dormant and not detectable for some years, but later 
detected in the same area given favorable precipitation conditions 
(Fitts 2016, pers. comm.). This pattern provides some evidence the 
species has a persistent seed bank and possibly other life stages that 
remain dormant during drought conditions. As a result, multiple years 
of surveys may be necessary to determine if Astragalus desereticus is 
present within suitable habitat.
    Astragalus desereticus appears well-adapted to a dry climate and 
can quickly colonize after disturbance. Plants growing in high-stress 
landscapes (e.g., poor soils and variable moisture) are generally 
adapted to stress and thus may experience lower mortality during severe 
droughts (Gitlin et al. 2006, pp. 1477 and 1484). Furthermore, plants 
and plant communities of arid and semi-arid systems may be less 
vulnerable to the effects of climate change if future climate 
conditions are within the historic natural climatic variation 
experienced by the species (Tielb[ouml]rger et al. 2014, p. 7). The 
species likely has experienced multiple periods of prolonged drought 
conditions in the past as documented from reconstructed pollen records 
in sagebrush steppe lands (Mensing et al. 2007, pp. 8-10). Natural 
climatic variation in the Southwest for the last 500 years included 
periodic major droughts (Kunkle et al. 2013, p. 14). Therefore, it is 
likely that the species will be able to withstand future periods of 
prolonged drought.
    In summary, climate change is affecting and will continue to affect 
temperature and precipitation events. We expect that Astragalus 
desereticus, like other narrow endemics, could experience future 
climate change-

[[Page 45787]]

related drought. However, current data are not sufficiently reliable at 
the local level to predict the scope of effects of future climate 
change-related drought. The information we do have indicates the 
species and the genus are adapted to drought and are able to re-
colonize disturbed areas. Therefore, based upon available information, 
we conclude that climate change is not a threat to Astragalus 
desereticus currently or within the foreseeable future.
Summary of Factor A
    The following stressors warranted consideration as possible current 
or future threats to Astragalus desereticus under Factor A: (1) 
Residential development, (2) highway maintenance and widening, (3) 
livestock grazing and trampling, (4) mineral development, (5) 
transmission lines, and (6) climate change. However, these stressors 
either have not occurred to the extent anticipated at the time of 
listing, are being adequately managed, or the species is tolerant of 
the stressor as described below.
    <bullet> Minimal disturbance from residential development has 
occurred on the species' habitat to date and is anticipated in the 
future because of the steep, rocky, erosive nature of the species' 
habitat. In addition, 67 percent of the species' habitat is protected 
from residential development due to its inclusion in a State wildlife 
management area.
    <bullet> No highway widening is anticipated by UDOT in occupied 
habitat, and herbicide use and other disturbances are avoided in 
habitat for the species.
    <bullet> The steep, rocky nature of the species' habitat and sparse 
forage minimize livestock grazing, and 67 percent of all habitat is 
carefully managed by UDWR to restrict it from grazing.
    <bullet> The lack of inquiries and low potential regarding mineral 
development indicate that mineral development is not a threat.
    <bullet> The existing transmission line is not a threat to the 
species, and activity associated with the proposed transmission line 
occurring within the species' occupied habitat will be confined to 
existing access roads.
    <bullet> The species and its genus are likely adapted to drought 
related to climate change.
    <bullet> The species appears able to readily re-colonize disturbed 
areas.
    Therefore, based on the available information, we do not consider 
there to be any threats now, nor are there likely to be any threats in 
the future, related to the present or threatened destruction, 
modification, or curtailment of habitat or range of Astragalus 
desereticus.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Factor B requires the Service to consider overutilization of 
Astragalus desereticus for commercial, recreational, scientific, or 
educational purposes. Overutilization for any purpose was not 
considered a threat in the final rule to list the species (64 FR 56593, 
October 20, 1999). The only collections of the species that we are 
aware of were for scientific purposes. An unknown number of seeds were 
collected in 2007 and approximately 850 seeds were collected from 45 
plants in 2008. In addition, 1,016 seeds were collected from 55 plants 
in 2009 for germination trials and long-term seed storage at Red Butte 
Gardens and Arboretum in Salt Lake City, Utah, and the National Center 
for Genetic Resources Preservation in Fort Collins, Colorado (Dodge 
2009, p. 4). This amount of collection is insignificant given the 
current population estimates for the species, and overall it is 
beneficial because it will improve our understanding of species 
propagation and ensure genetic preservation. We are not aware of any 
other utilization of the species. Therefore, based on the available 
information, we do not consider there to be any threats now, nor are 
there likely to be any threats in the future, related to 
overutilization for commercial, recreational, scientific, or 
educational purposes of Astragalus desereticus.

C. Disease or Predation

    Factor C requires the Service to consider impacts to Astragalus 
desereticus from disease and predation. Disease and predation were not 
considered threats in the final rule to list the species (64 FR 56593, 
October 20, 1999). We are not aware of any issues or potential 
stressors regarding disease or insect predation. As described in more 
detail under Factor A, grazing--which could be considered a form of 
predation--is limited in the species' habitat and it does not affect 
the species throughout its range or at a population level. Therefore, 
based on the available information, we do not consider there to be any 
threats now, nor are there likely to be any threats in the future, 
related to disease or predation of Astragalus desereticus.

D. The Inadequacy of Existing Regulatory Mechanisms

    Under this factor, we examine whether existing regulatory 
mechanisms are inadequate to address the threats to Astragalus 
desereticus discussed under other factors. Section 4(b)(1)(A) of the 
Act requires the Service to take into account ``those efforts, if any, 
being made by any State or foreign nation, or any political subdivision 
of a State or foreign nation, to protect such species.'' In relation to 
Factor D under the Act, we interpret this language to require us to 
consider relevant Federal, State, and Tribal laws, regulations, and 
other such mechanisms that may minimize any of the threats we describe 
in the threats analyses under the other four factors, or otherwise 
enhance conservation of the species. We give strongest weight to 
statutes and their implementing regulations and to management direction 
that stems from those laws and regulations; an example would be State 
governmental actions enforced under a State statute or constitution, or 
Federal action under statute.
    For currently listed species that are being considered for 
delisting, we consider the adequacy of existing regulatory mechanisms 
to address threats to the species absent the protections of the Act. We 
examine whether other regulatory mechanisms would remain in place if 
the species were delisted, and the extent to which those mechanisms 
will continue to help ensure that future threats will be reduced or 
minimized.
    In our discussion under Factors A, B, C, and E, we evaluate the 
significance of threats as mitigated by any conservation efforts and 
existing regulatory mechanisms. Where threats exist, we analyze the 
extent to which conservation measures and existing regulatory 
mechanisms address the specific threats to the species. Regulatory 
mechanisms may reduce or eliminate the impacts from one or more 
identified threats.
    As previously discussed, conservation measures initiated by UDWR, 
SITLA, and UDOT under the Conservation Agreement manage potential 
threats caused by residential development, highway maintenance and 
widening, and livestock grazing and trampling, as well as the more 
recently identified proposed transmission line. In addition to these 
conservation measures, relevant Utah State statutes and UDWR 
administrative rules that will remain in effect regardless of the 
species' status under the Act include:
    1. Title 23--Wildlife Resources Code of Utah, Chapter 21--Lands and 
Waters for Wildlife Purposes, Section 5--State-owned lands authorized 
for use as wildlife management areas, fishing waters, and for other 
recreational activities. This statute authorizes the creation, 
operation, maintenance, and

[[Page 45788]]

management of wildlife management areas including the Birdseye Unit of 
the Northwest Manti Wildlife Management Area. The Birdseye Unit 
contains 67 percent of all known habitat occupied by Astragalus 
desereticus. Consequently, two-thirds of all known habitat is currently 
managed and will continue to be managed as wildlife habitat regardless 
of the species' status under the Act.
    2. UDWR Administrative Rule R657-28--Use of Division Lands. This 
administrative rule describes the lawful uses and activities on UDWR 
lands including Birdseye Unit of the Northwest Manti Wildlife 
Management Area. These uses cannot conflict with the intended land use 
or be detrimental to wildlife or wildlife habitat. This administrative 
rule provides further support to beneficial management on the 67 
percent of occupied habitat managed by UDWR, regardless of the species' 
status under the Act.
    We are not aware of any Astragalus desereticus occupied habitat on 
Federal lands. We anticipate that the conservation measures initiated 
by UDWR, SITLA, and UDOT under the Conservation Agreement will continue 
through at least 2036. Consequently, we find that conservation measures 
along with existing State regulatory mechanisms are adequate to address 
these specific stressors absent protections under the Act.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    Factor E requires the Service to consider any other factors that 
may be affecting Astragalus desereticus. Under this factor, we discuss: 
(1) Rarity, (2) stochastic events, and (3) cumulative effects.
Rarity
    In our final rule listing Astragalus desereticus, small population 
size was considered a concern for the species because of the potential 
for low levels of genetic diversity as compared to other more 
widespread related species (64 FR 56593, October 20, 1999). A species 
may be considered rare due to: (1) a Limited geographic range, (2) 
occupation of specialized habitats, or (3) small population numbers 
(Primack 1998, p. 176). This species meets each of these 
qualifications.
    Astragalus desereticus is likely a localized neoendemic, that is, 
it is a relatively new species on the scale of geologic time and likely 
has always been geographically restricted (rare) (Stone 1992, p. 6). A 
species that has always been rare, yet continues to survive, could be 
well-equipped to continue to exist into the future. Many naturally rare 
species exhibit traits that allow them to persist for long periods 
within small geographic areas, despite their small population size. 
Consequently, the fact that a species is rare does not necessarily 
indicate that it may be endangered or threatened. Rarity alone, in the 
absence of other stressors, is not a threat. Despite the species' 
unique habitat characteristics and limited range, its current 
population numbers and preliminary demographic analyses show that its 
known population (via information at monitored sites) is much larger 
than in 1990 when the first surveys were conducted and will likely be 
sustained due to the species' resiliency and the absence of significant 
stressors. Additionally, as noted under Factor B, seeds have been 
collected for long-term seed storage at Red Butte Gardens and Arboretum 
in Salt Lake City, Utah, and the National Center for Genetic Resources 
Preservation in Fort Collins, Colorado (Dodge 2009, p. 4). This 
collection provides added security for the species.
Stochastic Events
    In our final rule listing Astragalus desereticus, stochastic 
events--particularly fire, drought, and disease--were considered a 
threat because of the species' small population size and highly 
restricted range (64 FR 56593, October 20, 1999). Because rare species 
may be vulnerable to single event occurrences, it is important to have 
information on how likely it is such an event may occur and how it may 
affect the species. Demographic stochasticity--random events in 
survival and reproductive success--and genetic stochasticity--from 
inbreeding and changes in gene frequency--are not significant threats 
based on limited abundance trends and the known population size of the 
species (Stone 1992, pp. 8-10). The same author noted that 
environmental stochasticity--such as fire, drought, and disease--may be 
a threat to the species (Stone 1992, p. 10). However, we have since 
concluded that fire is unlikely in the open, sparsely wooded habitat 
that the species favors (72 FR 3379, January 25, 2007; U.S. Fish and 
Wildlife 2011, p. 21). As noted in the discussion of climate change 
under Factor A, the species appears to be drought tolerant, showing an 
ability to rebound following drought and re-colonize disturbed areas in 
progressively dry climates. Lastly, as noted under Factor C, there is 
no evidence of disease or insect pests. Since listing, survey data has 
shown the species' known range is somewhat larger and its population 
numbers are much higher than previously thought, which indicates a 
tolerance to stochastic events. These increases are likely due to a 
combination of expanded surveys and increases in population.
Summary of Factor E
    Given the lack of threats within the Astragalus desereticus 
population and the robust population size, we conclude that rarity and 
stochastic events are not threats now, nor are they likely to be 
threats in the future, to Astragalus desereticus.
Cumulative Effects
    Many of the stressors discussed in this analysis could work in 
concert with each other resulting in a cumulative adverse effect to 
Astragalus desereticus, e.g., one stressor may make the species more 
vulnerable to other threats. For example, stressors discussed under 
Factor A that individually do not rise to the level of a threat could 
together result in habitat loss. Similarly, small population size in 
combination with stressors discussed under Factor A could present a 
potential concern. However, most of the potential stressors we 
identified either have not occurred to the extent originally 
anticipated at the time of listing in 1999 or are adequately managed as 
described in this proposal to delist the species. Furthermore, those 
stressors that are evident, such as drought and rarity, appear well-
tolerated by the species. In addition, we do not anticipate stressors 
to increase on UDWR lands that afford protections to the species on 67 
percent of occupied habitat for the reasons discussed in this delisting 
proposal. Furthermore, the increases documented in the abundance and 
distribution of the species since it was listed do not support a 
conclusion that cumulative effects threaten the species.

Proposed Determination of Species Status

Introduction

    Section 4 of the Act (16 U.S.C. 1533), and its implementing 
regulations at 50 CFR part 424, set forth the procedures for 
determining whether a species is an endangered species or threatened 
species and should be included on the Federal Lists of Endangered and 
Threatened Wildlife and Plants (listed). The Act defines an endangered 
species as any species that is ``in danger of extinction throughout all 
or a significant portion of its range'' and a threatened species as any 
species ``that is likely to become endangered throughout all or a 
significant portion of its range within

[[Page 45789]]

the foreseeable future.'' The phrase ``significant portion of its 
range'' (SPR) is not defined by the Act, and, since the Service's 
policy interpreting the phrase was vacated by the court in Center for 
Biological Diversity v. Sally Jewel, No. 14-cv-02506-RM (D. Ariz. Mar. 
29, 2017), we currently do not have a binding interpretation that 
addresses: (1) The outcome of a determination that a species is either 
in danger of extinction or likely to become so in the foreseeable 
future throughout a significant portion of its range; or (2) what 
qualifies a portion of a range as ``significant.'' We have examined the 
plain language of the Act and court decisions addressing the Service's 
application of the SPR phrase in various listing decisions, and for 
purposes of this rulemaking we are applying the following 
interpretation for the phrase ``significant portion of its range'' and 
its context in determining whether or not a species is an endangered 
species or a threatened species.
    Two district court decisions have evaluated whether the outcomes of 
the Service's determinations that a species is in danger of extinction 
or likely to become so in the foreseeable future in a significant 
portion of its range were reasonable. Defenders of Wildlife v. Salazar, 
729 F. Supp. 2d 1207 (D. Mont. 2010) (appeal dismissed as moot because 
of public law vacating the listing, 2012 U.S. App. LEXIS 26769 (9th 
Cir. Nov. 7, 2012)); WildEarth Guardians v. Salazar, No. 09-00574-PHX-
FJM, 2010 U.S. Dist. LEXIS 105253 (D. Ariz. Sept. 30, 2010). Both 
courts found that once the Service determines that a ``species''--which 
can include a species, subspecies, or DPS under ESA Section 3(16)--
meets the definition of ``endangered species'' or ``threatened 
species,'' the species must be listed in its entirety and the Act's 
protections applied consistently to all members of that species 
(subject to modification of protections through special rules under 
sections 4(d) and 10(j) of the Act). See Defenders, 729 F. Supp. 2d at 
1222 (delisting the Northern Rocky Mountain DPS of gray wolf except in 
the Wyoming portion of its range (74 FR 15123, April 2, 2009) was 
unreasonable because the ESA unambiguously prohibits listing or 
protecting part of a DPS); WildEarth Guardians, 2010 U.S. Dist. LEXIS 
105253, at 15-16 (the Service's finding that listing the Gunnison's 
prairie dog in the ``montane portion'' of its range was warranted (73 
FR 6660, February 5, 2008) was unreasonable because the Service 
``cannot determine that anything other than a species, as defined by 
the ESA, is an endangered or threatened species''). The issue has not 
been addressed by a Federal Court of Appeals.
    For the purposes of this rule, we interpret the phrase 
``significant portion of its range'' (SPR) in the Act's definitions of 
``endangered species'' and ``threatened species'' to provide an 
independent basis for listing a species in its entirety; thus there are 
two situations (or factual bases) under which a species would qualify 
for listing: A species may be in danger of extinction or likely to 
become so in the foreseeable future throughout all of its range; or a 
species may be in danger of extinction or likely to become so 
throughout a significant portion of its range. If a species is in 
danger of extinction throughout an SPR, it, the species, is an 
``endangered species.'' The same analysis applies to ``threatened 
species.'' Therefore, the consequence of finding that a species is in 
danger of extinction or likely to become so throughout a significant 
portion of its range is that the entire species will be listed as an 
endangered species or threatened species, respectively, and the Act's 
protections will be applied to all individuals of the species wherever 
found.
    Although there are potentially many ways to determine whether a 
portion of a species' range is ``significant,'' we conclude, for the 
purposes of this rule, that the significance of the portion of the 
range should be determined based on its biological contribution to the 
conservation of the species. For this reason, we describe the threshold 
for ``significant'' in terms of an increase in the risk of extinction 
for the species. We conclude that such a biologically based definition 
of ``significant'' best conforms to the purposes of the Act, is 
consistent with judicial interpretations, and best ensures species' 
conservation.
    For the purposes of this rule, we determine if a portion's 
biological contribution is so important that the portion qualifies as 
``significant'' by asking whether, without that portion, the species in 
the remainder of its range warrants listing (i.e., is in danger of 
extinction or likely to become so in the foreseeable future). 
Conversely, we would not consider the portion of the range at issue to 
be ``significant'' if the species would not warrant listing in the 
remainder of its range even if the population in that portion of the 
range in question became extirpated (extinct locally).
    We interpret the term ``range'' to be the general geographical area 
within which the species is currently found, including those areas used 
throughout all or part of the species' life cycle, even if not used on 
a regular basis. We consider the ``current'' range of the species to be 
the range occupied by the species at the time the Service makes a 
determination under section 4 of the Act. The phrase ``is in danger'' 
in the definition of ``endangered species'' denotes a present-tense 
condition of being at risk of a current or future undesired event. 
Hence, to say a species ``is in danger'' in an area where it no longer 
exists--i.e., in its historical range where it has been extirpated--is 
inconsistent with common usage. Thus, ``range'' must mean ``current 
range,'' not ``historical range.'' A corollary of this logic is that 
lost historical range cannot constitute a significant portion of a 
species' range where a species is in danger of extinction or likely to 
become so within the foreseeable future (i.e., it cannot be currently 
in danger of extinction in a portion of its range where it is already 
extirpated). While we conclude that a species cannot be in danger of 
extinction in its lost historical range, taking into account the 
effects of loss of historical range on a species is an important 
component of determining a species' current and future status.
    In implementing these independent bases for listing a species, as 
discussed above, we list any species in its entirety either because it 
is in danger of extinction now or likely to become so in the 
foreseeable future throughout all of its range or because it is in 
danger of extinction or likely to become so in the foreseeable future 
throughout a significant portion of its range. With regard to the text 
of the Act, we note that Congress placed the ``all'' language before 
the SPR phrase in the definitions of ``endangered species'' and 
``threatened species.'' This suggests that Congress intended that an 
analysis based on consideration of the entire range should receive 
primary focus. Thus, the first step in our assessment of the status of 
a species is to determine its status throughout all of its range. 
Depending on the status throughout all of its range, we will 
subsequently examine whether it is necessary to determine its status 
throughout a significant portion of its range.
    Under section 4(a)(1) of the Act, we determine whether a species is 
an endangered species or threatened species because of any of the 
following: (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

[[Page 45790]]

manmade factors affecting its continued existence. These five factors 
apply whether we are analyzing the species' status throughout all of 
its range or throughout a significant portion of its range.

Astragalus Desereticus--Determination of Status Throughout All of Its 
Range

    We conducted a review of the status of Astragalus desereticus and 
assessed the five factors to evaluate whether Astragalus desereticus is 
in danger of extinction, or likely to become so in the foreseeable 
future, throughout all of its range. We also consulted with species 
experts and land management staff with UDWR and UDOT who are actively 
managing for the conservation of the species. We carefully assessed the 
best scientific and commercial information available regarding the 
past, present, and future threats to the species. We considered all of 
the stressors identified at the time of listing as well as newly 
identified potential stressors such as mineral development, 
transmission lines, and climate change. As previously described, the 
stressors considered in our five-factor analysis fall into one or more 
of the following categories:
    <bullet> Stressors including residential development, highway 
widening, and livestock grazing and trampling have not occurred to the 
extent anticipated at the time of listing, and existing information 
indicates that the extent of impact will not change in the future.
    <bullet> Stressors including highway maintenance, livestock 
grazing, transmission lines, and mineral development are adequately 
managed through the Conservation Agreement and measures described in 
the Biological Opinion for the TransWest Express Transmission Line 
Project, and existing information indicates that this management will 
not change in the future.
    <bullet> The species is tolerant of stressors including climate 
change, transmission lines, rarity, stochastic events, and cumulative 
effects, and existing information indicates that this tolerance will 
not change in the future.
    These conclusions are supported by the available information 
regarding species abundance, distribution, and trends and are in 
agreement with information presented in our advanced notice of proposed 
rulemaking (72 FR 3379, January 25, 2007) and in our 5-year review 
(U.S. Fish and Wildlife Service 2011). Thus, after assessing the best 
available information, we conclude that Astragalus desereticus is not 
in danger of extinction throughout all of its range, nor is it likely 
to become so in the foreseeable future.

Determination of Status Throughout a Significant Portion of Its Range

    Consistent with our interpretation that there are two independent 
bases for listing species as described above, after examining the 
species' status throughout all of its range, we now examine whether it 
is necessary to determine its status throughout a significant portion 
of its range. We must give operational effect to both the ``throughout 
all'' of its range language and the SPR phrase in the definitions of 
``endangered species'' and ``threatened species.'' The Act, however, 
does not specify the relationship between the two bases for listing. As 
discussed above, to give operational effect to the ``throughout all'' 
language that is referenced first in the definition, consideration of 
the species' status throughout the entire range should receive primary 
focus and we should undertake that analysis first. In order to give 
operational effect to the SPR language, the Service should undertake an 
SPR analysis if the species is neither in danger of extinction nor 
likely to become so in the foreseeable future throughout all of its 
range, to determine if the species should nonetheless be listed because 
of its status in an SPR. Thus, we conclude that, to give operational 
effect to both the ``throughout all'' language and the SPR phrase, the 
Service should conduct an SPR analysis if (and only if) a species does 
not warrant listing according to the ``throughout all'' language.
    Because we determined that Astragalus desereticus is not in danger 
of extinction or likely to become so in the foreseeable future 
throughout all of its range, we will consider whether there are any 
significant portions of its range in which the species is in danger of 
extinction or likely to become so.
    Although there are potentially many ways to determine whether a 
portion of a species' range is ``significant,'' we conclude, as noted 
above, for the purposes of this rule, that the significance of the 
portion of the range should be determined based on its biological 
contribution to the conservation of the species. For this reason, we 
describe the threshold for ``significant'' in terms of an increase in 
the risk of extinction for the species. We conclude that such a 
biologically based definition of ``significant'' best conforms to the 
purposes of the Act, is consistent with judicial interpretations, and 
best ensures species' conservation.
    We evaluate biological significance based on the principles of 
conservation biology using the concepts of redundancy, resiliency, and 
representation because decreases in the redundancy, resiliency, and 
representation of a species lead to increases in the risk of extinction 
for the species. Redundancy (having multiple resilient populations 
considering genetic and environmental diversity) may be needed to 
provide a margin of safety for the species to withstand catastrophic 
events. Resiliency describes the characteristics of a species that 
allow it to recover from stochastic events or periodic disturbance. 
Representation (the range of variation found in a species) ensures that 
the species' ability to adapt to changing environments is conserved. 
Redundancy, resiliency, and representation are not independent of each 
other, and some characteristics of a species or area may contribute to 
all three. For example, distribution across a wide variety of habitats 
is an indicator of representation, but it may also indicate a broad 
geographic distribution contributing to redundancy (decreasing the 
chance that any one event affects the entire species), and the 
likelihood that some habitat types are less susceptible to certain 
threats, contributing to resiliency (the ability of the species to 
recover from disturbance). None of these concepts is intended to be 
mutually exclusive, and a portion of a species' range may be determined 
to be ``significant'' due to its contributions under any one of these 
concepts.
    For the purposes of this rule, we determine if a portion's 
biological contribution is so important that the portion qualifies as 
``significant'' by asking whether, without that portion, the 
representation, redundancy, or resiliency of the species would be so 
impaired that the species would have an increased vulnerability to 
threats to the point that the overall species would be in danger of 
extinction or likely to become so in the foreseeable future (i.e., 
would be an ``endangered species'' or a ``threatened species''). 
Conversely, we would not consider the portion of the range at issue to 
be ``significant'' if there is sufficient resiliency, redundancy, and 
representation elsewhere in the species' range that the species would 
not be in danger of extinction or likely to become so throughout its 
range even if the population in that portion of the range in question 
became extirpated (extinct locally).
    We recognize that this definition of ``significant'' establishes a 
threshold that is relatively high. Given that the outcome of finding a 
species to be in danger of extinction or likely to become so in an SPR 
would be to list the species and apply protections of the Act to all 
individuals of the species wherever

[[Page 45791]]

found, it is important to use a threshold for ``significant'' that is 
robust. It would not be meaningful or appropriate to establish a very 
low threshold whereby a portion of the range can be considered 
``significant'' even if only a negligible increase in extinction risk 
would result from its loss. Because nearly any portion of a species' 
range can be said to contribute some increment to a species' viability, 
use of such a low threshold would require us to impose restrictions and 
expend conservation resources disproportionately to conservation 
benefit: Listing would be rangewide, even if only a portion of the 
range with minor conservation importance to the species is imperiled. 
On the other hand, it would be inappropriate to establish a threshold 
for ``significant'' that is too high. This would be the case if the 
standard were, for example, that a portion of the range can be 
considered ``significant'' only if threats in that portion result in 
the entire species' being currently in danger of extinction or likely 
to become so. Such a high bar would not give the SPR phrase independent 
meaning, as the Ninth Circuit held in Defenders of Wildlife v. Norton, 
258 F.3d 1136 (9th Cir. 2001).
    The definition of ``significant'' used in this rule carefully 
balances these concerns. By setting a relatively high threshold, we 
minimize the degree to which restrictions would be imposed or resources 
expended that do not contribute substantially to species conservation. 
But we have not set the threshold so high that the phrase ``throughout 
a significant portion of its range'' loses independent meaning. 
Specifically, we have not set the threshold as high as it was under the 
interpretation presented by the Service in the Defenders litigation. 
Under that interpretation, the portion of the range would have to be so 
important that the current species level of imperilment in the portion 
results in the species currently being in danger of extinction or 
likely to become so throughout all of its range. Under the definition 
of ``significant'' used in this rule, the portion of the range need not 
rise to such an exceptionally high level of biological significance. 
(We recognize that, if the species is imperiled in a portion that rises 
to that higher level of biological significance, then we should 
conclude that the species is in fact imperiled throughout all of its 
range, and that we would not need to rely on the SPR language for such 
a listing.) Rather, under this interpretation we ask whether the 
species would be in danger of extinction or likely to become so 
everywhere without that portion, i.e., if that portion were 
hypothetically completely extirpated. In other words, the portion of 
the range need not be so important that being merely in danger of 
extinction in that portion or likely to become so would be sufficient 
to cause the species to be in danger of extinction or likely to become 
so in the foreseeable future throughout all of its range. Instead, we 
evaluate whether the complete extirpation (in a hypothetical future) of 
the species in that portion would at that point cause the species 
throughout its remaining range to be in danger of extinction or likely 
to become so in the foreseeable future.
    We are aware that the court in Center for Biological Diversity v. 
Sally Jewel found that this definition of ``significant'' does not give 
sufficient independent meaning to the SPR phrase. However, the court's 
decision was based on two misunderstandings about the interpretation of 
``significant.'' First, the court's decision was based on its finding 
that, as with the interpretation that the court rejected in Defenders, 
the definition of significant does not allow for an independent basis 
for listing. However, this definition of significant is not the same as 
the definition applied in Defenders, which looked at the current status 
within the portion and asked what the effect on the remainder of the 
species was. By contrast, this definition of significance uses a 
hypothetical test of loss of the portion and asks what the effect on 
the remainder of the species would be; the current status of the 
species in that portion is relevant only for determining the listing 
status if the portion has been determined to be significant. This 
definition of ``significant'' establishes a lower threshold than 
requiring that the species' current status in that portion of its range 
causes the species to be in danger of extinction throughout all of its 
range or likely to become so in the foreseeable future.
    The second misunderstanding was the court's characterization of the 
listing determination for the African coelacanth as an indication the 
Services have had difficulty accurately applying this definition of 
``significant.'' However, in that listing determination, the conclusion 
was that the species was not in danger of extinction throughout all of 
its range or likely to become so in the foreseeable future but it did 
warrant listing because of its status in a significant portion of its 
range. The only reason for not listing the entire species was that the 
population in that portion of the range met the definition of a 
distinct population segment (DPS), and therefore the agency listed the 
DPS instead of the entire species. The population in an SPR is not 
automatically a DPS so, contrary to the court's reasoning the 
definition of ``significant'' can be applied and result in listing a 
species that would not otherwise be listed. In light of these flaws, we 
are currently seeking reconsideration of the district court's decision.
    To undertake this analysis, we first identify any portions of the 
species' range that warrant further consideration. The range of a 
species can theoretically be divided into portions in an infinite 
number of ways. To identify only those portions that warrant further 
consideration, we determine whether there is substantial information 
indicating that there are any portions of the species' range: (1) That 
may be ``significant,'' and (2) where the species may be in danger of 
extinction or likely to become so in the foreseeable future. We 
emphasize that answering these questions in the affirmative is not a 
determination that the species is in danger of extinction or likely to 
become so in the foreseeable future throughout a significant portion of 
its range--rather, it is a step in determining whether a more detailed 
analysis of the issue is required.
    In practice, one key part of identifying portions for further 
analysis may be whether the threats or effects of threats are 
geographically concentrated in some way. If a species throughout its 
range is not in danger of extinction or likely to become so in the 
foreseeable future and the threats to the species are essentially 
uniform throughout its range, then the species is not likely to be in 
danger of extinction or likely to become so in the foreseeable future 
in any portion of its range. Moreover, if any concentration of threats 
applies only to portions of the species' range that are not 
``significant,'' such portions will not warrant further consideration.
    If we identify any portions that may be both (1) significant and 
(2) where the species may be in danger of extinction or likely to 
become so in the foreseeable future, we engage in a more detailed 
analysis to determine whether these standards are indeed met. The 
identification of an SPR does not create a presumption, prejudgment, or 
other determination as to whether the species in that identified SPR is 
in danger of extinction or likely to become so in the foreseeable 
future. We must go through a separate analysis to determine whether the 
species is in danger of extinction or likely to become so in the SPR. 
To make that determination, we will use the same standards and 
methodology that we use to determine if a species is in danger of 
extinction or

[[Page 45792]]

likely to become so in the foreseeable future throughout all of its 
range.
    Once we have identified portions of the species' range for further 
analysis, depending on the biology of the species, its range, and the 
threats it faces, it might be more efficient for us to address the 
significance question first or the status question first. Thus, if we 
determine that a portion of the range is not ``significant,'' we do not 
need to determine whether the species is in danger of extinction or 
likely to become so in the foreseeable future there; if we determine 
that the species is not in danger of extinction or likely to become so 
in a portion of its range, we do not need to determine if that portion 
is ``significant.''

Astragalus desereticus--Determination of Significant Portion of Its 
Range

    Applying the process described above, to identify whether any 
portions warrant further consideration, we determine whether there is 
substantial information indicating that (1) the portions may be 
significant and (2) the species may be in danger of extinction in those 
portions or likely to become so within the foreseeable future. To 
identify portions that may be in danger of extinction or likely to 
become so in the foreseeable future, we consider whether there is 
substantial information to indicate that any threats or effects of 
threats are geographically concentrated in any portion of the species' 
range. If the threats to the species are affecting it uniformly 
throughout its range, no portion is likely to have a greater risk of 
extinction, and thus would not warrant further consideration. Moreover, 
if any concentration of threats apply only to portions of the range 
that clearly do not meet the biologically based definition of 
``significant'' (i.e., the loss of that portion clearly would not be 
expected to increase the vulnerability to extinction of the entire 
species), those portions will not warrant further consideration.
    We evaluated the range of Astragalus desereticus to determine if 
any area could be considered a significant portion of its range. As 
mentioned above, one way to identify portions for further analyses is 
to identify portions that might be of biological or conservation 
importance, such as any natural, biological divisions within the range 
that may, for example, provide population redundancy or have unique 
ecological, genetic, or other characteristics. Based on the small range 
of the species--approximately 345 ac (140 ha) in an area 2.8 mi (4.5 
km) x 0.3 mi (0.5 km)--we determined that the species is a single, 
contiguous population and that there are no separate areas of the range 
that are significantly different from others or that are likely to be 
of greater biological or conservation importance than any other areas 
due to natural biological reasons alone. Therefore, there is not 
substantial information that logical, biological divisions exist within 
the species' range.
    After determining there are no natural biological divisions 
delineating separate portions of the Astragalus desereticus population, 
we next examined whether any threats are geographically concentrated in 
some way that would indicate the species could be in danger of 
extinction, or likely to become so, in that area. There is some 
difference in livestock grazing between State and private lands, with 
little or no grazing on the 67 percent of habitat occurring on State 
lands and occasional potential grazing on the remaining private lands. 
However, steep topography limits grazing everywhere, and there are not 
fences separating State and private lands (U.S. Fish and Wildlife 
Service 2011, p. 17). We have reviewed other potential threats and 
conclude that none of them are concentrated in any portion of the 
species' range so as to affect the representation, redundancy, or 
resiliency of the species.
    We did not identify any portions where Astragalus desereticus may 
be in danger of extinction or likely to become so in the foreseeable 
future. Therefore, no portions warrant further consideration to 
determine whether the species may be in danger of extinction or likely 
to become so in the foreseeable future in a significant portion of its 
range. We conclude that the species is, therefore, not an endangered 
species or threatened species based on its status in a significant 
portion of its range.

Astragalus desereticus--Determination of Status

    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to Astragalus desereticus. Because the species is not in danger of 
extinction now or in the foreseeable future throughout all of its range 
or any significant portion of its range, the species does not meet the 
definition of an endangered species or threatened species.

Effects of the Rule

    This proposal, if made final, would revise 50 CFR 17.12(h) to 
remove Astragalus desereticus from the Federal List of Endangered and 
Threatened Plants. The prohibitions and conservation measures provided 
by the Act, particularly through sections 7 and 9, would no longer 
apply to this species. Federal agencies would no longer be required to 
consult with the Service under section 7 of the Act in the event that 
activities they authorize, fund, or carry out may affect Astragalus 
desereticus. There is no critical habitat designated for this species.

Post-Delisting Monitoring

    Section 4(g)(1) of the Act requires us, in cooperation with the 
States, to implement a monitoring program for not less than 5 years for 
all species that have been delisted due to recovery. The purpose of 
this requirement is to develop a program that detects the failure of 
any delisted species to sustain itself without the protective measures 
provided by the Act. If, at any time during the monitoring period, data 
indicate that protective status under the Act should be reinstated, we 
can initiate listing procedures, including, if appropriate, emergency 
listing.
    We are proposing delisting for Astragalus desereticus based on new 
information we have received as well as recovery actions taken. Since 
delisting will be due in part to recovery, we have prepared a draft 
post-delisting monitoring (PDM) plan for Astragalus desereticus. The 
PDM plan was prepared in coordination with the Utah Department of 
Natural Resources (UDNR) and UDWR. Monitoring will be a joint effort 
between UDNR and the Service. The PDM plan discusses the current status 
of the species and describes the methods proposed for monitoring if the 
species is removed from the Federal List of Endangered and Threatened 
Plants. Monitoring will occur annually for at least 5 years. Given the 
uncertainty of potential effects from climate change-related drought, 
we have developed three possible scenarios for PDM as follows. At the 
end of 5 years, the species' population status will be evaluated, with 
three possible outcomes: (1) If the population is stable or increasing 
with no new or increasing stressors, PDM will conclude; (2) if the 
population is decreasing, but may be correlated with precipitation 
levels and remains above 20,000 plants on the Wildlife Management Area, 
PDM will be extended for an additional 3-5 years and then the 
population status will be reevaluated; or (3) if the population is 
decreasing without correlation to precipitation levels and there are 
fewer than 20,000 plants on the Wildlife Management Area, a formal 
status review will be initiated. The reasoning behind the second and 
third options ties back to our conclusion that current information 
indicates the species and

[[Page 45793]]

genus are adapted to drought and are able to re-colonize disturbed 
areas. Therefore, if the population numbers are decreasing but may be 
fluctuating due to decreased rainfall or drought, additional monitoring 
may show that the population bounces back during the extended 
monitoring period allowed for in scenario two. However, if the 
population is decreasing beyond what might occur as a result of 
drought, a formal status review would be immediately initiated as 
described in scenario three.
    It is our intent to work with our partners towards maintaining the 
recovered status of Astragalus desereticus. We seek public and peer 
review comments on the draft PDM plan, including its objectives and 
procedures (see Public Comments, above), with the publication of this 
proposed rule.

Required Determinations

Clarity of the Rule

    Executive Order 12866 requires agencies to write regulations that 
are easy to understand. We invite your comments on how to make this 
proposal easier to understand including answers to questions such as 
the following: (1) Is the discussion in the SUPPLEMENTARY INFORMATION 
section of the preamble helpful to your understanding of the proposal? 
(2) Does the proposal contain technical language or jargon that 
interferes with its clarity? (3) Does the format of the proposal 
(groupings and order of sections, use of headings, paragraphing, etc.) 
aid or reduce its clarity? What else could we do to make the proposal 
easier to understand? Send a copy of any comments on how we could make 
this rule easier to understand to: Office of Regulatory Affairs, 
Department of the Interior, Room 7229, 1849 C Street NW., Washington, 
DC 20240. You may also email the comments to this address: 
<a href="/cdn-cgi/l/email-protection#ace9d4dfc9cfecc5c3df82c8c3c582cbc3da"><span class="__cf_email__" data-cfemail="de9ba6adbbbd9eb7b1adf0bab1b7f0b9b1a8">[email protected]</span></a>.

National Environmental Policy Act

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), need not be 
prepared in connection with regulations pursuant to section 4(a) of the 
Act. We published a notice outlining our reasons for this determination 
in the Federal Register on October 25, 1983 (48 FR 49244).

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), E.O. 13175, and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
Tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to Tribes. We have determined that no Tribes will 
be affected by this rule because there are no tribal lands within or 
adjacent to Astragalus desereticus habitat.

References Cited

    A complete list of all references cited in this proposed rule is 
available at http://www.regulations.gov at Docket No. FWS-R6-ES-2016-
0013, or upon request from the Utah Ecological Services Field Office 
(see ADDRESSES).

Authors

    The primary authors of this proposed rule are staff members of the 
Service's Mountain Prairie Region and the Utah Ecological Services 
Field Office (see ADDRESSES and FOR FURTHER INFORMATION CONTACT).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we hereby propose to amend part 17, subchapter B of 
chapter I, title 50 of the Code of Federal Regulations, as set forth 
below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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


Sec.  17.12  [Amended]

0
2. Section 17.12(h) is amended by removing the entry for ``Astragalus 
desereticus'' under ``FLOWERING PLANTS'' from the List of Endangered 
and Threatened Plants.

    Dated: September 7, 2017.
James W. Kurth,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2017-21073 Filed 9-29-17; 8:45 am]
 BILLING CODE 4333-15-P


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