83 FR 52775 - Endangered and Threatened Wildlife and Plants; Removing Deseret Milkvetch (Astragalus desereticus) From the Federal List of Endangered and Threatened Plants

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service

Federal Register Volume 83, Issue 202 (October 18, 2018)

We, the U.S. Fish and Wildlife Service (Service), are removing

[Federal Register Volume 83, Number 202 (Thursday, October 18, 2018)]
[Rules and Regulations]
[Pages 52775-52786]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-22718]



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DEPARTMENT OF THE INTERIOR



Fish and Wildlife Service



50 CFR Part 17



[Docket No. FWS-R6-ES-2016-0013; FXES11130900000C6-189-FF09E42000]

RIN 1018-BB41




Endangered and Threatened Wildlife and Plants; Removing Deseret 

Milkvetch (Astragalus desereticus) From the Federal List of Endangered 

and Threatened Plants



AGENCY: Fish and Wildlife Service, Interior.



ACTION: Final rule; document availability.



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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are removing 

Deseret milkvetch (Astragalus desereticus) from the Federal List of 

Endangered and Threatened Plants due to recovery. Based on the best 

available scientific and commercial data, threats to Deseret milkvetch 

identified at the time of listing are not as significant as originally 

anticipated and are being adequately managed, the species' population 

is much greater than was known at the time of listing, and threats to 

this species have been sufficiently minimized such that it no longer 

meets the definition of an endangered species or threatened species 

under the Endangered Species Act of 1973, as amended (Act).



DATES: This final rule is effective November 19, 2018.



ADDRESSES: Comments, materials received and supporting documentation 

used in the preparation of this final rule are available on the 

internet at http://www.regulations.gov under Docket No. FWS-R6-ES-2016-

0013. Additionally, comments, materials received, and supporting 

documentation are available for public inspection by appointment at our 

Utah Ecological Services Field Office (see FOR FURTHER INFORMATION 

CONTACT, below). The post-delisting monitoring plan for Deseret 

milkvetch is available on our Endangered Species Program's national 

website (http://endangered.fws.gov) and the internet at http://www.regulations.gov under Docket No. FWS-R6-ES-2016-0013.



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, UT 84119. If you use a 

telecommunications device for the deaf (TDD), you may call the Federal 

Relay Service at 800-877-8339.



SUPPLEMENTARY INFORMATION:



Previous Federal Actions



    On October 2, 2017, we published a proposed rule to remove Deseret 

milkvetch from the List of Endangered and Threatened Plants (i.e., to 

``delist'' the species) (82 FR 45779). Please refer to that proposed 

rule for a detailed description of the Federal actions concerning this 

species that occurred prior to October 2, 2017.



Species Description and Habitat Information



    Deseret milkvetch was first collected in 1893, again in 1909, then 

not located again until 1981 (Barnaby 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 

Deseret milkvetch by Barneby is the accepted taxonomic status (Barneby 

1989, p. 126; ITIS 2015).

    Deseret milkvetch is a perennial, herbaceous plant in the legume 

family with silvery-gray pubescent leaves that are 2 to 5 inches (4 to 

12 centimeters) 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 

Deseret milkvetch can be found in our 5-year review of the species 

(U.S. Fish and Wildlife Service 2011, pp. 5-7).

    Deseret milkvetch 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 are 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 to 5,700 feet (ft) (1,646 to 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 little unoccupied suitable habitat (Franklin 1990, p. 6; Stone 

1992, p. 6).

    Deseret milkvetch 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 grows on west-

facing road-cuts where plants are typically larger than those found in 

undisturbed habitat (Franklin 1990, p. 2). The species' habitat is 

sparsely vegetated (SWCA Environmental Consultants 2015, p. 7). The 

species is an associate of the pinyon-juniper plant community. It is 

not shade-tolerant but is found in open areas between trees (Goodrich 

et al. 1999, p. 265).

    Deseret milkvetch is probably a relatively new species on the scale 

of geologic time. The species' genus has the ability to colonize 

disturbed or unstable habitats in dry climates. This ability has likely 

hastened the evolution of the genus and given rise to many species of 

Astragalus that are sharply differentiated and individually



[[Page 52776]]



geographically restricted (Stone 1992, p. 6). Deseret milkvetch 

tolerates at least some degree of 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 Deseret milkvetch estimated fewer than 5,000 

plants in a single population (Franklin 1990, p. 3). A subsequent 

survey at 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 to 10,000 plants (64 FR 56590, October 20, 1999).

    In 2008, the Utah Natural Heritage Program surveyed suitable 

habitats and provided 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. The total population estimate was 152,229 plants--including 

seedlings, juveniles, and adults (Fitts and Fitts 2009, p. 4), well 

above the number of plants known to occur in 1990. If only adults were 

counted in the 2008 survey, the population estimate was 86,775 to 

98,818 plants (U.S. Fish and Wildlife Service 2011, p. 10). The species 

remains known from a single population, with multiple colonies.

    In 2009, surveys were expanded, and the updated total population 

estimate was 197,277 to 211,915 juvenile and adult plants (Fitts and 

Fitts 2010, p. 6); however, the survey methodology in this year was not 

clearly described. More plants likely occurred on nearby private land 

with exposed Moroni Formation outcrops, but the landowner 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).

    In 2016, partial surveys were conducted showing dense levels of 

occupancy in the northmost portion of the range, in areas that were 

known to be occupied but had not been previously surveyed (Fitts 2018, 

pers. comm.). In 2017, surveys of all accessible habitats were 

conducted in accordance with the protocol used in 2008, resulting in a 

population estimate of 88,427 (adults and juveniles) in the population 

total, with 50,483 on State lands (UNHP 2018, p. 4-5). Surveys in 2017 

did not include private lands, and so we estimated the total population 

by applying known densities of adjacent State lands to the private land 

acreages (UNHP 2018, entire).

    The 2017 population estimates represent a reduction in population 

from the surveys conducted in 2008 and 2009 but are still well above 

the number of plants known in 1990. We believe the reduction in numbers 

from 2009 to 2017 is consistent with what we know about the species' 

response to drought conditions. In 2015 and 2016, the habitat 

experienced moderate to severe drought conditions (National Drought 

Resilience Partnership 2018, entire). In late 2016 and early 2017, the 

habitat received above-average precipitation levels, and the lower 

overall population coupled with the increased proportion of juvenile 

plants recorded in spring of 2017 would be consistent with a response 

to two seasons of drought followed by increased precipitation in the 

preceding fall causing a germination event. The proportion of juvenile 

plants increased from 15 percent in 2008 to 44 percent in 2017 (USFWS 

2011, p. 10; UNHP 2018, p. 4). We believe this represents a natural 

response cycle to annual precipitation patterns and not a declining 

trend caused by anthropogenic stressors. Additionally, the consistent 

presence of seedlings and juveniles in the 2008, 2009, 2016, and 2017 

surveys indicates that recruitment occurs regularly and a robust 

seedbank exists. Although 2018 survey results are not yet available, we 

expect they will be reflective of the low precipitation level in 2018.

    At the time of listing, we estimated the occupied habitat of 

Deseret milkvetch to include approximately 300 acres (ac) (122 hectares 

(ha)) in an area 1.6 miles (mi) (2.6 kilometers (km)) by 0.3 mi (0.5 

km) (64 FR 56590; October 20, 1999). The most recent occupied habitat 

estimate is approximately 345 ac (140 ha) in an area 2.8 mi (4.5 km) by 

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).

    In summary, periodic surveys of Deseret milkvetch were completed 

from 1990 through 2017. The available information indicates a 

substantial population increase since 1990 when the first surveys were 

conducted (from an estimated 5,000-10,000 plants in 1999 to an 

estimated 88,000 plants in 2017). Population and demographic 

fluctuations between 2008 and 2017 are likely a natural part of this 

species' lifecycle that is related to precipitation. While the exact 

distribution of colonies has shifted over time, there has been no 

overall reduction in the area occupied since the time of listing and 

additional colonies have been located (UNHP 2018, p. 3). Therefore, we 

conclude that the population has been stable to increasing overall 

since the time of listing.



Land Ownership



    An estimated 230 ac (93 ha; 67 percent) of the 345 ac (140 ha) of 

total occupied habitat for Deseret milkvetch are in the Birdseye Unit 

of the Northwest Manti Wildlife Management Area (WMA) owned by the Utah 

Division of Wildlife Resources (UDWR). Of the remaining habitat, 25 ac 

(10 ha; 7 percent) are owned by the Utah Department of Transportation 

(UDOT) and 90 ac (36 ha; 26 percent) are privately owned (UDWR et al. 

2006, p. 4). The Utah School and Institutional Trust Lands 

Administration (SITLA) owns most of the mineral rights in the species' 

habitat (UDWR et al. 2006, p. 7). No populations of Deseret milkvetch 

are known to occur on Federal lands (Franklin 1990, pp. 3-4; Anderson 

2016, pers. comm.).



Conservation Efforts



    A recovery plan for Deseret milkvetch 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 Deseret milkvetch intended to 

facilitate a coordinated conservation effort between the agencies (UDWR 

et al. 2006, entire). The Conservation Agreement for Astragalus 

desereticus (Deseret milkvetch) (Conservation Agreement) was signed and 

approved by UDWR, UDOT, SITLA, and the Service in 2006, with a duration 

of 30 years. The Conservation Agreement provides guidance to 

stakeholders to address threats and establish goals to ensure the long-

term survival of the species (UDWR et al. 2006, p. 7). Conservation 

actions identified in the Conservation Agreement (in italics), their 

current status, and efforts to accomplish these actions are described 

below.

     Maintain species' habitat within the WMA in its natural 

state, restricting habitat disturbance: This action is successful and 

ongoing. UDWR acquired the Birdseye Unit of the Northwest Manti WMA in 

1967. Prior to this acquisition, livestock grazing occurred for more 

than 50 years on the property



[[Page 52777]]



(UDWR et al. 2006, p. 6). Since the acquisition, livestock grazing has 

been used only on a limited basis as a management tool by UDWR. 

However, habitat occupied by Deseret milkvetch is not suitable for 

grazing, and impacts to the species from grazing 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 

the 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 WMA, which likely would 

further benefit the species by reducing habitat fragmentation and 

reducing future human access to the population (Howard 2018, pers. 

comm.). We anticipate that the plan will be finalized within the next 

year (Howard 2018, pers. comm.). Because this plan is currently only in 

draft, we do not rely on it in this final rule to delist the species. 

However, it provides an indication of future management intentions of 

UDWR to the continuing benefit of the species from the ongoing 

management of the WMA.

    Removal of juniper in the WMA to improve habitat may occur, but 

areas occupied by Deseret milkvetch will be avoided to prevent plant 

damage and mortality associated with this type of surface-disturbing 

activity (Howard 2018, pers. comm.). The steep terrain associated with 

Deseret milkvetch makes grazing, juniper removal, and livestock grazing 

in the species' occupied habitat unlikely.

     Retain species' habitat within the WMA under the 

management of UDWR: This action is successful and ongoing. The UDWR 

continues to manage the species' habitat within the WMA in its natural 

state with minimal disturbance, as stipulated in the Conservation 

Agreement (Howard 2016, pers. comm.).

     Evaluate the feasibility of acquiring conservation 

easements or fee title purchases on small private land parcels between 

U.S. Highway 89 and the existing WMA as resources, and willing sellers 

become available: No easements or property have been acquired, and we 

do not rely on this conservation action in this final rule to delist 

the species. However, UDWR has a Statewide initiative to acquire 

additional lands, so that future acquisition may be possible (Howard 

2016, pers. comm.).

     Avoid using herbicides in the species' habitat managed by 

UDOT: This action is successful and ongoing. The UDOT does not use 

herbicides in Deseret milkvetch habitat within highway rights-of-way, 

and has committed to continuing this action as stipulated in the 

Conservation Agreement (Kisen 2016, pers. comm.).

     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.).

     Monitor populations on an annual basis as needed: This 

action is successful and ongoing. Surveys were conducted in May of 

2016, 2017, and 2018 by Utah Natural Heritage Program personnel.

     Continue discussions between the UDWR and Service on the 

development and review of management plans and habitat restoration that 

may affect species' habitat on the WMA: This action is successful and 

ongoing. The Service's Utah Ecological Services Field Office is 

actively engaged with UDWR in the development and review of actions 

that may affect the species. The UDWR and Service meet periodically to 

implement protections identified in the Conservation Agreement.

    In summary, most of the conservation actions described in the 

Conservation Agreement have been successfully implemented and are part 

of an ongoing management strategy for conserving Deseret milkvetch. 

Potential threats from residential development, livestock grazing, and 

highway maintenance and widening are addressed by conservation actions 

on the approximately 74 percent of the species' occupied habitat that 

is owned and managed by either UDWR or UDOT. The Conservation Agreement 

will continue to be implemented through at least 2036.

    As described above, we have new information on Deseret milkvetch 

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 Summary of Factors Affecting the Species, 

below). In addition to the conservation actions identified in the 

Conservation Agreement, new opportunities for conservation of the 

species may be implemented 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 discussion, below). However, 

this future action is not a factor in our delisting determination.

    Survey results from 2017 (the most recent population estimates 

available) estimated that the total population was 88,427 juvenile and 

adult plants occurring on approximately 345 ac (140 ha) of habitat, 

which is a significant increase when compared to estimates of 5,000 to 

10,000 plants occurring on approximately 300 ac (122 ha) at the time of 

listing. The majority of Deseret milkvetch 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. All 

of the conservation actions for UDWR- and UDOT-managed habitat have 

been successfully implemented, with the exception of acquiring 

conservation easements. These measures have been effective in 

preventing impacts to the species and its habitat on State-managed 

lands. 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 Changes From the Proposed Rule



    We have made updates to our discussions of the species' population 

status (including 2017 information) and factors affecting the species, 

based on comments submitted by the public and information provided by 

peer reviewers. In addition, we now refer to the species primarily by 

its common name, rather than its scientific name, throughout this rule.



Summary of Factors Affecting the Species



    Section 4 of the Act (16 U.S.C. 1531 et seq.) 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 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. 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



[[Page 52778]]



opinion dated January 16, 2009 (M-37021).

    A species may be determined to be an endangered or threatened 

species because of 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 and 

being considered for delisting, the five-factor analysis is an 

evaluation of 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. A recovered species has had threats 

removed or reduced to the point that it no longer meets the Act's 

definitions of endangered or threatened.

    Deseret milkvetch is listed as a threatened species. For the 

purposes of this analysis, we will evaluate whether or not the 

currently listed species, Deseret milkvetch, should continue to be 

listed as a threatened species, based on the best scientific and 

commercial information available.

    We consider 20 years to be a reasonably foreseeable future within 

which reliable predictions can be made for Deseret milkvetch. 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 that occurs within the UDWR WMA.

    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 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 will attempt to determine the 

significance of the threat. 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 or should remain listed. 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 following 

analysis examines the factors currently affecting Deseret milkvetch, 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



    Deseret milkvetch 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 or land 

use and, therefore, are not discussed under Factor D, below; however, 

the Utah County Land Use 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. For 

this final rule, we also considered: (4) Mineral development, (5) 

transmission lines, and (6) climate change. Each of these stressors is 

assessed below.

Residential Development

    In our October 20, 1999, final listing rule (64 FR 56590), 

substantial human population growth and urban expansion were predicted 

in the Provo, Spanish Fork, and Weber River drainages east of the 

Wasatch Mountains. In that rule, increased residential development was 

considered a threat to the species due to the potential for loss of 

plants and habitat that results from the construction of roads, 

buildings, and associated infrastructure (e.g., utilities). However, 

counter to the predictions of the Quality Growth Efficiency Tools 

Technical Committee cited in that final listing rule, residential 

development in these areas has been very limited. 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 one house, and a barn 

that was recently built adjacent to Deseret milkvetch occupied habitat 

(Fitts 2016, pers. comm.). We are aware of only three proposed 

development properties in this area. One property has the potential for 

95 lots and is 2.8 mi (4.5 km) from the known occupied habitat of 

Deseret milkvetch. The other two developments would be single dwelling 

properties approximately four mi (6 km) and five 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 Deseret milkvetch habitat (Jorgensen 2016a, pers. 

comm.). However, the species' habitat occurs on steep upland slopes 

that are not vulnerable to potential habitat impacts from upstream 

areas. Residential development at this scale and distance from Deseret 

milkvetch population is not likely to impact the species or its habitat 

now or within the foreseeable future.

    The majority of Deseret milkvetch 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 

described,



[[Page 52779]]



approximately 230 ac (93 ha)--67 percent of total habitat for the 

species--are in a WMA owned by the UDWR that is protected from 

residential development, as discussed under Factor D, below.

    We conclude, based on the available information, that residential 

development is not a threat to Deseret milkvetch due to: (1) The 

minimal disturbance from residential development that has occurred on 

the species' habitat to date and the minimal amount of disturbance 

anticipated 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 October 20, 1999, final listing rule (64 FR 56590), 

potential widening of Highway 89 was considered a threat to plants 

growing in the highway right-of-way. Highway 89 widening would likely 

result in the loss of Deseret milkvetch plants and habitat that are 

directly adjacent to Highway 89. Regular highway maintenance activities 

include herbicide use to control weeds and could also result in the 

loss of plants and habitat within the right-of-way. 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).

    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 (Kisen 

2016, pers. comm.). This project is approximately seven mi (11 km) 

north of Birdseye and four mi (6 km) north of the nearest occurrence of 

the species. Therefore, we do not anticipate any direct or indirect 

impacts to the species. No other highway projects are currently planned 

within 20 mi (32 km) of Birdseye (Kisen 2016, pers. comm.).

    Road maintenance on Highway 89 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 it by an aerial application within 500 ft (152.5 m) of 

occupied habitat and will maintain a 100-ft (30-m) buffer for hand 

application around individual plants (UDWR et al. 2006, p. 9).

    In summary, highway widening is not anticipated within the vicinity 

of occupied Deseret milkvetch habitat. 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 Deseret milkvetch habitat during maintenance activities 

(Lewinsohn 2016, pers. comm.; UDWR et al. 2006, p. 9). Therefore, based 

on the available information, we conclude that highway widening and 

maintenance are not a threat to Deseret milkvetch.

Livestock Grazing and Trampling

    In our October 20, 1999, final listing rule (64 FR 56590), 

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 increased soil erosion. 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 WMA in 1967, livestock 

grazing occurred for more than 50 years on habitat occupied by Deseret 

milkvetch and may help to 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. 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 WMA and does not plan for any future grazing within the 

portion of the WMA that contains Deseret milkvetch habitat (Howard 

2018, pers. comm.). Avoidance of livestock grazing in the 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 Deseret milkvetch in our October 20, 1999, final listing rule 

(64 FR 56590) because grazing occurred historically over much of the 

species' habitat and we were concerned about trampling and erosion 

impacts. However, livestock grazing no longer occurs on the UDWR WMA, 

representing 67 percent of the species' habitat. Additionally, occupied 

Deseret milkvetch habitat on both private and protected lands is steep 

and rocky, with sparse forage for cattle. Consequently, minimal grazing 

impacts have been documented. We conclude, based on the available 

information, that livestock grazing and trampling are not a threat to 

Deseret milkvetch.

Mineral Development

    Impacts from mineral development were not considered in our October 

20, 1999, final listing rule (64 FR 56590). At the time the 

Conservation Agreement was signed, there was no information indicating 

that mineral development was going to occur in or near occupied Deseret 

milkvetch habitat (UDWR et al. 2006, p. 7). SITLA owns the mineral 

rights on most of the land occupied by the species, 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 2017, 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).

    In summary, mineral development was not considered a threat when 

Deseret milkvetch was listed under the Act. According to the compliance 

office of SITLA, there have been no inquiries regarding mineral 

development in this area. It is a severed estate, therefore, SITLA does 

not own the mineral rights, but would manage surface disturbance 

associated with mineral development and the area is flagged in their 

business system as being under a conservation agreement (Wallace 2017, 

pers. comm.). Therefore, based on the available information, we 

conclude that mineral development is not a threat to Deseret milkvetch.

Transmission Lines

    Impacts from transmission lines were not considered in our October 

20, 1999, final listing rule (64 FR 56590). The Mona to Bonanza high-

voltage transmission line is an existing power line near Deseret 

milkvetch habitat located at the easternmost extent of the known range 

of the species (Miller 2016,



[[Page 52780]]



pers. comm.). The TransWest Express transmission line is a planned 

power line that would use the same corridor as the existing Mona to 

Bonanza transmission line (SWCA Environmental Consultants 2015, p. 1). 

TransWest Express developers 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). 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 Deseret milkvetch 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, above). In addition, because the species can 

tolerate some levels of disturbance and plants have recolonized 

disturbed areas, any remaining development-related impacts should be 

minimal (Fitts and Fitts 2009, p. 5; Franklin 1990, p. 2).

    In summary, Deseret milkvetch 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 Deseret milkvetch.

Effects of Climate Change

    Impacts from climate change were not considered in our October 20, 

1999, final listing rule (64 FR 56590). Our current analyses for 

species classification 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.

    Estimates regarding the risk of future persistent droughts in the 

southwestern United States range from 50 to 90 percent (Ault et al. 

2013, p. 7545). 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 to 6.5 

degrees Fahrenheit ([deg]F)) (1.9 to 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 [deg]F (0.129 [deg]C) increase per 

decade; and seventh in rate of warming since 1970, with a 0.588 [deg]F 

(0.327 [deg]C) increase per decade (Tebaldi et al. 2012, pp. 3, 5).

    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). We do not have a clear 

understanding of how Deseret milkvetch responds to precipitation 

changes, although the species has persisted in spite of recent dry 

conditions. Generally, plant numbers decrease during drought years and 

recover in subsequent seasons that are less dry. For example, many 

plants of Deseret milkvetch appeared to die-off in response to the 2012 

drought, but have since repopulated the area from the seed bank (Fitts 

2016, pers. comm.). Deseret milkvetch 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). Deseret milkvetch 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.

    Deseret milkvetch 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, 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 Deseret 

milkvetch (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 Deseret milkvetch 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 Deseret milkvetch, 

like other narrow endemics, could experience future climate change-

related drought. However, the scope of any effects is mostly 

speculative at this time because current data are not reliable at the 

local level. The information we do have indicates the species and the 

genus are adapted to drought and are able to recolonize disturbed 

areas. Therefore, based upon available information, we conclude that



[[Page 52781]]



climate change is not a threat to Deseret milkvetch currently or within 

the foreseeable future.

Summary of Factor A

    The following stressors warranted consideration as possible current 

or future threats to Deseret milkvetch 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 or are being 

adequately managed, or the species is tolerant of the stressor as 

described below.

     Minimal disturbance from residential development has 

occurred on Deseret milkvetch habitat to date or 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 WMA.

     UDOT anticipates no highway widening in habitat occupied 

by Deseret milkvetch, and herbicide use and other disturbances are 

avoided in habitat for the species.

     The steep, rocky nature of Deseret milkvetch habitat and 

sparse forage availability minimize livestock grazing, and 67 percent 

of all of the species' known habitat is carefully managed by UDWR to 

restrict it from grazing.

     The lack of inquiries and severed estate status of the 

habitat occupied by Deseret milkvetch indicate that mineral development 

is not a threat.

     The existing transmission line is not a threat to Deseret 

milkvetch, and activity associated with the proposed transmission line 

occurring within the species' occupied habitat will be confined to 

existing access roads.

     Deseret milkvetch and its genus are likely adapted to 

drought related to climate change.

     Deseret milkvetch appears able to recolonize disturbed 

areas readily.

    Therefore, based on the available information, we do not consider 

there to be any threats related to the present or threatened 

destruction, modification, or curtailment of habitat or range of 

Deseret milkvetch.



B. Overutilization 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 56590; 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 related to overutilization for commercial, 

recreational, scientific, or educational purposes of Deseret milkvetch.



C. Disease or Predation



    Disease and predation were not considered threats in the final rule 

to list the species (64 FR 56590; October 20, 1999). We are not aware 

of any issues or potential stressors regarding disease or insect 

predation. As described in more detail above under Factor A, grazing--

which could be considered a form of predation--is limited in the 

species' habitat and 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 related to 

disease or predation of Deseret milkvetch.



D. The Inadequacy of Existing Regulatory Mechanisms



    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 the 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, constitution, or regulation or 

Federal action under statute or regulation.

    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 

would 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, if they exist, 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 

Deseret milkvetch's 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 other 

recreational activities. This statute authorizes the creation, 

operation, maintenance, and management of wildlife management areas 

including the Birdseye Unit of the Northwest Manti WMA. The Birdseye 

Unit contains 67 percent of all known habitat occupied by Deseret 

milkvetch. 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. Utah Administrative Code, 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 WMA. 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



[[Page 52782]]



UDWR, regardless of the species' status under the Act.

    We are not aware of any habitat occupied by Deseret milkvetch 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 

specific stressors absent protections under the Act.



E. Other Natural or Manmade Factors Affecting Its Continued Existence



Rarity

    In our October 20, 1999, final listing rule (64 FR 56590), 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. A species may be considered rare due to: 

(1) Limited geographic range, (2) occupation of specialized habitats, 

or (3) small population numbers (Primack 1998, p. 176). This species 

meets each of these qualifications.

    Deseret milkvetch 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 in 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, above, 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 October 20, 1999, final listing rule (64 FR 56590), 

stochastic events--particularly fire, drought, and disease--were 

considered a threat because of the species' small population size and 

highly restricted range. 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 Deseret milkvetch (Stone 1992, 

pp. 8-10).

    Environmental stochasticity--such as fire, drought, and disease--

may also be a threat to the species (Stone 1992, p. 10). However, we 

have concluded that fire is unlikely in the open, a sparsely wooded 

habitat that the species favors (72 FR 3379, January 25, 2007; U.S. 

Fish and Wildlife 2011, p. 21). As explained above under ``Climate 

Change'' in the Factor A discussion, the species appears to be drought 

tolerant, showing an ability to rebound the following drought and 

recolonize disturbed areas in progressively dry climates. Lastly, as 

noted above in the Factor C discussion, there is no evidence of disease 

or insect pests affecting Deseret milkvetch. Since listing in 1999, 

survey data have shown that the species' known range is somewhat larger 

and its population numbers are much higher than previously thought, 

thus indicating 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 Deseret milkvetch population 

and the robust population size, we conclude that rarity and stochastic 

events are not threats to the species.



Cumulative Effects



    Many of the stressors discussed in this analysis could work in 

concert with each other and result in a cumulative adverse effect to 

Deseret milkvetch, i.e., 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 (residential 

development, highway maintenance and widening, livestock grazing and 

trampling, mineral development, transmission lines, and climate change) 

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 final 

rule. 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 earlier in this rule. Furthermore, the increases 

documented in the abundance and distribution of the species since it 

was listed in 1999 do not support a conclusion that cumulative 

activities threaten the species.



Summary of Comments and Recommendations



    In the proposed rule published in the Federal Register on October 

2, 2017 (82 FR 45779), we requested that all interested parties submit 

written comments on the proposal by December 1, 2017. We also contacted 

appropriate Federal and State agencies, scientific experts and 

organizations, and other interested parties and invited them to comment 

on the proposal. We did not receive any requests for a public hearing. 

All substantive information provided during the comment period has 

either been incorporated directly into this final determination or is 

addressed below.



Peer Reviewer Comments



    In accordance with our peer review policy published on July 1, 1994 

(59 FR 34270) and updated guidance issued on August 22, 2016 (USFWS 

2016, entire), we solicited expert opinion from three knowledgeable 

individuals with scientific expertise that included familiarity with 

Deseret milkvetch, its habitat, its biological needs and potential 

threats, or principles of conservation biology. We received responses 

from all of the peer reviewers.

    We reviewed all comments we received from the peer reviewers for 

substantive issues and new information regarding the proposed delisting 

of Deseret milkvetch. The peer reviewers provided additional 

information, clarifications, and suggestions to improve the final rule. 

We included their information in this final rule. Two peer reviewers 

were supportive of the delisting action. The third provided only minor 

technical comments and editorial suggestions on the rule and did



[[Page 52783]]



not express an opinion regarding the action.



Public Comments



    We received 15 letters from the public (as well as one from a peer 

reviewer) that provided comments on the proposed rule. Of these, six 

commenters stated their support for the delisting of Deseret milkvetch, 

and six commenters believed that it does not warrant delisting. We also 

received three comments that were not directly related to the proposed 

action in any way and are not addressed below.

    Relevant public comments are addressed in the following summary, 

and new information was incorporated into the final rule as 

appropriate.

    (1) Comment: We received four public comments that the species 

should not be delisted based primarily on its limited range and single 

population.

    Our Response: Rarity or range restriction alone is not a basis for 

determining that a species meets the definition of ``endangered 

species'' or ``threatened species.'' Our analysis of the best 

commercial and scientific information available indicates that the 

population of Deseret milkvetch is secure. We also determined that 

despite the limited range of this species, stressors either have not 

occurred to the extent anticipated at the time of listing in 1999 or 

are being adequately managed, or the species is tolerant of the 

stressor.

    (2) Comment: We received one comment that our proposed delisting 

was premature because survey data results from 2016 were not available 

at the time of publication of the proposed rule (October 2, 2017). This 

commenter suggested that we should not base our decision on information 

that was being excluded from public access.

    Our Response: The proposed delisting was based on the best 

commercial and scientific information available at the time. We did not 

have access to 2016 survey data at the time and did not base our 

decision on it or withhold this information from the public. Partial 

surveys were conducted in 2016, and full surveys were conducted in 

2017. This rule has been updated with relevant information from both 

years. Survey results are not yet available for 2018.

    (3) Comment: We received two public comments suggesting that 

additional surveys should be conducted before the species is delisted, 

to provide more information on population status and also how stressors 

are impacting the population.

    Our Response: This final rule includes survey information from 

2017, which supports our conclusion that the species has maintained 

occupancy and a robust population. Additionally, the post-delisting 

monitoring (PDM) plan provides for a minimum of 5 years of annual 

monitoring after this rule takes effect. The PDM plan also includes 

criteria to determine whether population trends allow for completion of 

monitoring, or if additional monitoring or a status review is needed. 

We believe this will provide adequate confirmation of population 

stability in the absence of the Act's protections.

    (4) Comment: We received four public comments supporting the 

delisting of Deseret milkvetch on the basis that its listing has 

impeded human use on the land it occupies, specifically in regards to 

grazing and off-road vehicle use. These comments suggested the species 

should be delisted so that grazing and off-road vehicle use could 

increase within the habitat.

    Our Response: We may only base our determination of the status of a 

species on the best available commercial or scientific information. We 

may not consider the impact to land management or the demand for other 

uses within the species' habitat when determining whether a species is 

endangered or threatened, except insofar as to whether such uses 

represent stressors that may threaten the species. Additionally, a 

conservation agreement for this species remains in effect, and we do 

not anticipate existing regulations regarding motorized vehicle use or 

grazing in the habitat to change as a result of this delisting. If the 

human use of the habitat for recreation, grazing, or other purposes 

increase significantly in the future, a reassessment of this species' 

status may be initiated.

    (5) Comment: We received a comment stating that the lack of a 

recovery plan for the species, combined with the voluntary nature of 

the existing Conservation Agreement and the fact that only 18 years 

remain in the current agreement, means that adequate protections are 

not provided to the species in the absence of the protections of the 

Act.

    Our Response: Recovery plans provide roadmaps to species recovery, 

but are not required in order to achieve recovery of a species or to 

evaluate it for delisting. Recovery plans are also nonbinding documents 

that rely on voluntary participation from landowners, land managers, 

and other recovery partners. Additionally, we have no information to 

suggest that UDWR, SITLA, and UDOT will not continue to act in good 

faith according to the Conservation Agreement as it exists. A listing 

decision must consider actions taken by States to provide for the 

conservation of a species. Lack of continued implementation of the 

Conservation Agreement or large changes in management practices in the 

species' habitat by the State of Utah may result in reevaluation of the 

status of Deseret milkvetch.

    (6) Comment: We received one public comment stating that the 

projected development rates in Utah County are likely to negatively 

impact Deseret milkvetch habitat to the degree that would constitute a 

species-level threat; thus, delisting the species at this time is not 

appropriate.

    Our Response: We agree that residential development in Utah County 

is increasing and that the patterns of such development are not 

entirely predictable. However, we have no information to suggest that 

development within Deseret milkvetch occupied habitat on private lands 

is imminent. Furthermore, development is prohibited within the Birdseye 

Wildlife Management Unit, which represents the majority of the known 

population. For additional detail, see our threats analysis under A. 

The Present or Threatened Destruction, Modification, or Curtailment of 

Its Habitat or Range.

    (7) Comment: We received a public comment stating that we should 

not delist Deseret milkvetch due to our lack of information regarding 

the species, particularly in the areas of population biology, 

population viability, genetics, phenology, and response to stressors.

    Our Response: We utilized the best scientific and commercial 

information available for this species in our determination. We 

conclude that enough information is available for Deseret milkvetch and 

its stressors to adequately evaluate its status. Should additional 

research or post-delisting monitoring in the future provide information 

that indicates our evaluation is in error or, the species' status has 

declined since delisting, we would reevaluate the status of the species 

based on this information.



Determination of Species Status



    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 meets the definition of ``endangered 

species'' or ``threatened species.'' 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 an endangered species within the 

foreseeable future throughout all or a significant portion of its 

range.'' The Act



[[Page 52784]]



requires that we determine whether a species meets the definition of 

``endangered species'' or ``threatened species'' because of any of the 

following factors:

    (A) The present or threatened destruction, modification, or 

curtailment of its habitat or range;

    (B) Overutilization for commercial, recreational, scientific, or 

educational purposes;

    (C) Disease or predation;

    (D) The inadequacy of existing regulatory mechanisms; or

    (E) Other natural or manmade factors affecting its continued 

existence.

    The same factors apply whether we are analyzing the species' status 

throughout all of its range or a significant portion of its range.



Determination of Status Throughout All of Deseret Milkvetch's Range



    We conducted a review of the status of Deseret milkvetch and 

assessed the five factors to evaluate whether Deseret milkvetch 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 (1999) 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:

     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 the impact will not change in the future.

     Stressors including highway maintenance, livestock 

grazing, transmission lines, and mineral development are adequately 

managed through the Conservation Agreement.

     The species is tolerant of stressors including climate 

change, 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 advance notice of proposed 

rulemaking (72 FR 3379; January 25, 2007), in our 5-year review (U.S. 

Fish and Wildlife Service 2011), and in our proposed delisting rule (82 

FR 45779; October 2, 2017). Thus, after assessing the best available 

information, we conclude that Deseret milkvetch is not in danger of 

extinction throughout all of its range, nor is it likely to become so 

in the foreseeable future.

    Because we determined that Deseret milkvetch is not in danger of 

extinction or likely to become so in the foreseeable future throughout 

all of its range, we will consider whether the Deseret milkvetch is in 

danger of extinction or likely to become so in the foreseeable future 

within any significant portions of its range.



Determination of Status Throughout a Significant Portion of Deseret 

Milkvetch's Range



    Under the Act and our implementing regulations, a species may 

warrant listing if it is in danger of extinction or likely to become so 

in the foreseeable future throughout all or a significant portion of 

its range. The Act defines ``endangered species'' as any species which 

is ``in danger of extinction throughout all or a significant portion of 

its range,'' and ``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.'' The term 

``species'' includes ``any subspecies of fish or wildlife or plants, 

and any distinct population segment [DPS] of any species of vertebrate 

fish or wildlife which interbreeds when mature.'' We published a final 

policy interpreting the phrase ``significant portion of its range'' 

(SPR) (79 FR 37578; July 1, 2014). The final policy states that: (1) If 

a species is found to be an in danger of extinction or likely to become 

so in the foreseeable future throughout a significant portion of its 

range, the entire species is listed as an endangered species or a 

threatened species, respectively, and the Act's protections apply to 

all individuals of the species wherever found; (2) a portion of the 

range of a species is ``significant'' if the species is not currently 

in danger of extinction or likely to become so in the foreseeable 

future throughout all of its range, but the portion's contribution to 

the viability of the species is so important that, without the members 

in that portion, the species would be in danger of extinction, or 

likely to become so in the foreseeable future, throughout all of its 

range; (3) the range of a species is considered to be the general 

geographical area within which that species can be found at the time 

the Service or the National Marine Fisheries Service makes any 

particular status determination; and (4) if a vertebrate species is in 

danger of extinction or likely to become so in the foreseeable future 

throughout an SPR, and the population in that significant portion is a 

valid DPS, we will list the DPS rather than the entire taxonomic 

species or subspecies.

    The SPR policy is applied to all status determinations, including 

analyses for the purposes of making the listing, delisting, and 

reclassification determinations. However, we acknowledge the recent 

adverse ruling by the United States District Court for the Northern 

District of California, which has vacated the ``significant portion'' 

part of the Services' SPR Policy (Desert Survivors, et al. v. U.S. 

Department of the Interior, et al., No. 16-cv-01165-JCS (Northern 

District of California, Aug. 24, 2018)). The procedure for analyzing 

whether any portion is an SPR is similar, regardless of the type of 

status determination we are making. The first step in our analysis of 

the status of a species is to determine its status throughout all of 

its range. If we determine that the species is in danger of extinction, 

or likely to become so in the foreseeable future, throughout all of its 

range, we list the species as an endangered (or threatened) species, 

and no SPR analysis will be required.

    When we conduct an SPR 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. However, there is no purpose in analyzing portions of 

the range that are not reasonably likely to be significant and either 

in danger of extinction or likely to become so in the foreseeable 

future. To identify only those portions that 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. 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, a key part of this analysis is whether the 

threats are geographically concentrated in some way. If the threats to 

the species are



[[Page 52785]]



affecting it uniformly throughout its range, no portion is likely to 

warrant further consideration. Moreover, if any concentration of 

threats applies 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.

    If we identify any portions that may be both (1) significant and 

(2) in danger of extinction or likely to become so in the foreseeable 

future, we engage in a more detailed analysis to determine whether both 

of 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 foreseeable future in the SPR. 

To determine whether a species is in danger of extinction or likely to 

become so in the foreseeable future throughout an SPR, we will use the 

same standards and methodology that we use to determine if a species is 

in danger of extinction or likely to become so in the foreseeable 

future throughout its range.

    Depending on the biology of the species, its range, and the threats 

it faces, it may be more efficient to address the ``significant'' 

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. If we determine that the species 

is not in danger of extinction or likely to become so in the 

foreseeable future in a portion of its range, we do not need to 

determine if that portion is ``significant.''

    Applying the process described above, to identify whether any 

portions warrant further consideration for Deseret milkvetch, we 

determine whether there is substantial information indicating that (1) 

particular 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 significant, 

we consider whether any natural divisions within the range might be of 

biological or conservation importance. To identify portions where the 

species may be in danger of extinction or likely to become so in the 

foreseeable future, we consider whether the threats are geographically 

concentrated in any portion of the species' range.

    We evaluated the range of Deseret milkvetch to determine if any 

area may be a significant portion of the range. Based on the small 

range of Deseret milkvetch--approximately 345 ac (140 ha) in an area 

2.8 mi (4.5 km) by 0.3 mi (0.5 km)--we determined that the species is a 

single, contiguous population and that no separate areas of the range 

are significantly different from others or 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 no natural biological divisions are delineating 

separate portions of the Deseret milkvetch 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 no fences are 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 

is concentrated in any portion of the species' range to affect the 

representation, redundancy, or resiliency of the species.

    We did not identify any portions of the species' range that are 

likely to be both significant and in danger of extinction or likely to 

become so in the foreseeable future. Therefore, no portion warrant 

further consideration to determine whether the species is 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.



Determination of Status



    We have carefully assessed the best scientific and commercial 

information available regarding the past, present, and future threats 

to Deseret milkvetch. After review and analysis of the information 

regarding stressors as related to the five statutory factors, we find 

that the ongoing stressors are not of sufficient imminence, intensity, 

or magnitude to indicate that this species is presently in danger of 

extinction throughout all or a significant portion of its range. 

Additionally, no threats exist currently, nor are any potential 

stressors expected to rise to the level that would likely cause the 

species to become in danger of extinction in the foreseeable future, 

throughout all or a significant portion of the species' range. Because 

the species is not in danger of extinction now or the foreseeable 

future throughout all of its range or any significant portion of its 

range, it does not meet the definition of an endangered species or 

threatened species. Therefore we find that Deseret milkvetch no longer 

requires the protection of the Act, and we are removing the species 

from the List of Endangered and Threatened Plants.



Effects of the Rule



    This final rule revises 50 CFR 17.12(h) by removing Deseret 

milkvetch from the Federal List of Endangered and Threatened Plants. 

The prohibitions and conservation measures provided by the Act, 

particularly through sections 7 and 9, no longer apply to this species. 

Federal agencies will 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 Deseret milkvetch. There is no critical 

habitat designated for this species; therefore, this rule does not 

affect 50 CFR 17.96.



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 five years 

for all species that have been delisted due to recovery. The purpose of 

this requirement is to verify that a species remains secure from risk 

of extinction after it has been removed from the protection of the Act. 

The monitoring is designed to detect 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 under section 4(b)(7) of the Act. Section 4(g) of the Act 

explicitly requires us to cooperate with the States in development and 

implementation of post-delisting monitoring programs, but we remain 

responsible for compliance with section 4(g) of the Act and, therefore, 

must remain actively engaged in all phases of post-delisting 

monitoring. We also seek active participation of other entities that 

are



[[Page 52786]]



expected to assume responsibilities for the species' conservation post-

delisting.

    We are delisting Deseret milkvetch 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 the post-delisting monitoring 

(PDM) plan for Deseret milkvetch. 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 five years, beginning in 2019. 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 WMA, PDM will be extended 

for an additional 3 to 5 years and then the population status will be 

reevaluated; or (3) if the population is decreasing without correlation 

to precipitation levels, and fewer than 20,000 plants exist on the WMA, 

a formal status review will be initiated.

    A final PDM plan is available (see ADDRESSES). We will work closely 

with our partners to maintain the recovered status of Deseret milkvetch 

and ensure post-delisting monitoring is conducted and future management 

strategies are implemented (as necessary) to benefit Deseret milkvetch.



Required Determinations



National Environmental Policy Act



    We have determined that we do not need to prepare an environmental 

assessment or environmental impact statement, as defined under the 

authority of the National Environmental Policy Act of 1969 (42 U.S.C. 

4321 et seq.), 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 no tribal lands are within or adjacent 

to Deseret milkvetch habitat.



References Cited



    A complete list of all references cited in this final rule is 

available at http://www.regulations.gov under Docket No. FWS-R6-ES-

2016-0013, or upon request from the Utah Ecological Services Field 

Office (see FOR FURTHER INFORMATION CONTACT).



Authors



    The primary authors of this final rule are staff members of the 

Service's Mountain-Prairie Region and the Utah Ecological Services 

Field Office.



List of Subjects in 50 CFR Part 17



    Endangered and threatened species, Exports, Imports, Reporting and 

recordkeeping requirements, Transportation.



Regulation Promulgation



    Accordingly, we 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. Amend Sec.  17.12(h) by removing the entry for ``Astragalus 

desereticus'' under FLOWERING PLANTS from the List of Endangered and 

Threatened Plants.



    Dated: August 22, 2018.

James W. Kurth,

Deputy Director, U.S. Fish and Wildlife Service, Exercising the 

Authority of the Director, U.S. Fish and Wildlife Service.

[FR Doc. 2018-22718 Filed 10-17-18; 8:45 am]

 BILLING CODE 4333-15-P