[Federal Register Volume 85, Number 189 (Tuesday, September 29, 2020)]
[Proposed Rules]
[Pages 61460-61498]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-19337]
[[Page 61459]]
Vol. 85
Tuesday,
No. 189
September 29, 2020
Part IV
Department of the Interior
-----------------------------------------------------------------------
Fish and Wildlife Service
-----------------------------------------------------------------------
50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Threatened Species
Status for the Wright's Marsh Thistle (Cirsium wrightii) With a 4(d)
Rule and Designation of Critical Habitat; Proposed Rule
Federal Register / Vol. 85 , No. 189 / Tuesday, September 29, 2020 /
Proposed Rules
[[Page 61460]]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2018-0071; FF09E21000 FXES11110900000 201]
RIN 1018-BC34
Endangered and Threatened Wildlife and Plants; Threatened Species
Status for the Wright's Marsh Thistle (Cirsium wrightii) With a 4(d)
Rule and Designation of Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list the Wright's marsh thistle (Cirsium wrightii), a plant species
from New Mexico, as a threatened species and designate critical habitat
under the Endangered Species Act of 1973, as amended (Act). After a
review of the best available scientific and commercial information, we
find that listing the species is warranted. Accordingly, we propose to
list the Wright's marsh thistle as a threatened species with a rule
issued under section 4(d) of the Act (``4(d) rule''). If we finalize
this rule as proposed, it would add this species to the List of
Endangered and Threatened Plants and extend the Act's protections to
the species. We also propose to designate critical habitat for Wright's
marsh thistle under the Act. The proposed critical habitat totals
approximately 64.3 hectares (ha) (159 acres (ac)) in Chaves, Eddy,
Guadalupe, Otero, and Socorro Counties, New Mexico. We also announce
the availability of a draft economic analysis of the proposed
designation of critical habitat for Wright's marsh thistle.
DATES: We will accept comments received or postmarked on or before
November 30, 2020. 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 FOR FURTHER
INFORMATION CONTACT by November 13, 2020.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R2-ES-2018-0071,
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 Rule box to locate this document. You may submit a comment by
clicking on ``Comment Now!''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R2-ES-2018-0071; U.S. Fish and Wildlife Service,
MS: JAO/1N, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: For the critical habitat
designation, the coordinates or plot points or both from which the maps
are generated are included in the administrative record and are
available at the New Mexico Ecological Services website https://www.fws.gov/southwest/es/NewMexico/index.cfm and at http://www.regulations.gov under Docket No. FWS-R2-ES-2018-0071. Any
additional tools or supporting information that we may develop for the
critical habitat designation will also be available at the Service
website set out above, and may also be included in the preamble and/or
at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Shawn Sartorius, Field Supervisor, New
Mexico Ecological Services Field Office, 2105 Osuna Rd. NE,
Albuquerque, NM 87113; telephone 505-346-2525; facsimile 505-346-2542.
Persons who use a telecommunications device for the deaf (TDD) may call
the Federal Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, if a species is
determined to be an endangered or threatened species 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. Critical habitat shall be designated, to the
maximum extent prudent and determinable, for any species determined to
be an endangered or threatened species under the Act. Listing a species
as an endangered or threatened species and designations and revisions
of critical habitat can only be completed by issuing a rule.
What this document does.
Proposes to list Wright's marsh thistle as a threatened
species. Wright's marsh thistle is a candidate species for which we
have on file sufficient information on biological vulnerability and
threats to support preparation of a listing proposal, but for which
development of a listing rule has been precluded by other higher
priority listing activities. This proposed rule reassesses all
available information regarding the status of and threats to this
species.
Proposes a rule issued under section 4(d) of the Act
(``4(d) rule'') that would make it unlawful to remove and reduce to
possession the species from areas under Federal jurisdiction;
maliciously damage or destroy the species on areas under Federal
jurisdiction; or remove, cut, dig up, or damage or destroy the species
on any other area in knowing violation of any law or regulation of any
State or in the course of any violation of a State criminal trespass
law. Nothing in the proposed 4(d) rule affects in any way other
provisions of the Act, such as the designation of critical habitat
under section 4, the recovery planning provisions of section 4(f), and
the consultation requirements under section 7.
Proposes to designate critical habitat for the species on
approximately 64.3 ha (159 ac) in Chaves, Eddy, Guadalupe, Otero, and
Socorro Counties, New Mexico.
The basis for our action. Under the Act, we can determine that a
species is an endangered or threatened species based on any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined that stressors related to
Factors A and E are causing Wright's marsh thistle to be threatened.
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary) to designate critical habitat concurrent with listing to
the maximum extent prudent and determinable. Section 4(b)(2) of the Act
states that the Secretary must make the designation on the basis of the
best scientific data available and after taking into consideration the
economic impact, the impact on national security, and any other
relevant impacts of specifying any particular area as critical habitat.
Section 3(5)(A) of the Act defines critical habitat as (i) the specific
areas
[[Page 61461]]
within the geographical area occupied by the species, at the time it is
listed, on which are found those physical or biological features (I)
essential to the conservation of the species and (II) which may require
special management considerations or protections; and (ii) specific
areas outside the geographical area occupied by the species at the time
it is listed, upon a determination by the Secretary that such areas are
essential for the conservation of the species.
Peer review. In accordance with our joint policy on peer review
published in the Federal Register on July 1, 1994 (59 FR 34270), and
our August 22, 2016, memorandum updating and clarifying the role of
peer review of listing actions under the Act, we sought the expert
opinions of three appropriate and independent specialists during the
analysis of the status of the species and the creation of the SSA
report (USFWS 2017). The purpose of peer review was to ensure that our
listing determination and critical habitat designation are based on
scientifically sound data, assumptions, and analyses. The peer
reviewers have expertise in Wright's marsh thistle's biology, life
history, habitat, and range, and in the physical or biological features
of its habitat. One of three peer reviewers provided comments on the
species status assessment, which were integrated into the SSA report;
these comments will be available along with other public comments in
the docket for this proposed rule (see http://www.regulations.gov,
Docket No. FWS-R2-ES-2018-0071).
Because we will consider all comments and information we receive
during the comment period on this proposed rule, our final
determinations may differ from this proposal. Based on the new
information we receive (and any comments on that new information), we
may conclude that the species is endangered instead of threatened, or
we may conclude that the species does not warrant listing as either an
endangered species or a threatened species. Such final decisions would
be a logical outgrowth of this proposal, as long as we: (1) Base the
decisions on the best scientific and commercial data available after
considering all of the relevant factors; (2) do not rely on factors
Congress has not intended us to consider; and (3) articulate a rational
connection between the facts found and the conclusions made, including
why we changed our conclusion.
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other concerned governmental agencies,
Native American tribes, the scientific community, industry, or any
other interested parties concerning this proposed rule. We particularly
seek comments concerning:
(1) Wright's marsh thistle's biology, range, and population trends,
including:
(a) Biological or ecological requirements of the species, including
habitat requirements for all life cycle stages, seed production and
dispersal, and seed germination and growth;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns;
(d) Historical and current population levels, and current and
projected trends; and
(e) Past and ongoing conservation measures for the species, its
habitat, or both.
(2) Factors that may affect the continued existence of the species,
which may include habitat modification or destruction, overutilization,
disease, predation, the inadequacy of existing regulatory mechanisms,
or other natural or manmade factors.
(3) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species and existing regulations
that may be addressing those threats.
(4) Additional information concerning the historical and current
status, range, distribution, and population size of this species,
including the locations of any additional populations of this species.
(5) Information on regulations that are necessary and advisable to
provide for the conservation of the Wright's marsh thistle and that the
Service can consider in developing a 4(d) rule for the species. In
particular, information concerning the extent to which we should
include any of the section 9 prohibitions in the 4(d) rule or whether
any other forms of take should be excepted from the prohibitions in the
4(d) rule.
(6) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including information to inform the following factors such that
a designation of critical habitat may be determined to be not prudent:
(a) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(b) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(c) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States;
(d) No areas meet the definition of critical habitat.
(7) Specific information on:
(a) The amount and distribution of Wright's marsh thistle habitat;
(b) What areas, that were occupied at the time of listing and that
contain the physical or biological features essential to the
conservation of the species, should be included in the critical habitat
designation and why;
(c) Special management considerations or protections that may be
needed in the critical habitat areas we are proposing, including
managing for the potential effects of climate change; and
(d) What areas not occupied at the time of listing that are
essential for the conservation of the species. We particularly seek
comments:
(i) Regarding whether occupied areas are inadequate for the
conservation of the species; and,
(ii) Providing specific information that supports the determination
that unoccupied areas will, with reasonable certainty, contribute to
the conservation of the species and, contain at least one physical or
biological feature essential to the conservation of the species.
(8) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(9) Any probable economic, national security, or other relevant
impacts of designating any area as critical habitat that may be
included in the final designation, and the related benefits of
including or excluding areas.
(10) Information on the extent to which the description of probable
economic impacts in the draft economic analysis is a reasonable
estimate of the likely economic impacts.
(11) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act.
(12) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for
[[Page 61462]]
greater public participation and understanding, or to better
accommodate public concerns and comments.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) of the Act directs that
determinations as to whether any species is an endangered or a
threatened species must be made ``solely on the basis of the best
scientific and commercial data available.''
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via http://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on http://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov.
Public Hearing
Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and local newspapers at least 15 days before the
hearing. For the immediate future, we will provide these public
hearings using webinars that will be announced on the Service's
website, in addition to the Federal Register. The use of these virtual
public hearings is consistent with our regulation at 50 CFR
424.16(c)(3).
Previous Federal Actions
On October 15, 2008, we received a petition from WildEarth
Guardians requesting that we list Wright's marsh thistle as an
endangered or threatened species under the Act. Additionally, the
petitioner requested that critical habitat be designated concurrent
with the listing of Wright's marsh thistle (thistle). On September 10,
2009, we published a 90-day finding in the Federal Register (74 FR
46542) that the petition presented substantial information that listing
Wright's marsh thistle may be warranted. The 90-day finding stated that
the petition provided substantial information indicating that listing
Wright's marsh thistle may be warranted. At that time, we initiated a
status review of the species.
On February 11, 2010, WildEarth Guardians filed suit against the
Service for failure to issue a 12-month finding on the petition
(WildEarth Guardians v. Salazar, No. 10-cv-00122 BRB-DJS (D.N.M.)).
Under a stipulated settlement agreement, the 12-month finding was due
to the Federal Register by October 31, 2010. On November 4, 2010, after
review of all available scientific and commercial information, we
published a 12-month petition finding (75 FR 67925), in which we found
that listing Wright's marsh thistle as endangered or threatened
throughout its range is warranted, but that listing of the thistle was
precluded by higher priority actions to amend the Lists of Endangered
and Threatened Wildlife and Plants. As a result of the 12-month
finding, we added Wright's marsh thistle to our candidate species list,
with a listing priority number of 8, indicating that the thistle faced
imminent threats that were of moderate magnitude. Thereafter, we
reassessed the status of the species annually and determined that
listing the thistle remained warranted but was precluded by higher
priority activities under the Act (see 77 FR 69994, November 21, 2012;
78 FR 70104, November 22, 2013; 79 FR 72450, December 5, 2014; 80 FR
80584, December 24, 2015; 81 FR 87246, December 2, 2016).
Supporting Documents
A species status assessment (SSA) team prepared an SSA report for
the Wright's marsh thistle. The SSA team was composed of Service
biologists, in consultation with other species experts. The SSA report
represents a compilation of the best scientific and commercial data
available concerning the status of the species, including the impacts
of past, present, and future factors (both negative and beneficial)
affecting the species. The Service sent the SSA report to 3 independent
peer reviewers and received 1 response.
I. Proposed Listing Determination
Background
Species Description
Wright's marsh thistle (Gray 1853, p. 101), a member of the
Asteraceae (sunflower) family, produces a 0.9- to 2.4-meter (m) (3- to
8-foot (ft)) single stalk covered with succulent leaves. There are two
regional varieties of this species. The more eastern populations in the
Pecos River valley of New Mexico have pink flowers and dark green
foliage with higher plant height, while the more western and southern
populations in New Mexico (and the previous populations in Arizona and
Mexico) have white or pale pink flowers and pale green foliage
(Sivinski 2011, pp. 27-28). The differences serve as evidence of
ecological adaptability within the species, and we believe these
differences represent genetic diversity between the eastern and western
populations.
Life History
Depending on local environmental conditions, Wright's marsh thistle
can display life-history traits of a biennial (a plant completing
development in 2 years, flowering in its second year) or a weak
monocarpic perennial (a plant that flowers, sets seed, and then dies).
Cross pollination is achieved by insect pollinators, primarily bees.
Like other species in the genus Cirsium, Wright's marsh thistle
produces numerous seeds per flowering plant. After germination,
seedlings develop into an intermediate rosette form for most of a year
or longer before bolting (producing a stem) and growing into the
mature, flowering plant. It does not reproduce vegetatively (asexually
from parent plant). In order to progress through its life cycle, the
thistle requires adequate soil alkalinity, water availability for
permanent root saturation, and access to full sunlight. Specifically,
seeds require water-saturated soils and access to fairly direct
sunlight for germination. Rosettes also require water-saturated soils
and access to fairly direct sunlight in order to grow into a mature
plant. Mature plants must also maintain permanent root saturation via
water-saturated soils and tend to thrive better in full sunlight. For
more details of the biology and life history of Wright's marsh thistle,
please refer to chapter 2 of the SSA report (USFWS 2017).
[[Page 61463]]
Habitat and Distribution
Wright's marsh thistle is a rare wetland species that grows in
marshy habitats with year-round, water-saturated soils, at elevations
between 1,150 and 2,390 m (3,450 and 7,850 ft) in elevation (Sivinski
1996, p. 1; 2005, pp. 3-4). Wright's marsh thistle is an obligate of
seeps, springs, and wetlands that have saturated soils with surface or
subsurface water flow (Sivinski 1996, p. 1; USFWS 1998, p. 2;
Worthington 2002, p. 2; NMRPTC 2009, p. 1). Within those spring and
seep areas, it is usually associated with alkaline soils (Sivinski
2005, p. 3).
Historical Range
Wright's marsh thistle was historically known to occur in Arizona
and New Mexico in the United States, and Chihuahua and Sonora in Mexico
(Sivinski 2012, p. 2). The single location in Arizona was a historical
1851 collection from San Bernardino Cienega, which straddles the
international border with Mexico, and no longer has suitable wetland
habitat on the Arizona side of the border (Baker 2011, p. 7). There
were 10 historical occurrences in New Mexico; however, in a recent
search effort at one of the sites (Lake County), the thistle was not
found (Sivinski 2011, p. 40), and another of the 10 records
(Rattlesnake Springs, Eddy County) is now thought to be a hybrid
between Wright's marsh thistle and the Texas thistle (C. texanum)
(NMRPTC 2009, p. 2). Reports of Wright's marsh thistle from Texas were
common (Keil 2006, p. 131; Sivinski 1996, pp. 2-4), but in subsequent
examinations of Texas specimens purporting to be Wright's marsh
thistle, the specimens were found to be Texas thistle or other Cirsium
species (75 FR 67928; November 4, 2010).
The status of the Wright's marsh thistle in Mexico is presumed
extirpated. There have been few verified historical collections, and
the most recent site visit to Fronteras, Mexico, and Cerro Angostura,
Mexico, indicated that the habitat had been mostly dried out and is no
longer suitable (Sivinski 2017, entire).
Therefore, Wright's marsh thistle has been extirpated from all
previously known locations in Arizona, two historical locations in New
Mexico, and all known locations in Mexico, and it was misidentified and
likely not ever present in Texas.
Current Range
In New Mexico, eight general confirmed locations of Wright's marsh
thistle cover an area of approximately 43 ha (106 ac): Santa Rosa, in
Guadalupe County; Bitter Lake National Wildlife Refuge (NWR), in Chaves
County; Blue Spring, in Eddy County; La Luz Canyon, Karr/Haynes Canyon,
Silver Springs, and Tularosa Creek, in Otero County; and Alamosa Creek,
in Socorro County (Bridge 2001, p. 1; Sivinski and Bleakly 2004, p. 2;
NMRPTC 2009, p. 1; Sivinski 1994, p. 1; Sivinski 1996, p. 2; Sivinski
2005, p. 1, 3-5; Sivinski 2009; USFWS 1998, p. 1; Worthington 2002, p.
1-3). In Otero County, the Sacramento Mountains have four unique
populations of the species clustered within about 16 kilometers (km)
(10 miles (mi)) of each other on the west slope of the mountains. The
remaining four localities are widely disjunct, separated from the
Sacramento localities by about 120 to 225 km (75 to 140 mi) and from
each other by about 120 to 345 km (75 to 215 mi). In the Sacramento
Mountains, two of these four localities occur on the Lincoln National
Forest, one locality is on private land, and the remaining locality is
on the Mescalero Apache Reservation. In the Pecos River Valley, one
locality is on public lands on Bitter Lake NWR; one is on private land
near Blue Springs and the Black River; and one is in the vicinity of
Santa Rosa on private, municipal, and State lands. The remaining
locality is on private land on Alamosa Creek, Socorro County.
Localities vary in relative population size from fewer than 20
individuals covering only about 0.02 ha (0.03 ac) at the Silver Springs
locality (Sivinski 2012, p. 21), to several thousand individuals on
Bitter Lake NWR, covering almost 9.3 ha (23 ac).
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species is an ``endangered species'' or a ``threatened
species.'' The Act defines an endangered species as a species that is
``in danger of extinction throughout all or a significant portion of
its range,'' and a threatened species as a species that is ``likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range.'' The Act requires that we
determine whether any species is an ``endangered species'' or a
``threatened species'' because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the expected response by the species,
and the effects of the threats--in light of those actions and
conditions that will ameliorate the threats--on an individual,
population, and species level. We evaluate each threat and its expected
effects on the species, then analyze the cumulative effect of all of
the threats on the species as a whole. We also consider the cumulative
effect of the threats in light of those actions and conditions that
will have positive effects on the species, such as any existing
regulatory mechanisms or conservation efforts. The Secretary determines
whether the species meets the definition of an ``endangered species''
or a ``threatened species'' only after conducting this cumulative
analysis and describing the expected effect on the species now and in
the foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable
[[Page 61464]]
future on a case-by-case basis. The term ``foreseeable future'' extends
only so far into the future as the Services can reasonably determine
that both the future threats and the species' responses to those
threats are likely. In other words, the foreseeable future is the
period of time in which we can make reliable predictions. ``Reliable''
does not mean ``certain''; it means sufficient to provide a reasonable
degree of confidence in the prediction. Thus, a prediction is reliable
if it is reasonable to depend on it when making decisions.
It is not always possible or necessary to define foreseeable future
as a particular number of years. Analysis of the foreseeable future
uses the best scientific and commercial data available and should
consider the timeframes applicable to the relevant threats and to the
species' likely responses to those threats in view of its life-history
characteristics. Data that are typically relevant to assessing the
species' biological response include species-specific factors such as
lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
Analytical Framework
The SSA report for Wright's marsh thistle (USFWS 2017) documents
the results of our comprehensive biological status review for the
species, including an assessment of the potential threats to the
species. The SSA report does not represent a decision by the Service on
whether the species should be proposed for listing as an endangered or
threatened species under the Act. It does, however, provide the
scientific basis that informs our regulatory decisions, which involves
the further application of standards within the Act and its
implementing regulations and policies.
To assess Wright's marsh thistle viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency supports the ability of the species to withstand
environmental and demographic stochasticity (for example, wet or dry,
warm or cold years), redundancy supports the ability of the species to
withstand catastrophic events (for example, droughts, large pollution
events), and representation supports the ability of the species to
adapt over time to long-term changes in the environment (for example,
climate changes). In general, the more resilient and redundant a
species is and the more representation it has, the more likely it is to
sustain populations over time, even under changing environmental
conditions. Using these principles, we identified the species'
ecological requirements for survival and reproduction at the
individual, population, and species levels, and described the
beneficial and risk factors influencing the species' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. This process used the best
available information to characterize viability as the ability of a
species to sustain populations in the wild over time. We use this
information to inform our regulatory decision.
Summary of Biological Status and Threats
In this discussion, we review the biological condition of the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability.
To determine the species' current condition, we ranked each
population based on six factors relating to population and habitat
variables including habitat quantity, number of patches, abundance,
reproduction, permanent root saturation, and full sun. For each of
these six factors, we defined criteria for low, moderate, and high
conditions, which are outlined in table 3.3 in chapter 3 of the SSA
report. These criteria were used to determine an overall condition for
each of the eight extant populations (USFWS 2017). The overall
condition of a population refers to the likelihood of persistence over
time. We expect a population in high overall condition to have a
greater than 90 percent likelihood of persistence over the foreseeable
future (in other words a 10 percent or less likelihood of extirpation).
For a population in moderate condition, we estimate that the likelihood
of persistence over the foreseeable future would be approximately 66 to
90 percent (10 to 33 percent likelihood of extirpation). For a
population in low condition, we estimated a likelihood of persistence
of approximately 25 to 66 percent over the foreseeable future (33 to 75
percent likelihood of extirpation) and a population in very low
condition to have a likelihood of persistence of approximately 0 to 25
percent over the foreseeable future (75 to 100 percent likelihood of
extirpation).
For Wright's marsh thistle to maintain viability, its populations
or some portion thereof must be able to withstand stochastic
disturbance. Resource needs that influence the resiliency of
populations include constant soil saturation, alkaline soils, abundance
of insect pollinators, and availability of direct sunlight.
Additionally, secondary resource needs include agents of seed dispersal
(wind, water, mammals, and birds), and water availability for seed
germination. For more details on these resource needs and their impact
on species viability, refer to chapter 2 of the SSA report (USFWS
2017). Factors that influence those resource needs will determine
whether Wright's marsh thistle populations are able to sustain adequate
numbers within habitat patches of adequate area and quality to maintain
survival and reproduction in spite of disturbance, thereby increasing
the resiliency of populations.
Maintaining representation in the form of genetic or environmental
diversity is important to maintain Wright's marsh thistle's capacity to
adapt to future environmental changes. A healthy community of insect
pollinators, particularly bees and butterflies, leads to genetic
diversity by the process of cross pollination between patches within a
population. The differences in flower color (and perhaps differences in
mature plant maximum growth height) represent differences in ecological
adaptability between the eastern and western populations of the
thistle, which may also represent a form of genetic diversity. There is
a need to maintain the genetic and environmental diversity between the
eastern and western groups, as their potential genetic and life-history
attributes may buffer the thistle's response to environmental changes
over time. Wright's marsh thistle has likely lost genetic and
environmental diversity as populations have been reduced or extirpated.
As such, maintaining the remaining representation in the form of
genetic and environmental diversity may be important to the capacity of
Wright's marsh thistle to adapt to future environmental change.
Wright's marsh thistle needs to have multiple resilient populations
distributed throughout its range to provide for redundancy. The more
populations, and the wider the distribution of those populations, the
more redundancy the species will exhibit. In addition, populations of
the
[[Page 61465]]
species can exhibit internal redundancy through the presence of
multiple patches within the population. For example, the eastern
populations of Wright's marsh thistle have multiple patches of occupied
habitat within each population location, while the western populations
typically have only one patch. The presence of multiple patches
contributes to the ability of the population to maintain resiliency
when faced with various risk factors. Redundancy reduces the risk that
a large portion of the species' range will be negatively affected by a
catastrophic natural or anthropogenic event at a given point in time.
Species that are well-distributed across their historical range are
considered less susceptible to extinction and have higher viability
than species confined to a small portion of their range (Carroll et al.
2010, entire; Redford et al. 2011, entire).
Current Condition of Wright's Marsh Thistle
As stated above, the best available information indicates that
Wright's marsh thistle is currently only found in eight localities in
New Mexico. We believe the plant has been extirpated in Arizona,
Mexico, and two locations in New Mexico, and never occurred in Texas.
According to our current condition rankings outlined in chapter 3 of
the SSA report, of the eight extant populations in New Mexico, three
have been determined to have moderate resiliency, two have low
resiliency, and three have very low resiliency and are at risk of
extirpation. We consider the thistle to have representation in the form
of genetic and environmental diversity resulting in two distinct
phenotypes in the eastern and western populations, as described above.
Within the two representation areas (east and west), three populations
are extant in the east, and five populations are extant in the west.
While there is greater redundancy in terms of number of populations in
the western phenotype, the five extant populations in the western
representation are much smaller in both the area occupied and
population size. Therefore, the western populations are less resilient.
This circumstance impacts the overall viability of the species by
reducing the overall resiliency of the thistle to stochastic events.
Influence Factors for Wright's Marsh Thistle
The largest threats to the future viability of Wright's marsh
thistle relate to habitat degradation from various stressors
influencing the availability of the thistle's resource needs (e.g.,
water availability). A brief summary of these primary stressors is
presented below, followed by a table identifying the particular
stressors, and the magnitude of those stressors, affecting each of the
eight populations (Table 1). We also include a discussion of current
conservation measures for the thistle and any existing regulatory
mechanisms that may ameliorate or reduce the impact of the stressors.
For a full description of these stressors, refer to chapter 4 of the
SSA report (USFWS 2017).
Decreased Water Availability
The drying of Wright's marsh thistle habitat over approximately the
last 25 years has led to shrinking population boundaries, a reduction
in the numbers of plants, and, in some cases, a loss of all individuals
at several localities (Sivinski 1996; Sivinski 2005, pp. 3-4; Sivinski
2012). Because the thistle occurs only in areas that are water-
saturated, populations have a high potential for extirpation when the
habitat dries up. Loss of water from Wright's marsh thistle habitat
occurs through changing precipitation patterns or drought, or as a
result of human impacts from groundwater pumping (withdrawal) or
diversion of surface water, which can lead to the degradation and
extirpation of the species' habitat (Sivinski 1996, p. 5; Sivinski
2005, p. 1; USFS 2008, p. 19). In addition to experiencing periods of
drought, much of the habitat of Wright's marsh thistle has been and
continues to be severely altered and degraded because of past and
present land and water management practices that have led to ground and
surface water depletion. For specific examples for each population,
please refer to chapter 4, section 1 of the SSA report (USFWS 2017).
All of the extant localities may be affected by long-term drought,
whereas four of the largest localities at Blue Spring, Bitter Lake NWR,
Santa Rosa, and Alamosa Creek have the potential to be further modified
by ongoing and future water management practices. Drought, along with
ground and surface water depletion, serve to decrease the amount of
water available in Wright's marsh thistle habitat, which impacts the
species' need for permanent root saturation. Reductions in
precipitation and temperature are predicted, which suggests that these
impacts will increase in the future, leading to further impacts to the
thistle (NOAA 2017).
Decreased Water Availability: Drought
According to the United States Drought Monitor (2017), large
portions (over 30 percent) of New Mexico, including Wright's marsh
thistle habitat, experienced drought from approximately April 2011
until mid-2014. Within New Mexico, monsoonal summer precipitation can
be very patchy, with some areas receiving considerably less rainfall
than others. Newton et al. (2012) provides information on drought
conditions in the range of the species, specifically in the Pecos River
valley and Sacramento Mountains. The three eastern populations of
Wright's marsh thistle in the Pecos River valley have not been affected
by drought to the same extent as the western populations, because the
Pecos River valley's marshy habitats are maintained by large regional
aquifers. The western populations often rely on wet periods during
summer months to recharge the ground water. In the Sacramento
Mountains, because these wet periods are extremely rare events (Newton
et al. 2012, p. 66), drought has notably impacted the area's
groundwater tables (USFS 2008, p. 22). For this reason, the seasonal
distribution of yearly precipitation can result in temporary drought
conditions and reduced water availability for some Wright's marsh
thistle localities within this mountain range.
Wright's marsh thistle is vulnerable to reduced water availability
because the species occupies relatively small areas of spring or seep
habitat in an arid region that is plagued by drought and ongoing
aquifer withdrawals (e.g., in the Roswell Basin). If future episodes of
drought increase in frequency, duration, or intensity, additional
dewatering and decrease of the thistle's habitat are likely to occur.
Projected increases in temperature and increased variability in
precipitation in locations where Wright's marsh thistle is currently
located demonstrate the vulnerability of the habitat to reductions in
water availability. The vulnerability of the habitat to increased
drought depends, in large part, on the sources of their water supply.
Habitats that are sustained mainly by precipitation in the Sacramento
Mountains (five populations) are the most likely to be affected by
increased drought, making drought a significant stressor to these
populations. Alternatively, localities that are supplied primarily by
groundwater in the Pecos River Basin (three populations) will likely
have the greatest resistance to increased drought due to water stored
in aquifers, making drought a slightly less significant stressor to the
populations (e.g., see Poff et al. 2002, pp. 18-19).
[[Page 61466]]
Decreased Water Availability: Ground and Surface Water Depletion
Wright's marsh thistle is a wetland plant that can be extirpated
when its habitat dries out. The effects of ongoing and past maintenance
and operation of existing water diversions can also limit the size of
thistle populations (USACE 2007, p. 29). Sivinski (1994, pp. 1-2; 1996,
p. 4; 2005, p. 1; 2006, p. 4) reported loss and degradation of habitat
from water diversion or draining of wetlands that historically
supported Wright's marsh thistle in Chaves, Otero, and Sierra Counties,
New Mexico. The extent of ongoing and future water diversions is
related to the extent of urban and agricultural development within a
given area. Thus, the significance of the impacts of this stressor to
each population can be correlated to the number of water diversions
within the area for both urban and agricultural purposes. Specific
details on impacts to each population can be found in chapter 4 of the
SSA report (USFWS 2017). The alteration and loss of habitat that
currently supports Wright's marsh thistle, due to groundwater and
surface water depletion, will continue and likely increase in the
foreseeable future. This projection is based on current and future
development plans in areas surrounding each population; specific
details are located in chapter 4 of the SSA report (USFWS 2017).
Decreased Water Availability: Effects of Climate Change
Because Wright's marsh thistle occupies relatively small areas of
spring or seep habitat in an arid region plagued by drought and ongoing
aquifer withdrawals (e.g., in the Roswell Basin), it is expected to be
vulnerable to changes in climate that decrease the availability of
water to suitable habitat. Springs and wet valleys have been affected
by drought in at least three canyons of the Sacramento Mountains, New
Mexico, resulting in reduced population sizes. Similar water loss may
occur within other Wright's marsh thistle localities (USFWS 2017). If
changes in climate lead to future drought, additional dewatering and
reduction of habitat for the thistle may occur.
Downscaled projections as of 2018 were available for our analysis
of Wright's marsh thistle from the Climate Explorer program in the U.S.
Climate Resilience Toolkit (NOAA 2017). The Climate Explorer is based
on 32 models and produces a mean which can be used to predict changes
in air temperature and precipitation for counties, cities or specific
zip codes in the contiguous United States and portions of Canada and
Mexico. Scenario RCP 4.5 is a moderate emissions scenario for
atmospheric concentrations of greenhouse gases. Based on climate change
projections for emissions at RCP 4.5, all locations where Wright's
marsh thistle is currently located show increases in mean daily maximum
temperature over the next 50 years by approximately 1.7 degrees Celsius
([deg]C) (3 degrees Fahrenheit ([deg]F)). For example, in Chaves
County, New Mexico, mean daily maximum temperature is expected to rise
from approximately 24.7 [deg]C (76.5 [deg]F) in 2010, to approximately
26.9 [deg]C (80.5 [deg]F) in 2060. Climate change scenario RCP 8.5
projects climate conditions based on higher CO2 emissions.
This scenario results in a projected change of approximately 3 [deg]C
(5.5 [deg]F) over the next 50 years in Chaves County, New Mexico
leading to a mean daily maximum of 28.2 [deg]C (82.7 [deg]F).
While mean daily precipitation is not expected to vary drastically
over the next 50 years, the variability in precipitation throughout the
year will increase. For example, in Otero County, mean daily average
precipitation is projected to decrease during certain times of the year
and increase during other times of the year relative to current
conditions. In addition, the timing of maximum precipitation events may
occur during different months than experienced in the past. This
variability in precipitation will contribute to more periods of extreme
drought and severe flooding events, which may impact the availability
of water during times critical to life-history traits of Wright's marsh
thistle (NOAA 2017).
Specific details on the effects of climate change are located in
chapter 4 of the SSA report (USFWS 2017). Projected increases in
temperature and increased variability in precipitation in locations
where Wright's marsh thistle is currently located demonstrate the
vulnerability of the species' habitat to changes in climate that will
exacerbate the impact of existing stressors relating to availability of
water and the extent of current and ongoing water withdrawals.
Decreased Water Availability: Summary
In summary, ground and surface water withdrawal and potential
future increases in the frequency, duration, or intensity of drought,
individually and in combination, pose a threat to Wright's marsh
thistle and its habitat in the future. In addition, as Wright's marsh
thistle has small, isolated populations, we expect the stressor of
decreased water availability to further impact the species' overall
viability. Thus, we expect that this threat will likely remain a
significant stressor to the thistle and will likely intensify in the
foreseeable future.
Livestock Grazing
In the semi-arid southwestern United States, wet marshes and other
habitat of Wright's marsh thistle attract ungulates (e.g., livestock,
elk, and deer) because of the availability of water and high-quality
forage (Hendrickson and Minckley 1984, p. 134). Livestock grazing is
present at localities in the Sacramento Mountains, Santa Rosa, Blue
Springs, and Alamosa Springs. At the Santa Rosa locality, photographs
indicate that the growth of Wright's marsh thistle and the integrity of
its habitat have been negatively affected by livestock herbivory and
trampling (Sivinski 2012 pp. 33-53). Dry periods likely increase the
effects of livestock trampling and herbivory on Wright's marsh thistle
when other water and forage plants are not available (75 FR 67925).
Grazing may be more concentrated within habitats similar to those
occupied by Wright's marsh thistle during drought years, when livestock
are prone to congregate in wetland habitats or where forage production
is greater than in adjacent dry uplands (USFS 2003, entire). Livestock
may trample individual plants and eat the thistle when other green
forage is scarce, and when the seedlings or rosettes are developing and
abundant. Further, livestock may eat mature plant inflorescences (the
complete flower head), which could reduce seed production. For example,
the threatened Sacramento Mountains thistle (C. vinaceum) (52 FR
22933), which is also found in New Mexico and associated with habitats
similar to those occupied by Wright's marsh thistle, is eaten by
livestock and appears to be the preferred forage at some times of the
year. It may provide some of the only green forage during droughts
(NMRPTC 2009, p. 2). Also, it is possible that livestock grazing within
and adjacent to spring ecosystems could alter or remove habitat or
limit the distribution of the thistle (USFWS 2017).
Effects of grazing on Wright's marsh thistle depend on timing;
winter grazing (after seed dispersal and before seedling growth in
spring) probably has a low effect on survival and reproduction,
although there could be some trampling of rosettes. On the other hand,
spring and early summer grazing probably reduces growth, survival, and
reproduction. Late summer and early fall grazing is most severe, as
flowering plants typically set seed at this time;
[[Page 61467]]
therefore, grazing during this period would inhibit reproduction.
Finally, if a patch of Wright's marsh thistle was heavily grazed during
the time of bolting or flowering over 2 or more consecutive years, the
seed bank and long-term population trend in the affected patch could be
negatively impacted. For example, observations of the impacts of
grazing at some of the Wright's marsh thistle localities show that
fewer thistles mature into flowering adults when the population
experiences grazing pressure (Sivinski 2012 pp. 33-53). Livestock
activities are considered a widespread stressor at the current time;
localized impacts have been observed and there is a high potential for
effects to populations. Increased use of wet springs and marshes by
livestock during drought conditions constitutes a significant stressor
in the future.
In summary, we find that livestock grazing poses a current and
future threat to Wright's marsh thistle and its habitat through direct
mortality and habitat degradation, and we expect that this threat will
likely intensify at some localities (Sacramento Mountains, Santa Rosa,
Blue Spring, Alamosa Springs) due to projected increases in drought
periods that cause livestock to concentrate around Wright's marsh
thistle localities. Because the thistle only occurs in small, isolated
populations, the impacts of grazing could be a significant stressor to
the species.
Native and Nonnative Plants
Some native and nonnative plants pose a threat to Wright's marsh
thistle and its habitat through habitat encroachment and competition
for resources at most localities. The native plants include cattails
(Typha spp.); nonnative species include the common reed (Phragmites
australis), purple loosestrife (Lythrum salicaria), Russian olive
(Elaeagnus angustifolia), saltcedar (Tamarix spp.), and Russian thistle
(Salsola spp.) (Sivinski 1996, p. 6). These particular native and
nonnative species all have the same effect on Wright's marsh thistle by
functioning as invasive species with respect to the thistle's habitat.
Though cattails and Wright's marsh thistle may have evolved in the same
area, decreased water availability has altered habitat conditions such
that cattails have a competitive advantage in Wright's marsh thistle
habitat. These plants present unique challenges and potential threats
to the habitat, including shade effects on Wright's marsh thistle
seedlings and rosettes.
For example, the common reed, a nonnative invasive plant introduced
from Europe and Asia, increases the potential for wildfire and is
increasing in density at some locations in New Mexico. The dense plant
growth blocks sunlight to other plants growing in the immediate area
and occupies all available habitat (PCA 2005, p. 1). The increase of
the common reed in Wright's marsh thistle habitat is a current threat
to the species through increased wildfire risk, competition, and
changes in hydrology (impacts on degree of soil saturation), especially
when habitat is disturbed through burning or drying. The impacts vary
based on location, with the greatest impacts occurring at Santa Rosa,
Bitter Lake NWR, Blue Spring, and Tularosa Creek.
We expect that the threats caused by native and nonnative plant
competition and habitat loss will likely continue and possibly
intensify, due to lack of vegetation management practices at several
locations (Santa Rosa, Blue Spring, Tularosa Creek) and the
pervasiveness of native and nonnative plants despite ongoing efforts
for habitat restoration at other locations (Bitter Lake NWR). As this
species is comprised of small, isolated populations, the impacts of
native and nonnative plants could pose a significant stressor to the
thistle. Attempts to manage native and nonnative plants through
herbicide use and mowing may also exacerbate effects to Wright's marsh
thistle as these techniques are difficult to preferentially apply to
only the native and nonnative plant species when habitat is shared. In
addition, we expect increases in drought periods to exacerbate the
effects of this stressor.
Oil and Gas Development and Mining
Oil and gas development occurs within and adjacent (i.e., within 10
miles) of some areas occupied by Wright's marsh thistle including Santa
Rosa, Bitter Lake NWR, and Blue Spring (New Mexico State Lands Office,
2017; NMDGF 2007, pp. 18-19; NMDGF 2005, p. 35). There are also mining
activities adjacent (i.e., within 5 miles) to other areas such as a
potential beryllium mine at Alamosa Springs, and subsurface drilling
and exploration of the mineral bertrandite on Sullivan Ranch near
Alamosa Springs (New Mexico Mining and Minerals Division 2010; New
Mexico State Lands Office, 2017; Sivinski 2012, p. 9). As of February
2020, the Service has no information on any new actions towards
developing the potential beryllium mine at Alamosa Springs. The main
impacts from oil and gas development and mining include the potential
for contamination. Contamination from oil and gas development has been
observed within close proximity (i.e., within 16 km (10 mi) of some
Wright's marsh thistle localities (New Mexico State Lands Office,
2017). While laws and regulations related to water quality have reduced
the risk of contamination in and near occupied locations from oil and
gas production, the likelihood that a spill could impact these habitats
is still present based on the high volume of oil and gas leases near
these areas.
Potential contamination from both oil and gas development and
mining could have several impacts on plants (such as Wright's marsh
thistle), including the following: increased available nutrients, which
may favor competitive or nonnative plant growth; altered soil pH
(either higher or lower), which can kill plants; absorption of
chemicals, which can poison plants or cause poor growth or dead spots
on leaves; and plant mortality. In addition, oil and other contaminants
from development and drilling activities throughout these areas could
enter the aquifer supplying the springs and seeps inhabited by Wright's
marsh thistle when the limestone layers are pierced by drilling
activities. An accidental oil spill or groundwater contamination has
the potential to pollute water sources that support Wright's marsh
thistle, and mining activities could alter or destroy habitat.
The largest occupied habitat area is less than 16 ha (40 ac), and
more than half the known populations are less than 2 ha (5 ac) in size.
Even a small, localized spill has the potential to contaminate and
destroy a population. The loss of even one of the eight populations
would result in loss of representation and redundancy to the species as
a whole. Because this species is comprised of small, isolated
populations, these stressors could potentially negatively affect the
thistle, but it is unclear whether these impacts would be localized or
widespread stressors as the interaction between contaminant spills and
groundwater and surface water hydrology is poorly understood.
Therefore, we have determined that oil and gas development and mining
functions as a stressor to the future viability of the species via
impacts to water sources that provide habitat for Wright's marsh
thistle.
[[Page 61468]]
Table 1--Stressors Impacting Each of the Eight Populations of Wright's Marsh Thistle
[USFWS 2017, chapter 4]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Stressors to population
-----------------------------------------------------------------------------------------------------
Decreased water availability
Population --------------------------------------------------- Native and
Groundwater and Livestock nonnative Oil and gas
Drought surface water Effects of grazing plants development
depletion climate change
--------------------------------------------------------------------------------------------------------------------------------------------------------
Eastern Populations
--------------------------------------------------------------------------------------------------------------------------------------------------------
Santa Rosa Basin.................................. XX XX XX XXX XX X
Bitter Lake NWR................................... XX XX XX ............... XX XX
Blue Spring....................................... XX XXX XX XX X XX
--------------------------------------------------------------------------------------------------------------------------------------------------------
Western Populations
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alamosa Springs................................... XXX XX XX X ............... X
Tularosa Creek.................................... XXX XX XX ............... X ...............
Silver Springs.................................... XXX XXX XX X ............... ...............
La Luz Canyon..................................... XXX XXX XX X ............... ...............
Karr/Haynes Canyon................................ XXX XXX XX X X ...............
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: XXX indicates a significant stressor to the population, XX indicates a moderate stressor to the population, and X indicates a mild stressor to the
population.
Conservation Measures and Regulatory Mechanisms
Minimal conservation of Wright's marsh thistle is occurring on the
Federal level. The Bitter Lake NWR manages invasive reeds in their
moist soil/wetland units where the species is located. This management
helps increase sunlight availability and decrease competition with
nonnative species. The NWR also recently received a grant to complete
seed collection efforts for Wright's marsh thistle. The Lincoln
National Forest does not have active conservation for the thistle, but
implements a 61-m (200-ft) buffer around occupied sites when projects
occur within or near occupied areas.
At the State level, Wright's marsh thistle is listed as endangered,
under the authority of the New Mexico Statutes Annotated 1978, at title
19 of the New Mexico Administrative Code at chapter 21, part 2, section
9 (19 NMAC 21.2.9). The provisions in New Mexico state law prohibit the
taking of endangered plants on all lands of New Mexico (except tribal
lands), except under valid permit issued by the State, and encourage
conservation by State government agencies. In this instance, ``taking''
means the removal, with the intent to possess, transport, export, sell,
or offer for sale. Further, if Wright's marsh thistle is listed under
the Act, the State may enter into agreements with Federal agencies to
administer and manage any area required for the conservation,
management, enhancement, or protection of listed species. Funds for
these activities could be made available under section 6 of the Act
(Cooperation with the States). Thus, the Federal protection afforded to
this plant by listing it as an endangered or threatened species would
be reinforced and supplemented by protection under State law. In
addition to the state endangered listing for Wright's marsh thistle,
some protection is offered to the species through Title 19 of the New
Mexico Administrative Code at chapter 15, part 2 (19 NMAC 15.2) which
outlines general environmental provisions for water and wildlife
relating to oil and gas operations including information on methods to
reduce risk of contamination to the surrounding habitat. While this
reduces the risks associated with oil and gas production to nearby
occupied locations of the thistle, the high volume of oil and gas
leases near these sites means the risk of impacts from a spill still
persist.
Future Scenarios Considered
As there are a range of possibilities regarding the intensity of
stressors (i.e., decreased water availability to habitat, ungulate
grazing, native and nonnative plants, oil and gas development, and
mining) acting on the populations, we forecast Wright's marsh thistle's
resiliency, representation, and redundancy under four plausible
scenarios in the SSA report. For these scenarios, we considered four
different trajectories for all threats acting on the species (i.e., all
threats increasing at two different rates, decreasing, or remaining at
the current level). We did not look at interactions between threats
(i.e., one threat increasing with another threat decreasing), as data
were not sufficient for this type of analysis. These four scenarios
incorporate the best available information on projection of threat data
up to 50 years in the future. Sources of data include, but are not
limited to, development (urban, agricultural, oil and gas and mining)
plans for various areas and climate change models. For example, we
referenced the City of Alamogordo's 50-year development plan for
projections of future water withdrawals. In regards to climate change
models, we used a moderate emissions climate change scenario of RCP 4.5
from the 2017 U.S. Climate Resilience Toolkit, which provides a range
of projections for temperature and precipitation through 2100 (NOAA
2017). We also used the U.S. Geological Survey's Monthly Water Balance
Model Futures Portal that provides projections out to the year 2095 for
changes in evapotranspiration (USGS 2017, entire). Some, but not all,
of the threats could be projected beyond 50 years into the future.
Therefore, to develop our future scenarios, we only used projection
information up to 50-years into the future, the timeframe that includes
projections for all future threats and for which we could predict the
expected future resiliency and overall condition for each population
based on our knowledge of the species' expected response to identified
threats.
First, the ``Continuing Current Conditions'' scenario projects the
condition of Wright's marsh thistle populations if the current risks to
population viability continue with the same trajectory as experienced
currently. Decreased water availability
[[Page 61469]]
continues to impact the populations via continuing levels of drought,
along with ground and surface water depletion. Grazing continues where
it has been occurring, and the impacts will accumulate. Competition
from native and nonnative plants continues, along with any current
impacts from oil and gas development. For this scenario, we used the
mean level of projected values in temperature (an increase in mean
daily maximum temperature of approximately 0.83 [deg]C (1.5 [deg]F)
over 50 years).
Second, the ``Optimistic'' scenario projects the condition of
Wright's marsh thistle populations if conservation measures are put in
place to limit the impacts of current risks to population viability,
including conservation efforts to address decreased water availability,
livestock grazing, and competition with native and nonnative plants.
For this scenario, we used the low level of projected values in
temperature (an increase in mean daily maximum temperature of
approximately 0.56 [deg]C (1.0 [deg]F) over 50 years and increases in
mean monthly potential evapotranspiration of 0 to 10 millimeters (mm)
(0 to 0.4 inches (in)) over 50 years), leading to less severe effects
of drought on the riparian ecosystems of which Wright's marsh thistle
is a part.
Third, the ``Major Effects'' scenario projects the condition of
Wright's marsh thistle if stressors on the populations are increased.
We expect a decrease in water availability, along with increased
negative impacts from grazing, native and nonnative plants, oil and gas
development, and mining. For this scenario, we used the moderate level
of projected values in temperature (an increase in mean daily maximum
temperature of approximately 1.7 [deg]C (3.0 [deg]F) over 50 years, and
increases in mean monthly potential evapotranspiration of 10 to 30 mm
(0.4 to 1.2 in) over 50 years), with increased impacts of drought.
Finally, the ``Severe Effects'' scenario projects the condition of
Wright's marsh thistle populations under the assumption that stressors
on the populations are highly increased. Compared to the ``Major
Effects'' scenario, we expect a further decrease in water availability,
along with further increased negative impacts from ungulate grazing,
native and nonnative plants, oil and gas development, and mining. For
this scenario, we used the high level of projected values in
temperature (an increase in mean daily maximum temperature of
approximately 2.8 [deg]C (5.0 [deg]F) over 50 years and increases in
mean monthly potential evapotranspiration of 30 to 80 mm (1.2 to 3.1
in) over 50 years) with increased impacts of drought.
Thus, we considered the range of potential likely scenarios that
represent different possibilities for how the stressors outlined above
may influence the future condition of the species. The results of this
analysis for each scenario are presented below in Table 2. For specific
details on how each scenario impacted the six factors (habitat
quantity, number of patches, abundance, reproduction, permanent root
saturation, and full sun) contributing to overall condition of each
population, refer to chapter 5 of the SSA report (USFWS 2017).
Table 2--Condition Ratings for each of the Eight Populations of Wright's Marsh Thistle Under Four Possible Future Scenarios
[USFWS 2017, Chapter 5]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Scenario 1: Continuing Scenario 3: Major Scenario 4: Severe
Population Current condition current conditions Scenario 2: Optimistic effects effects
--------------------------------------------------------------------------------------------------------------------------------------------------------
Eastern Populations
--------------------------------------------------------------------------------------------------------------------------------------------------------
Santa Rosa Basin............. Moderate............... Moderate............... High................... Moderate.............. Low.
Bitter Lake NWR.............. Moderate............... Moderate............... High................... Moderate.............. Low.
Blue Spring.................. Moderate............... Low.................... Moderate............... Low................... Low.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Western Populations.....................................................................................................................................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alamosa Springs.............. Low.................... Low.................... Low.................... Very Low.............. Extirpated.
Tularosa Creek............... Very Low............... Extirpated............. Very Low............... Extirpated............ Extirpated.
Silver Springs............... Very Low............... Very Low............... Very Low............... Extirpated............ Extirpated.
La Luz Canyon................ Very Low............... Very Low............... Very Low............... Extirpated............ Extirpated.
Karr/Haynes Canyon........... Low.................... Low.................... Low.................... Low................... Extirpated.
--------------------------------------------------------------------------------------------------------------------------------------------------------
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have not
only analyzed individual effects on the species, but we have also
analyzed their potential cumulative effects. We incorporate the
cumulative effects into our SSA analysis when we characterize the
current and future condition of the species. Our assessment of the
current and future conditions encompasses and incorporates the threats
individually and cumulatively. Our current and future condition
assessment is iterative because it accumulates and evaluates the
effects of all the factors that may be influencing the species,
including threats and conservation efforts. Because the SSA framework
considers not just the presence of the factors, but to what degree they
collectively influence risk to the entire species, our assessment
integrates the cumulative effects of the factors and replaces a
standalone cumulative effects analysis.
Determination of the Status of Wright's Marsh Thistle
Section 4 of the Act (16 U.S.C. 1533), and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines ``endangered species'' as a species
``in danger of extinction throughout all or a significant portion of
its range,'' and ``threatened species'' as a species ``likely to become
an endangered species within the foreseeable future throughout all or a
significant portion of its range.'' The Act requires that we determine
whether a species meets the definition of ``endangered species'' or
``threatened species'' because of any of the following factors: (A) The
present or threatened destruction, modification, or curtailment of its
habitat or range; (B) overutilization for commercial, recreational,
scientific, or educational
[[Page 61470]]
purposes; (C) disease or predation; (D) the inadequacy of existing
regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence.
Status Throughout All of Its Range
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
and the cumulative effect of the threats under the section 4(a)(1)
factors to Wright's marsh thistle.
Wright's marsh thistle is a narrow endemic (restricted to a small
range) with a historical, documented decline. The historical range of
the species included 10 locations in New Mexico, 2 locations in
Arizona, and 2 locations in Mexico. Wright's marsh thistle has been
extirpated from all previously known locations in Arizona and Mexico,
as well as two locations in New Mexico. In addition, the currently
extant populations have declined in population numbers over time based
on comparisons between 1995 and 2012 surveys (Sivinski 1996 entire,
2012 entire). As a result, the remaining extant area of the eight
populations has contracted in recent years, and is currently
approximately only 43 ha (106 ac). Of the remaining eight extant
populations, three have moderate resiliency, two have low resiliency,
and three have very low resiliency and are likely at risk of
extirpation (USFWS 2017). The species historically had representation
in the form of two morphologically distinct and geographically separate
forms; the species continues to maintain representation currently in
these forms, although population sizes have decreased.
Wright's marsh thistle faces threats from habitat degradation due
to decreased water availability, livestock grazing, native and
nonnative plants, and oil and gas development and mining (Factor A).
These threats, which are expected to be exacerbated by continued
drought and the effects of climate change (Factor E), were important
factors in our assessment of the future viability of Wright's marsh
thistle. In addition, small, isolated populations and lack of
connectivity contribute to the thistle's low resiliency to stochastic
events (Factor E). We expect a further decrease in water availability,
along with increased negative impacts from grazing, native and
nonnative plants, oil and gas development, and mining. Given current
and anticipated future decreases in resiliency, populations would
become more vulnerable to extirpation from stochastic events, in turn,
resulting in concurrent losses in representation and redundancy. The
range of plausible future scenarios of the species' habitat conditions
and population factors suggest possible extirpation in as many as five
of eight currently extant populations. The most optimistic model
predicted that while no populations were likely to become extirpated,
three of the eight populations were expected to have very low
resiliency.
As assessed in the SSA report and displayed above in Table 2, the
current condition rankings for the eight extant populations show that
three populations are in moderate condition, two population are in low
condition, and three populations are in very low condition. Wright's
marsh thistle also exhibits representation across two morphologically
distinct and geographically separate forms. While threats are currently
acting on the thistle throughout its range, the three eastern
populations (Santa Rosa, Bitter Lake, and Blue Springs) were found to
have high or moderate resiliency for their current condition.
Therefore, we did not find that the thistle is currently in danger of
extinction throughout all of its range, based on the current condition
of the species; thus, an endangered status is not appropriate.
Wright's marsh thistle meets the definition of a threatened species
because it is facing threats across its range that have led to reduced
resiliency, redundancy, and representation. According to our assessment
of plausible future scenarios, the species is likely to become an
endangered species within the foreseeable future throughout all of its
range. For the purposes of this determination, the foreseeable future
is considered approximately 25 years into the future. This timeframe
was arrived at by looking at the various future projections associated
with data from the Intergovernmental Panel on Climate Change (IPCC),
U.S. Climate Resilience Toolkit, future development plans from the City
of Alamogordo and Santa Rosa, and grazing management information from
the U.S. Forest Service. These data sources covered a variety of time
frames, but all covered a span of at least 50 years. We therefore
looked at the projections from these sources in each of our future
scenarios out to three time steps: 10 years, 25 years, and 50 years. We
found that as the projections for the various stressors went past 25
years in the scenarios, the uncertainties associated with some of those
projections, particularly water use and depletion, increased. Thus, for
the purposes of this determination, we were most confident in setting
the foreseeable future at 25 years.
Our analysis of the species' current and future conditions show
that the population and habitat factors used to determine the
resiliency, representation, and redundancy for Wright's marsh thistle
are likely to continue to decline to the degree that the thistle is
likely to become in danger of extinction within the foreseeable future
throughout all or a significant portion of its range. While the
``Optimistic'' scenario resulted in two of the populations with
moderate current condition improving to high condition due to increased
conservation measures, the other three scenarios all resulted in
decreased resiliency for some if not most populations. The ``Continuing
Condition'' scenario resulted in one of the current eight extant
populations becoming extirpated, the ``Major Effects'' scenario
resulted in three of the current eight extant populations becoming
extirpated, and the ``Severe Effects'' scenario resulted in five of the
current eight extant populations becoming extirpated. Based on our
understanding of the increasing trends in threats as analyzed into the
foreseeable future (i.e., 25 years), the likelihood of occurrence of
the ``Major Effects'' and ``Severe Effects'' scenarios increases as
time progresses. The decreased resiliency of populations projected in
three of the four scenarios would lead to subsequent losses in
redundancy and representation, and an overall decline in species
viability in the foreseeable future. Further details on the likelihood
of scenarios can be found in chapter 5 of the SSA report (USFWS 2017).
Due to the continuation of threats at increasing levels, we
anticipate a severe reduction in the thistle's future overall range and
the extirpation of several populations. Furthermore, we anticipate that
the variety of factors acting in combination on the remaining habitat
and populations are likely to reduce the overall viability of the
species to a dangerously low level. In addition, the conservation
measures currently in place are not adequate to overcome the negative
impacts from increasing threats, and future conservation measures are
not considered highly plausible. The risk of extinction will be high
because the remaining populations are small, are isolated, and have
limited or no potential for recolonization after local population
extirpations. Thus, after assessing the best available information, we
determine that Wright's marsh thistle is not currently in danger of
extinction, but is likely to become in danger of extinction within the
[[Page 61471]]
foreseeable future, throughout all of its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. The court in Center for Biological Diversity v. Everson,
2020 WL 437289 (D.D.C. Jan. 28, 2020) (Center for Biological
Diversity), vacated the aspect of the 2014 Significant Portion of its
Range Policy that provided that the Services do not undertake an
analysis of significant portions of a species' range if the species
warrants listing as threatened throughout all of its range. Therefore,
we proceed to evaluating whether the species is endangered in a
significant portion of its range--that is, whether there is any portion
of the species' range for which both (1) the portion is significant;
and, (2) the species is in danger of extinction in that portion.
Depending on the case, it might be more efficient for us to address the
``significance'' question or the ``status'' question first. We can
choose to address either question first. Regardless of which question
we address first, if we reach a negative answer with respect to the
first question that we address, we do not need to evaluate the other
question for that portion of the species' range.
Following the court's holding in Center for Biological Diversity,
we now consider whether there are any significant portions of the
species' range where the species is in danger of extinction now (i.e.,
endangered). In undertaking this analysis for Wright's marsh thistle,
we choose to address the status question first--we consider information
pertaining to the geographic distribution of both the species and the
threats that the species faces to identify any portions of the range
where the species is endangered.
For Wright's marsh thistle, we considered whether the threats are
geographically concentrated in any portion of the species' range at a
biologically meaningful scale. In light of the species' needs (i.e.,
permanent root saturation; alkaline soils; full, direct, or nearly full
sunlight; and abundant pollinators), we examined the following threats
(including cumulative threats): Habitat degradation due to decreased
water availability, livestock grazing, native and non-native plants,
and oil and gas development and mining; continued drought and the
effects of climate change; and small, isolated populations. Each
population of Wright's marsh thistle was determined to have some level
of impact from each threat listed above, with variations in source and
intensity. For example, habitat degradation due to decreased water
availability at the Santa Rosa population location is influenced by
agricultural use, while the La Luz Canyon population location is
influenced primarily by municipal use. In another example, livestock
grazing tends to be present with greater intensity near the Santa Rosa
population location than near the La Luz Canyon population location.
While there may be some variation in the source and intensity of each
individual threat at each population location, we found no
concentration of threats in any portion of Wright's marsh thistle's
range at a biologically meaningful scale. Thus, there are no portions
of the species' range where the species has a different status from its
rangewide status.
Therefore, no portion of the species' range provides a basis for
determining that the species is in danger of extinction in a
significant portion of its range, and we determine that the species is
likely to become in danger of extinction within the foreseeable future
throughout all of its range. This is consistent with the courts'
holdings in Desert Survivors v. Department of the Interior, No. 16-cv-
01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), and Center for
Biological Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz.
2017).
Determination of Status
Our review of the best available scientific and commercial
information indicates that Wright's marsh thistle meets the definition
of a threatened species. Therefore, we propose to list Wright's marsh
thistle as a threatened species in accordance with sections 3(20) and
4(a)(1) of the Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing results in public awareness and
conservation by Federal, State, Tribal, and local agencies; private
organizations; and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies and
the prohibitions against certain activities are discussed, in part,
below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Subsection 4(f) of the Act calls for the Service to develop
and implement recovery plans for the conservation of endangered and
threatened species. The recovery planning process involves the
identification of actions that are necessary to halt or reverse the
species' decline by addressing the threats to its survival and
recovery. The goal of this process is to restore listed species to a
point where they are secure, self-sustaining, and functioning
components of their ecosystems.
Recovery planning includes the development of a recovery outline
shortly after a species is listed and subsequent preparation of a draft
and final recovery plan. The recovery outline guides the immediate
implementation of urgent recovery actions and describes the process to
be used to develop a recovery plan. Revisions of the plan may be done
to address continuing or new threats to the species, as new substantive
information becomes available. The recovery plan also identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or for
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Recovery teams (composed of
species experts, Federal and State agencies, nongovernmental
organizations, and stakeholders) are often established to develop
recovery plans. When completed, the recovery outline, draft recovery
plan, and the final recovery plan will be available on our website
(http://www.fws.gov/endangered).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To
[[Page 61472]]
achieve recovery of these species requires cooperative conservation
efforts on private, State, and Tribal lands.
If this species is listed, funding for recovery actions will be
available from a variety of sources, including Federal budgets, State
programs, and cost share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, the State of New Mexico would be
eligible for Federal funds to implement management actions that promote
the protection or recovery of Wright's marsh thistle. Information on
our grant programs that are available to aid species recovery can be
found at: http://www.fws.gov/grants.
Although Wright's marsh thistle is only proposed for listing under
the Act at this time, please let us know if you are interested in
participating in recovery efforts for this species. Additionally, we
invite you to submit any new information on this species whenever it
becomes available and any information you may have for recovery
planning purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as an
endangered or threatened species and with respect to its critical
habitat, if any is designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any action that is likely to jeopardize the
continued existence of a species proposed for listing or result in
destruction or adverse modification of proposed critical habitat. If a
species is listed subsequently, section 7(a)(2) of the Act requires
Federal agencies to ensure that activities they authorize, fund, or
carry out are not likely to jeopardize the continued existence of the
species or destroy or adversely modify its critical habitat. If a
Federal action may affect a listed species or its critical habitat, the
responsible Federal agency must enter into consultation with the
Service.
Federal agency actions within the species' habitat that may require
conference or consultation or both as described in the preceding
paragraph include management and any other landscape-altering
activities on Federal lands administered by the U.S. Fish and Wildlife
Service and U.S. Forest Service; issuance of section 404 Clean Water
Act (33 U.S.C. 1251 et seq.) permits by the U.S. Army Corps of
Engineers; and construction and maintenance of roads or highways by the
Federal Highway Administration.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed, those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a proposed
listing on proposed and ongoing activities within the range of the
species proposed for listing. The discussion below regarding protective
regulations under section 4(d) of the Act complies with our policy.
II. Proposed Rule Issued Under Section 4(d) of the Act
Background
Section 4(d) of the Act contains two sentences. The first sentence
states that the ``Secretary shall issue such regulations as he deems
necessary and advisable to provide for the conservation'' of species
listed as threatened. The U.S. Supreme Court has noted that statutory
language like ``necessary and advisable'' demonstrates a large degree
of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)).
Conservation is defined in the Act to mean ``the use of all methods and
procedures which are necessary to bring any endangered species or
threatened species to the point at which the measures provided pursuant
to [the Act] are no longer necessary.'' Additionally, the second
sentence of section 4(d) of the Act states that the Secretary ``may by
regulation prohibit with respect to any threatened species any act
prohibited under section 9(a)(1), in the case of fish or wildlife, or
section 9(a)(2), in the case of plants.'' Thus, the combination of the
two sentences of section 4(d) provides the Secretary with wide latitude
of discretion to select and promulgate appropriate regulations tailored
to the specific conservation needs of the threatened species. The
second sentence grants particularly broad discretion to the Service
when adopting the prohibitions under section 9.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, courts have upheld rules
developed under section 4(d) as a valid exercise of agency authority
where they prohibited take of threatened wildlife, or include a limited
taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007
U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council
v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D.
Wash. 2002)). Courts have also upheld 4(d) rules that do not address
all of the threats a species faces (see State of Louisiana v. Verity,
853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when
the Act was initially enacted, ``once an animal is on the threatened
list, the Secretary has an almost infinite number of options available
to him with regard to the permitted activities for those species. He
may, for example, permit taking, but not importation of such species,
or he may choose to forbid both taking and importation but allow the
transportation of such species'' (H.R. Rep. No. 412, 93rd Cong., 1st
Sess. 1973).
Exercising its authority under section 4(d), the Service has
developed a proposed rule that is designed to address Wright's marsh
thistle's specific threats and conservation needs. Although the statute
does not require the Service to make a ``necessary and advisable''
finding with respect to the adoption of specific prohibitions under
section 9, we find that this rule as a whole satisfies the requirement
in section 4(d) of the Act to issue regulations deemed necessary and
advisable to provide for the conservation of the Wright's marsh
thistle. As discussed above under Summary of Biological Status and
Threats, the Service has concluded that Wright's marsh thistle is
likely to become in danger of extinction within the foreseeable future
primarily due to habitat loss and modification. The provisions of this
proposed 4(d) rule would promote conservation of the species by
encouraging management of the landscape in ways that meet landowner's
management priorities while providing for the conservation needs of
Wright's marsh thistle. The provisions of this proposed rule are one of
many tools that the Service would use to promote the conservation of
the Wright's marsh thistle. This proposed 4(d) rule would apply only if
and when the Service makes final the listing of Wright's marsh thistle
as a threatened species.
Provisions of the Proposed 4(d) Rule
This proposed 4(d) rule would provide for the conservation of
Wright's marsh thistle by prohibiting, except as otherwise authorized
or permitted, any person subject to the jurisdiction of the United
States from the following: Removing and reducing to possession the
species from areas under Federal jurisdiction; maliciously damaging or
destroying the species on any area under Federal jurisdiction; or
removing, cutting, digging up, or damaging or
[[Page 61473]]
destroying the species on any area under Federal jurisdiction in
knowing violation of any law or regulation of any State or in the
course of any violation of a State criminal trespass law. Almost 30
percent of occupied Wright's marsh thistle habitat is on Federal land.
As discussed in the Summary of Biological Status and Threats
(above), habitat loss and modification are affecting the viability of
Wright's marsh thistle. A range of activities that occur on Federal
land have the potential to impact the thistle, including changes in
water availability, ungulate grazing, and oil and gas development. The
regulation of these activities through this 4(d) rule would help
enhance the conservation of Wright's marsh thistle by preserving the
species' remaining populations on Federal lands and decrease
synergistic, negative effects from other stressors. As a whole, the
proposed 4(d) rule would help in the efforts to recover the species.
We may issue permits to carry out otherwise prohibited activities,
including those described above, involving threatened plants under
certain circumstances. Regulations governing permits for threatened
plants are codified at 50 CFR 17.72, which states that ``the Director
may issue a permit authorizing any activity otherwise prohibited with
regard to threatened species.'' That regulation also states, ``The
permit shall be governed by the provisions of this section unless a
special rule applicable to the plan is provided in sections 17.73 to
17.78.'' We interpret that second sentence to mean that permits for
threatened species are governed by the provisions of section 17.72
unless a special rule provides otherwise. We recently promulgated
revisions to section 17.71 providing that section 17.71 will no longer
apply to plants listed as threatened in the future. We did not intend
for those revisions to limit or alter the applicability of the
permitting provisions in section 17.72, or to require that every
special rule spell out any permitting provisions that apply to that
species and special rule. To the contrary, we anticipate that
permitting provisions would generally be similar or identical for most
species, so applying the provisions of section 17.72 unless a special
rule provides otherwise would likely avoid substantial duplication.
Moreover, this interpretation brings section 17.72 in line with the
comparable provision for wildlife at 50 CFR 17.32, in which the second
sentence states, ``Such permit shall be governed by the provisions of
this section unless a special rule applicable to the wildlife,
appearing in sections 17.40 to 17.48, of this part provides
otherwise.'' Under 50 CFR 17.12, with regard to threatened plants, a
permit may be issued for the following purposes: Scientific purposes,
to enhance propagation or survival, for economic hardship, for
botanical or horticultural exhibition, for educational purposes, or
other purposes consistent with the purposes of the Act. Additional
statutory exemptions from the prohibitions are found in sections 9 and
10 of the Act.
The Service recognizes the special and unique relationship with our
state natural resource agency partners in contributing to conservation
of listed species. State agencies often possess scientific data and
valuable expertise on the status and distribution of endangered,
threatened, and candidate species of wildlife and plants. State
agencies, because of their authorities and their close working
relationships with local governments and landowners, are in a unique
position to assist the Services in implementing all aspects of the Act.
In this regard, section 6 of the Act provides that the Services shall
cooperate to the maximum extent practicable with the States in carrying
out programs authorized by the Act. Therefore, any qualified employee
or agent of a State conservation agency which is a party to a
cooperative agreement with the Service in accordance with section 6(c)
of the Act, who is designated by his or her agency for such purposes,
would be able to conduct activities designed to conserve Wright's marsh
thistle that may result in otherwise prohibited activities without
additional authorization.
Nothing in this proposed 4(d) rule would change in any way the
recovery planning provisions of section 4(f) of the Act, the
consultation requirements under section 7 of the Act, or the ability of
the Service to enter into partnerships for the management and
protection of Wright's marsh thistle. However, interagency cooperation
may be further streamlined through planned programmatic consultations
for the species between Federal agencies and the Service, where
appropriate. We ask the public, particularly State agencies and other
interested stakeholders that may be affected by the proposed 4(d) rule,
to provide comments and suggestions regarding additional guidance and
methods that the Service could provide or use, respectively, to
streamline the implementation of this proposed 4(d) rule (see
Information Requested, above).
III. Proposed Designation of Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features.
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
[[Page 61474]]
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the Federal agency would be required to consult
with the Service under section 7(a)(2) of the Act. However, even if the
Service were to conclude that the proposed activity would result in
destruction or adverse modification of the critical habitat, the
Federal action agency and the landowner are not required to abandon the
proposed activity, or to restore or recover the species; instead, they
must implement ``reasonable and prudent alternatives'' to avoid
destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical or biological features that occur in specific areas, we focus
on the specific features that are essential to support the life-history
needs of the species, including, but not limited to, water
characteristics, soil type, geological features, prey, vegetation,
symbiotic species, or other features. A feature may be a single habitat
characteristic, or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. When designating critical habitat, the Secretary will first
evaluate areas occupied by the species. The Secretary will only
consider unoccupied areas to be essential where a critical habitat
designation limited to geographical areas occupied by the species would
be inadequate to ensure the conservation of the species. In addition,
for an unoccupied area to be considered essential, the Secretary must
determine that there is a reasonable certainty both that the area will
contribute to the conservation of the species and that the area
contains one or more of those physical or biological features essential
to the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines, provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report and information developed during the
listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and, (3) the Act's prohibitions on certain actions that may
affect the species or its habitat. Federally funded or permitted
projects affecting listed species outside their designated critical
habitat areas may still result in jeopardy findings in some cases.
These protections and conservation tools will continue to contribute to
recovery of this species. Similarly, critical habitat designations made
on the basis of the best available information at the time of
designation will not control the direction and substance of future
recovery plans, habitat conservation plans, or other species
conservation planning efforts if new information available at the time
of these planning efforts calls for a different outcome.
Prudency Determination
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12), require that, to the maximum extent
prudent and determinable, the Secretary shall designate critical
habitat at the time the species is determined to be an endangered or
threatened species. Our regulations (50 CFR 424.12(a)(1)) state that
the Secretary may, but is not required to, determine that a designation
would not be prudent in the following circumstances:
(i) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(ii) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(iii) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States;
(iv) No areas meet the definition of critical habitat; or
(v) The Secretary otherwise determines that designation of critical
habitat would not be prudent based on the best scientific data
available.
As discussed earlier in this document, there is currently no
imminent threat of
[[Page 61475]]
collection or vandalism identified under Factor B for this species, and
identification and mapping of critical habitat is not expected to
initiate any such threat. In our SSA and proposed listing determination
for Wright's marsh thistle, we determined that the present or
threatened destruction, modification, or curtailment of habitat or
range is a threat to Wright's marsh thistle and that those threats in
some way can be addressed by section 7(a)(2) consultation measures. The
species occurs wholly in the jurisdiction of the United States, and we
are able to identify areas that meet the definition of critical
habitat. Therefore, because none of the circumstances enumerated in our
regulations at 50 CFR 424.12(a)(1) has been met and because there are
no other circumstances the Secretary has identified for which this
designation of critical habitat would be not prudent, we have
determined that the designation of critical habitat is prudent for
Wright's marsh thistle.
Critical Habitat Determinability
Having determined that designation is prudent, under section
4(a)(3) of the Act we must find whether critical habitat for Wright's
marsh thistle is determinable. Our regulations at 50 CFR 424.12(a)(2)
state that critical habitat is not determinable when one or both of the
following situations exist:
(i) Data sufficient to perform required analyses are lacking, or
(ii) The biological needs of the species are not sufficiently well
known to identify any area that meets the definition of ``critical
habitat.''
When critical habitat is not determinable, the Act allows the
Service an additional year to publish a critical habitat designation
(16 U.S.C. 1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological
needs of the species and habitat characteristics where this species is
located. This and other information represent the best scientific data
available and led us to conclude that the designation of critical
habitat is determinable for Wright's marsh thistle.
Physical or Biological Features
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas within the geographical
area occupied by the species at the time of listing to designate as
critical habitat, we consider the physical or biological features that
are essential to the conservation of the species and which may require
special management considerations or protection. The regulations at 50
CFR 424.02 define ``physical or biological features essential to the
conservation of the species'' as the features that occur in specific
areas and that are essential to support the life-history needs of the
species, including, but not limited to, water characteristics, soil
type, geological features, sites, prey, vegetation, symbiotic species,
or other features. A feature may be a single habitat characteristic or
a more complex combination of habitat characteristics. Features may
include habitat characteristics that support ephemeral or dynamic
habitat conditions. Features may also be expressed in terms relating to
principles of conservation biology, such as patch size, distribution
distances, and connectivity. For example, physical features essential
to the conservation of the species might include gravel of a particular
size required for spawning, alkali soil for seed germination,
protective cover for migration, or susceptibility to flooding or fire
that maintains necessary early-successional habitat characteristics.
Biological features might include prey species, forage grasses,
specific kinds or ages of trees for roosting or nesting, symbiotic
fungi, or a particular level of nonnative species consistent with
conservation needs of the listed species. The features may also be
combinations of habitat characteristics and may encompass the
relationship between characteristics or the necessary amount of a
characteristic needed to support the life history of the species.
In considering whether features are essential to the conservation
of the species, the Service may consider an appropriate quality,
quantity, and spatial and temporal arrangement of habitat
characteristics in the context of the life-history needs, condition,
and status of the species. These characteristics include, but are not
limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Water availability is a requirement for three of the four life
stages of Wright's marsh thistle's life cycle: Seedlings, rosettes, and
mature plants. Optimal habitat should include seeps, springs, cienegas,
and streams spreading water normally both above and below ground, with
surface or subsurface water flow. The water present in this habitat
should be sufficient to allow for permanent root saturation of Wright's
marsh thistle in order to provide conditions needed for successful
reproduction and survival.
Alkaline soils are required by all four life stages of Wright's
marsh thistle's life cycle: Seeds, seedlings, rosettes, and mature
plants. These soils are typically found associated with alkaline
springs and seeps ranging from low desert up to ponderosa pine forest.
Often, water may be available on the landscape in a variety of riparian
areas; however, without the presence of alkaline soils in conjunction
with water availability, Wright's marsh thistle is unlikely to maintain
viability.
Full sunlight is necessary for development of rosettes into mature
plants, as well as the survival of mature plants. Optimal habitat
includes areas which provide access to sufficient sunlight exposure
with no obstructions of sunlight during most life stages of Wright's
marsh thistle. These areas should not have dense vegetative cover,
which creates competition for sunlight and can negatively impact
maturation and flowering of the thistle.
Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring
Diverse native floral communities are necessary to attract
pollinators in order to complete cross pollination of Wright's marsh
thistle plants. These communities vary depending on location but may
include bulrush (Scirpus spp.), beaked spikerush (Eleocharis
rostellata), Pecos sunflower (Helianthus paradoxus), rush (Juncus
spp.), cattail (Typha spp.), and other native flowering plants
(Sivinski 1996, pp. 2-4). Many generalist pollinators may visit
Wright's marsh thistle (Sivinski 2017, entire). The most common
pollinators of the thistle are bees, especially bumble bees (Bombus
spp.) (Sivinski 2017, entire). A diverse native floral community
ensures sufficient pollinators to promote cross pollination within and
among patches of Wright's marsh thistle.
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential to
the conservation of Wright's marsh thistle from studies of the species'
habitat, ecology, and life history as described below. Additional
information can be found in the SSA report (USFWS 2017,
[[Page 61476]]
p. 39) available on http://www.regulations.gov under Docket No. FWS-R2-
ES-2018-0071). We have determined that the following physical or
biological features are essential to the conservation of Wright's marsh
thistle:
Water-saturated soils with surface or subsurface water
flow that allows permanent root saturation and seed germination;
Alkaline soils;
Full sunlight; and
Diverse floral communities to attract pollinators.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection. As mentioned above, in the case of Wright's marsh thistle,
these features include water-saturated soils with surface or subsurface
water flow that allows permanent root saturation and seed germination,
alkaline soils, full sunlight, and diverse floral communities to
attract pollinators. The features may require special management
considerations or protection to reduce the following threats: Ground
and surface water depletion, increasing drought and changes in climate
change, livestock grazing, oil and gas development and mining, and
native and nonnative plants. Localized stressors may also include
herbicide use and mowing. The species occupies small areas of seeps,
springs, and wetland habitat in an arid region that is experiencing
drought as well as ongoing and future water withdrawals. The species'
highly specific requirements of saturated soils with surface or
subsurface water flow make it particularly vulnerable to desiccation
and loss of suitable habitat. Furthermore, the thistle's need for full
sunlight makes it particularly vulnerable to native and nonnative grass
planting and habitat encroachment.
Special management considerations or protections are required
within critical habitat areas to address these threats. Management
activities that could ameliorate these threats include, but are not
limited to: (1) Conservation efforts to ensure sufficient water
availability; (2) managing livestock grazing via the use of exclosures;
(3) control of native and nonnative plants via controlled burning or
mechanical treatments; (4) spill prevention and groundwater protection
during oil and gas development and mining; (5) watershed/wetland
restoration efforts; and (6) efforts to restore a diverse floral
community sufficient to attract pollinators.
These management activities would protect the physical or
biological features for Wright's marsh thistle by providing for surface
or subsurface water flow for permanent root saturation, soil alkalinity
necessary for all life stages, the availability of direct sunlight for
plant development, and habitat for pollinators to complete cross
pollination of the thistle. Additionally, management of critical
habitat lands would help limit the impacts of current risks to
population viability.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific and commercial data available to designate critical habitat.
In accordance with the Act and our implementing regulations at 50 CFR
424.12(b), we review available information pertaining to the habitat
requirements of the species and identify specific areas within the
geographical area occupied by the species at the time of listing and
any specific areas outside the geographical area occupied by the
species to be considered for designation as critical habitat. We are
not currently proposing to designate any areas outside the geographical
area occupied by the species because we did not find any areas that
were essential for the conservation of the species.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
SSA report and information developed during the listing process for the
species. Additional information sources may include any generalized
conservation strategy, criteria, or outline that may have been
developed for the species; articles in peer-reviewed journals;
conservation plans developed by States and counties; scientific status
surveys and studies; biological assessments; other unpublished
materials; or experts' opinions or personal knowledge. In this case, we
used existing occurrence data for Wright's marsh thistle and
information on the habitat and ecosystems upon which the species
depends. These sources of information included, but were not limited
to:
(1) Data used to prepare the species status assessment and this
proposed rule to list the species;
(2) Information from biological surveys;
(3) Various agency reports and databases;
(4) Information from the U.S. Forest Service and other cooperators;
(5) Information from species experts;
(6) Data and information presented in academic research theses; and
(7) Regional Geographic Information System (GIS) data (such as
species occurrence data, land use, topography, aerial imagery, soil
data, wetland data, and land ownership maps) for area calculations and
mapping.
Areas Occupied at the Time of Listing
The proposed critical habitat designation includes currently
occupied sites within the species' historical range that have retained
the necessary physical and biological features that will allow for the
maintenance and expansion of existing populations. Wright's marsh
thistle was historically known to occur in an additional site in
Arizona (Sivinski 2012, p. 2). The single location in Arizona was
collected in 1851 from San Bernardino Cienega, which straddles the
international border with Mexico; the location no longer has suitable
wetland habitat on the Arizona side of the line (Baker 2011, p. 7), and
we do not consider the site essential for the conservation of the
thistle because of the lack of suitable habitat and very low
restoration potential. Ten historical occurrences occurred in New
Mexico, but in a recent search effort at one of the sites (Lake
County), the thistle was not found (Sivinski 2011, p. 40) and the
habitat was found to be converted to an impervious surface. Another of
the 10 records (Rattlesnake Springs, Eddy County) is now thought to be
a hybrid between Wright's marsh thistle and Texas thistle (C. texanum)
(NMRPTC 2009, p. 2), and the site where it was recorded is now a golf
course. We do not consider either of these two sites in New Mexico to
be essential for the conservation of the thistle, because the species
is no longer present, the habitat is no longer available, or the
species was misidentified. However, the remaining eight locations in
New Mexico meet the definition of areas occupied by the thistle at the
time of listing; they are: Santa Rosa, Guadalupe County; Bitter Lake
NWR, Chaves County; Blue Spring, Eddy County; La Luz Canyon, Karr/
Haynes Canyon, Silver Springs, and Tularosa Creek, Otero County; and
Alamosa Creek, Socorro County.
In summary, for areas within the geographic area occupied by the
species at the time of listing, we delineated critical habitat unit
boundaries using the following process:
(1) We obtained point observations of all currently occupied areas;
[[Page 61477]]
(2) We drew minimum convex polygons around the point observations;
and
(3) We expanded the polygons to include all adjacent areas
containing the essential physical and biological features (specifically
the wetted area/moist soil outside of highly vegetated locations) to
support life-history processes essential to the conservation of the
species.
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands lack
physical or biological features necessary for Wright's marsh thistle.
The scale of the maps we prepared under the parameters for publication
within the Code of Federal Regulations may not reflect the exclusion of
such developed lands. Any such lands inadvertently left inside critical
habitat boundaries shown on the maps of this proposed rule have been
excluded by text in the proposed rule and are not proposed for
designation as critical habitat. Therefore, if the critical habitat is
finalized as proposed, a Federal action involving these lands would not
trigger section 7 consultation with respect to critical habitat and the
requirement of no adverse modification unless the specific action would
affect the physical or biological features in the adjacent critical
habitat.
We propose for designation as critical habitat lands that we have
determined are occupied at the time of listing and contain one or more
of the physical or biological features that are essential to support
life-history processes of the species. We are not proposing to
designate any areas that are not currently occupied by the species.
Eight units and 13 subunits are proposed for designation based on
one or more of the physical or biological features being present to
support Wright's marsh thistle's life-history processes. All eight
units contain all of the identified physical or biological features and
support multiple life-history processes. Some subunits contain only
some of the physical or biological features necessary to support
Wright's marsh thistle's particular use of that habitat.
The proposed critical habitat designation is defined by the map or
maps, as modified by any accompanying regulatory text, presented at the
end of this document under Proposed Regulation Promulgation. We include
more detailed information on the boundaries of the critical habitat
designation in the preamble of this document. We will make the
coordinates or plot points or both on which each map is based available
to the public on http://www.regulations.gov at Docket No. FWS-R2-ES-
2018-0071 and on the New Mexico Ecological Services' website at https://www.fws.gov/southwest/es/NewMexico/index.cfm.
Proposed Critical Habitat Designation
We propose to designate 64.3 ha (159 ac) in 8 units and 13 subunits
as critical habitat for Wright's marsh thistle. The critical habitat
areas we describe below constitute our current best assessment of areas
that meet the definition of critical habitat for the species. Table 3
provides the approximate area of each proposed critical habitat unit.
Table 4 breaks down the approximate percentage and size of the total
critical habitat designation by ownership type. Table 5 provides
currently listed species with occupied habitat on, and designated
critical habitat that overlaps with, proposed critical habitat for
Wright's marsh thistle. Species with existing critical habitat that
overlaps with proposed critical habitat for Wright's marsh thistle
include the Koster's springsnail (Juturnia kosteri), Noel's amphipod
(Gammarus desperatus), Roswell springsnail (Pyrgulopsis roswellensis),
Pecos sunflower (Helianthus paradoxus), and the New Mexico meadow
jumping mouse (Zapus hudsonius luteus). Other listed species in the
boundaries of proposed critical habitat include the Alamosa springsnail
(Tryonia alamosae), Chiricahua leopard frog (Lithobates
chiricahuensis), least tern (Sterna antillarum), and Pecos gambusia
(Gambusia nobilis). Three other listed species (or their critical
habitat) that are found in close proximity (<1609 m (1 mi)) to proposed
critical habitat for Wright's marsh thistle include the pecos pupfish
(Cyprinodon pecosensis), the Sacramento prickly poppy (Argemone
pinnatisecta), and the Sacramento Mountains thistle.
Table 3--Proposed Critical Habitat Units for Wright's Marsh Thistle
----------------------------------------------------------------------------------------------------------------
Unit No. and name Subunit No. and name Ownership Area
----------------------------------------------------------------------------------------------------------------
1--Santa Rosa.................... 1a--Blue Hole City of Santa Rosa. 0.93 ha (2.3 ac).
Hatchery.
1b--Blue Hole Road State.............. 0.45 ha (1.1 ac).
South.
1c--State Highway 91 State.............. 12.2 ha (30.1 ac).
North.
1d--Santa Rosa City of Santa Rosa. 0.97 ha (2.4 ac).
Ballpark South.
1e--State Highway 91 City of Santa Rosa. 5.9 ha (14.6 ac).
South. Private............ 0.78 ha (1.92 ac).
1f--Perch Lake...... City of Santa Rosa. 1.9 ha (4.6 ac).
1g--Sheehan Trust... Private............ 2.4 ha (6.0 ac).
1h--Freeman Property City of Santa Rosa. 0.18 ha (0.44 ac).
Private............ 0.91 ha (2.24 ac).
2--Alamosa Springs............... .................... Private............ 1.58 ha (3.9 ac).
3--Bitter Lake................... 3a--NWR Unit 5...... U.S. Fish and 3.16 ha (7.8 ac).
Wildlife Service.
3b--NWR Unit 6...... U.S. Fish and 15.9 ha (39.2 ac).
Wildlife Service.
4--Tularosa Creek................ .................... Tribal............. 0.65 ha (1.6 ac).
5--La Luz Canyon................. .................... U.S. Forest Service 0.01 ha (0.03 ac).
6--Silver Springs................ .................... U.S. Forest Service 0.38 ha (0.95 ac).
Tribal............. 0.23 ha (0.58 ac).
7--Karr/Haynes Canyon............ 7a--Haynes Canyon Private............ 0.008 ha (0.02 ac).
Road.
7b--Karr Canyon Road Private............ 0.73 ha (1.8 ac).
7c--Raven Road...... Private............ 1.05 ha (2.6 ac).
8--Blue Springs.................. .................... Private............ 14.04 ha (34.7 ac).
----------------------------------------------------------------------------------------------------------------
Note: Area estimates reflect all land within critical habitat unit boundaries, and estimates may not sum due to
rounding.
[[Page 61478]]
Table 4--Approximate Percentage and Size of Total Proposed Critical Habitat Designation for Wright's Marsh
Thistle per Ownership Type
----------------------------------------------------------------------------------------------------------------
Percent of
Ownership type total Size of designation
designation
----------------------------------------------------------------------------------------------------------------
Private....................................... 33.5 21.5 ha (53.13 ac).
Federal....................................... 30 19.45 ha (48 ac).
State......................................... 19.7 12.65 ha (31.26 ac).
City.......................................... 15.4 9.88 ha (24.4 ac).
Tribal........................................ 0.004 0.65 ha (1.6 ac).
----------------------------------------------------------------------------------------------------------------
Table 5--Wright's Marsh Thistle Proposed Critical Habitat Units and Co-occurring Listed Species or Existing
Critical Habitat
----------------------------------------------------------------------------------------------------------------
Existing designated
Co-occurring listed critical habitat for
Unit No. and name Subunit No. and name species (ha (ac) of other listed species (ha
overlapping occupied (ac) of overlapping
habitat) critical habitat)
----------------------------------------------------------------------------------------------------------------
1--Santa Rosa................... 1a--Blue Hole Hatchery Pecos sunflower (0.42 ha Pecos sunflower (0.93 ha
(1.0 ac)). (2.3 ac)).
1b--Blue Hole Road n/a....................... Pecos sunflower (0.45 ha
South. (1.0 ac)).
1c--State Highway 91 Pecos sunflower (0.15 ha Pecos sunflower (12.2 ha
North. (0.4 ac)). (30.0 ac)).
1d--Santa Rosa n/a....................... n/a.
Ballpark South.
1e--State Highway 91 Pecos sunflower (0.15 ha n/a.
South. (.04 ac)).
1f--Perch Lake........ Pecos sunflower (0.03 ha n/a.
(.07 ac)).
1g--Sheehan Trust..... n/a....................... n/a.
1h--Freeman Property.. n/a....................... n/a.
2--Alamosa Springs.............. ...................... Alamosa springsnail (1.58 n/a.
ha (3.9 ac)); Chiricahua
leopard frog (1.58 ha
(3.9 ac)).
3--Bitter Lake.................. 3a--NWR Unit 5........ Least tern (0.98 ha (2.4 Pecos sunflower (3.16 ha
ac)); (Koster's (7.8 ac)).
springsnail,* Noel's
amphipod,* Pecos
gambusia,* Pecos
pupfish,* Roswell
springsnail *).
3b--NWR Unit 6........ Koster's springsnail (2.4 Koster's springsnail (2.4
ha (5.9 ac)); Least tern ha (5.9 ac)); Pecos
(2.8 ha (6.9 ac)); sunflower (15.9 ha (39.3
Roswell springsnail (2.4 ac)); Roswell springsnail
ha 5.9 ac)); Noel's (2.4 ha (5.9 ac)); Noel's
amphipod (2.4 ha (5.9 amphipod (2.4 ha (5.9
ac)); (Pecos gambusia,* ac)).
Pecos pupfish *).
4--Tularosa Creek............... ...................... n/a....................... na.
5--La Luz Canyon................ ...................... (Sacramento prickly poppy n/a.
*).
6--Silver Springs............... ...................... New Mexico meadow jumping New Mexico meadow jumping
mouse (0.38 ha (0.9 ac)); mouse (0.38 ha (0.9 ac)).
(Sacramento Mountains
thistle *).
7--Karr/Haynes Canyon........... 7a--Haynes Canyon Road n/a....................... n/a.
7b--Karr Canyon Road.. n/a....................... n/a.
7c--Raven Road........ n/a....................... n/a.
8--Blue Springs................. ...................... Pecos gambusia (11.7 ha n/a.
(28.9 ac)).
----------------------------------------------------------------------------------------------------------------
* Species and/or critical habitat found in close proximity (<1,609 m (1 mi)) critical habitat unit, but not
overlapping exactly.
We present brief descriptions of all units below and reasons why
they meet the definition of critical habitat for Wright's marsh
thistle, below.
Unit 1: Santa Rosa
Unit 1 consists of eight subunits comprising 26.6 ha (65.7 ac) in
Guadalupe County, New Mexico. This unit consists of land owned by the
City of Santa Rosa, the State of New Mexico, and private landowners.
This unit partially overlaps with occupied habitat and designated
critical habitat for the federally threatened Pecos sunflower.
Subunit 1a: Blue Hole Hatchery
Subunit 1a consists of 11 small land parcels comprising 0.93 ha
(2.3 ac) in Guadalupe County, New Mexico. This subunit lies north of
Blue Hole Road on City of Santa Rosa property at the abandoned Blue
Hole Hatchery. Special management considerations or protection may be
required in Subunit 1a to address ground and surface water depletion,
as well as native and nonnative plant invasion. Such special management
or protection may include conservation efforts to ensure water
availability, along with decreasing competition with native and
nonnative plants via prescribed burning and mechanical treatments, if
necessary. Special management or protection may also include watershed/
wetland restoration efforts.
Subunit 1b: Blue Hole Road South
Subunit 1b consists of a small, 0.45-ha (1.1-ac) land parcel in
Guadalupe County, New Mexico. This subunit lies south of Blue Hole Road
and east of El Rito Creek on State of New Mexico land, which is an
undeveloped portion of a wetland preserve. Special management
considerations or protection may be required in Subunit 1b to address
ground and surface water depletion, as well as native and nonnative
invasion. Such special management or protection may include
conservation efforts to ensure water availability, along with
decreasing competition with native and nonnative plants via prescribed
burning and mechanical treatments, if necessary. Special management or
protection may also include watershed/wetland restoration efforts.
Subunit 1c: State Highway 91 North
Subunit 1c consists of 12.2 ha (30.1 ac) in Guadalupe County, New
Mexico. This subunit lies north of State Highway 91, near Subunit 1b on
State of New Mexico land, which is an undeveloped portion of a wetland
preserve. Special management considerations or protection may be
required in Subunit 1c to address ground and surface water
[[Page 61479]]
depletion, as well as native and nonnative plant invasion. Such special
management or protection may include conservation efforts to ensure
water availability, along with decreasing competition with native and
nonnative plants via prescribed burning and mechanical treatments, if
necessary. Special management or protection may also include watershed/
wetland restoration efforts.
Subunit 1d: Santa Rosa Ballpark South
Subunit 1d consists of two small land parcels comprising 0.97 ha
(2.4 ac) in Guadalupe County, New Mexico. This subunit lies south of
the City of Santa Rosa ballpark, on an undeveloped portion of City of
Santa Rosa land. Special management considerations or protection may be
required in Subunit 1d to address ground and surface water depletion,
as well as native and nonnative invasion. Such special management or
protection may include conservation efforts to ensure water
availability, along with decreasing competition with native and
nonnative plants via prescribed burning and mechanical treatments, if
necessary. Special management or protection may also include watershed/
wetland restoration efforts. Other special management considerations or
protection may be required to address localized stressors from
herbicide use and mowing in recreational areas.
Subunit 1e: State Highway 91 South
Subunit 1e consists of 6.7 ha (16.5 ac) in Guadalupe County, New
Mexico. This subunit lies south of State Highway 91 on City of Santa
Rosa and private lands. Special management considerations or protection
may be required in Subunit 1e to address ground and surface water
depletion, as well as native and nonnative plant invasion. Such special
management or protection may include conservation efforts to ensure
water availability, along with decreasing competition with native and
nonnative plants via prescribed burning and mechanical treatments, if
necessary. Special management or protection may also include watershed/
wetland restoration efforts.
Subunit 1f: Perch Lake
Subunit 1f consists of 1.9 ha (4.6 ac) in Guadalupe County, New
Mexico. This subunit includes most of the shores of Perch Lake on City
of Santa Rosa property, extending south into an undeveloped area.
Special management considerations or protection may be required in
Subunit 1f to address ground and surface water depletion, as well as
native and nonnative plant invasion. Such special management or
protection may include conservation efforts to ensure water
availability, along with decreasing competition with native and
nonnative plants via prescribed burning and mechanical treatments, if
necessary. Special management or protection may also include watershed/
wetland restoration efforts. Other special management considerations or
protection may be required to address localized stressors from
herbicide use and mowing in areas around Perch Lake, which is located
inside the subunit.
Subunit 1g: Sheehan Trust
Subunit 1g consists of 2.4 ha (6.0 ac) in Guadalupe County, New
Mexico. This subunit lies east of River Road and the Pecos River on
privately owned lands, which are currently held in a land trust.
Special management considerations or protection may be required in
Subunit 1g to address ground and surface water depletion, as well as
native and nonnative plant invasion. Such special management or
protection may include conservation efforts to ensure water
availability, along with decreasing competition with native and
nonnative plants via prescribed burning and mechanical treatments, if
necessary. Special management or protection may also include watershed/
wetland restoration efforts. As this property was formerly grazed and
may be grazed again in the future, special management or protection may
be required to address impacts of livestock grazing as appropriate.
Subunit 1h: Freeman Property
Subunit 1h consists of five small parcels of land comprising 1.09
ha (2.68 ac) in Guadalupe County, New Mexico. This subunit lies west of
Subunit 1g on City of Santa Rosa property and privately owned lands.
Special management considerations or protection may be required in
Subunit 1h to address ground and surface water depletion, as well as
native and nonnative plant invasion. Such special management or
protection may include conservation efforts to ensure water
availability, along with decreasing competition with native and
nonnative plants via prescribed burning and mechanical treatments, if
necessary. Special management or protection may also include watershed/
wetland restoration efforts.
Unit 2: Alamosa Springs
Unit 2 consists of 1.58 ha (3.9 ac) in Socorro County, New Mexico.
This unit lies mostly north of Forest Road 140 along Alamosa Creek, on
privately owned land. This unit entirely overlaps with occupied habitat
for the federally endangered Alamosa springsnail and federally
threatened Chiricahua leopard frog. Special management considerations
or protection may be required in this unit to address ground and
surface water depletion, water quality, soil alkalinity, and native and
nonnative plant invasion. Such special management or protection may
include conservation efforts to ensure water availability, to protect
ground water and soil from contaminants during mining activities, and
to decrease competition with native and nonnative plants via prescribed
burning and mechanical treatments, if necessary. Special management or
protection may also include watershed/wetland restoration efforts.
Unit 3: Bitter Lake
Unit 3 consists of two subunits comprising 19.0 ha (47 ac) in
Chaves County, New Mexico, on Bitter Lake National Wildlife Refuge
(NWR). Unit 3 is entirely managed by the U.S. Fish and Wildlife
Service. This unit overlaps with occupied habitat for the federally
endangered Koster's springsnail, Noel's amphipod, Roswell springsnail,
and least tern. The unit also overlaps with designated critical habitat
for the Koster's springsnail, Noel's amphipod, Roswell springsnail, and
Pecos sunflower.
Subunit 3a: NWR Unit 5
Subunit 3a consists of 3.16 ha (7.8 ac) in Chaves County, New
Mexico, within Wetland Management Unit 5 on Bitter Lake NWR. Special
management considerations or protection may be required in Subunit 3a
to address ground and surface water depletion, water quality, soil
alkalinity, and native and nonnative plant invasion. Such special
management or protection may include conservation efforts to ensure
water availability, spill prevention and groundwater protection during
oil and gas development, and decreasing competition with native and
nonnative plants via prescribed burning and mechanical and herbicide
treatments, if necessary. Special management or protection may also
include watershed/wetland restoration efforts.
Subunit 3b: NWR Unit 6
Subunit 3b consists of 15.9 ha (39.2 ac) in Chaves County, New
Mexico, within Wetland Management Unit 6 on Bitter Lake NWR. Special
management considerations or protection may be required in Subunit 3b
to address
[[Page 61480]]
ground and surface water depletion, water quality, soil alkalinity, and
native and nonnative plant invasion. Such special management or
protection may include conservation efforts to ensure water
availability, spill prevention and groundwater protection during oil
and gas development, and decreasing competition with native and
nonnative plants via prescribed burning and mechanical and herbicide
treatments, if necessary. Special management or protection may also
include watershed/wetland restoration efforts.
Unit 4: Tularosa Creek
Unit 4 consists of 0.65 ha (1.6 ac) in Otero County, New Mexico.
This unit lies along Indian Service Route 10, north of Tularosa Creek,
on land owned by the Mescalero Apache Tribe. Special management
considerations or protection may be required in this unit to address
ground and surface water depletion, as well as native and nonnative
plant invasion. Such special management or protection may include
conservation efforts to ensure water availability, along with
decreasing competition with native and nonnative plants via prescribed
burning and mechanical treatments, if necessary. Special management or
protection may also include watershed/wetland restoration efforts.
Unit 5: La Luz Canyon
Unit 5 consists of 0.01 ha (0.03 ac) in Otero County, New Mexico,
on the Lincoln National Forest. This unit lies north of La Luz Canyon
Road, along La Luz Creek, on lands managed by the U.S. Forest Service.
Special management considerations or protection may be required in this
unit to address ground and surface water depletion, as well as native
and nonnative plant invasion. Such special management or protection may
include conservation efforts to ensure water availability, along with
decreasing competition with native and nonnative plants via prescribed
burning and mechanical treatments, if necessary. Special management or
protection may also include watershed/wetland restoration efforts. As
this property has the potential to be grazed, special management or
protection may be required to address impacts of livestock grazing as
appropriate.
Unit 6: Silver Springs
Unit 6 consists of 0.62 ha (1.53 ac) in Otero County, New Mexico.
This unit lies east of State Highway 224, along Silver Springs Creek.
This unit contains land on the Lincoln National Forest, which is
managed by the U.S. Forest Service, and land owned by the Mescalero
Apache Tribe. This unit overlaps with occupied habitat and critical
habitat for the federally endangered New Mexico meadow jumping mouse.
Special management considerations or protection may be required in this
unit to address ground and surface water depletion, as well as native
and nonnative plant invasion. Such special management or protection may
include conservation efforts to ensure water availability, along with
decreasing competition with native and nonnative plants via prescribed
burning and mechanical treatments, if necessary. Special management or
protection may also include watershed/wetland restoration efforts. As
this property has the potential to be grazed, special management or
protection may be required to address impacts of livestock grazing as
appropriate.
Unit 7: Karr/Haynes Canyon
Unit 7 consists of three subunits that comprise 1.79 ha (4.42 ac)
in Otero County, New Mexico. This unit consists of privately owned
lands.
Subunit 7a: Haynes Canyon Road
Subunit 7a consists of 0.008 ha (0.02 ac) in Otero County, New
Mexico. This subunit lies south of Haynes Canyon Road on privately
owned lands. Special management considerations or protection may be
required in Subunit 7a to address ground and surface water depletion,
as well as native and nonnative plant invasion. Such special management
or protection may include conservation efforts to ensure water
availability, along with decreasing competition with native and
nonnative plants via prescribed burning and mechanical treatments, if
necessary. Special management or protection may also include watershed/
wetland restoration efforts. As this property has the potential to be
grazed, special management or protection may be required to address
impacts of livestock grazing as appropriate.
Subunit 7b: Karr Canyon Road
Subunit 7b consists of two small parcels comprising 0.73 ha (1.8
ac) in Otero County, New Mexico. This subunit lies along either side of
Karr Canyon Road on privately owned lands. Special management
considerations or protection may be required in Subunit 7b to address
ground and surface water depletion, as well as native and nonnative
plant invasion. Such special management or protection may include
conservation efforts to ensure water availability, along with
decreasing competition with native and nonnative plants via prescribed
burning and mechanical treatments, if necessary. Special management or
protection may also include watershed/wetland restoration efforts. As
this property has the potential to be grazed, special management or
protection may be required to address impacts of livestock grazing as
appropriate.
Subunit 7c: Raven Road
Subunit 7c consists of two small parcels comprising 1.05 ha (2.6
ac) in Otero County, New Mexico. This subunit lies along either side of
Raven Road on privately owned lands. Special management considerations
or protection may be required in Subunit 7c to address ground and
surface water depletion, as well as native and nonnative plant
invasion. Such special management or protection may include
conservation efforts to ensure water availability, along with
decreasing competition with native and nonnative plants via prescribed
burning and mechanical treatments, if necessary. Special management or
protection may also include watershed/wetland restoration efforts. As
this property has the potential to be grazed, special management or
protection may be required to address impacts of livestock grazing as
appropriate.
Unit 8: Blue Springs
Unit 8 consists of 14.04 ha (34.7 ac) in Eddy County, New Mexico.
This unit lies along a small tributary north of the Black River on
privately owned land. This unit overlaps with occupied habitat for the
federally endangered Pecos gambusia. Special management considerations
or protection may be required in this unit to address ground and
surface water depletion, water quality, soil alkalinity, and native and
nonnative plant invasion. Such special management or protection may
include conservation efforts to ensure water availability, spill
prevention and groundwater protection during oil and gas development,
and decreasing competition with native and nonnative plants via
prescribed burning and mechanical treatments, if necessary. Special
management or protection may also include watershed/wetland restoration
efforts.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened
[[Page 61481]]
species or result in the destruction or adverse modification of
designated critical habitat of such species. In addition, section
7(a)(4) of the Act requires Federal agencies to confer with the Service
on any agency action which is likely to jeopardize the continued
existence of any species proposed to be listed under the Act or result
in the destruction or adverse modification of proposed critical
habitat.
We published a final regulation with a revised definition of
destruction or adverse modification on August 27, 2019 (84 FR 44976).
Destruction or adverse modification means a direct or indirect
alteration that appreciably diminishes the value of critical habitat as
a whole for the conservation of a listed species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat--and actions
on State, tribal, local, or private lands that are not federally
funded, authorized, or carried out by a Federal agency--do not require
section 7 consultation.
Compliance with the requirements of section 7(a)(2) is documented
through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood
of jeopardizing the continued existence of the listed species and/or
avoid the likelihood of destroying or adversely modifying critical
habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
formal consultation on previously reviewed actions. These requirements
apply when the Federal agency has retained discretionary involvement or
control over the action (or the agency's discretionary involvement or
control is authorized by law) and, subsequent to the previous
consultation, we have listed a new species or designated critical
habitat that may be affected by the Federal action, or the action has
been modified in a manner that affects the species or critical habitat
in a way not considered in the previous consultation. In such
situations, Federal agencies sometimes may need to request reinitiation
of consultation with us, but the regulations also specify some
exceptions to the requirement to reinitiate consultation on specific
land management plans after subsequently listing a new species or
designating new critical habitat. See the regulations for a description
of those exceptions.
Application of the ``Adverse Modification'' Standard
The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat as a
whole for the conservation of the listed species. As discussed above,
the role of critical habitat is to support physical or biological
features essential to the conservation of a listed species and provide
for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate 7(a)(2)
of the Act by destroying or adversely modifying such designation.
Activities that the Services may, during a consultation under
section 7(a)(2) of the Act, find are likely to destroy or adversely
modify critical habitat include, but are not limited to:
(1) Actions that would diminish permanent root saturation. Such
activities could include, but are not limited to, water diversions and
water withdrawals for agricultural, mineral mining, or urban purposes.
These activities could reduce Wright's marsh thistle's water
availability, and increase its competition for water resources, thereby
depleting a resource necessary for the plant's normal growth and
survival.
(2) Actions that would alter the alkalinity of the soil. Such
activities could include, but are not limited to, oil and gas
development and mining. These activities could result in significant
ground disturbance that could alter the chemical and physical
properties of the soil.
(3) Actions that would diminish the availability of full sunlight.
Such activities could include, but are not limited to, vegetation
management that encourages growth of competing native and nonnative
species. These activities could lead to habitat encroachment resulting
in a decreased availability of sunlight.
(4) Actions that would decrease the diversity and abundance of
floral resources and pollinators. Such activities could include, but
are not limited to, the use of pesticides and herbicides, livestock
grazing, and oil and gas development and mining. These activities could
lead to direct mortality of pollinators and diminish the floral
resources available to pollinators.
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that: ``The Secretary shall not designate as critical habitat
any lands or other geographical areas owned or controlled by the
Department of Defense (DoD), or designated for its use, that are
subject to an integrated natural resources management plan (INRMP)
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the
Secretary determines in writing that such plan provides a benefit to
the species for which critical habitat is proposed for designation.''
There are no DoD lands with a
[[Page 61482]]
completed INRMP within the proposed critical habitat designation.
Exclusions
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if he determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless he determines, based
on the best scientific data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. In making that determination, the statute on its face, as well
as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor.
The first sentence in section 4(b)(2) of the Act requires that we
take into consideration the economic, national security, or other
relevant impacts of designating any particular area as critical
habitat. We describe below the process that we undertook for taking
into consideration each category of impacts and our analyses of the
relevant impacts.
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate the impacts that a specific critical habitat
designation may have on restricting or modifying specific land uses or
activities for the benefit of the species and its habitat within the
areas proposed. We then identify which conservation efforts may be the
result of the species being listed under the Act versus those
attributed solely to the designation of critical habitat for this
particular species. The probable economic impact of a proposed critical
habitat designation is analyzed by comparing scenarios both ``with
critical habitat'' and ``without critical habitat.''
The ``without critical habitat'' scenario represents the baseline
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource
users potentially affected by the designation of critical habitat
(e.g., under the Federal listing as well as other Federal, State, and
local regulations). The baseline, therefore, represents the costs of
all efforts attributable to the listing of the species under the Act
(i.e., conservation of the species and its habitat incurred regardless
of whether critical habitat is designated). The ``with critical
habitat'' scenario describes the incremental impacts associated
specifically with the designation of critical habitat for the species.
The incremental conservation efforts and associated impacts would not
be expected without the designation of critical habitat for the
species. In other words, the incremental costs are those attributable
solely to the designation of critical habitat, above and beyond the
baseline costs. These are the costs we use when evaluating the benefits
of inclusion and exclusion of particular areas from the final
designation of critical habitat should we choose to conduct a
discretionary 4(b)(2) exclusion analysis.
For this particular designation, we developed an incremental
effects memorandum (IEM) considering the probable incremental economic
impacts that may result from this proposed designation of critical
habitat. The information contained in our IEM, along with the SSA, was
then used to develop a screening analysis of the probable effects of
the designation of critical habitat for Wright's marsh thistle
(Industrial Economics, Inc. 2018). We began by conducting a screening
analysis of the proposed designation of critical habitat in order to
focus our analysis on the key factors that are likely to result in
incremental economic impacts. The purpose of the screening analysis is
to filter out the geographic areas in which the critical habitat
designation is unlikely to result in probable incremental economic
impacts. In particular, the screening analysis considers baseline costs
(i.e., absent critical habitat designation) and includes probable
economic impacts where land and water use may be subject to
conservation plans, land management plans, best management practices,
or regulations that would protect the habitat area as a result of the
Federal listing status of the species. The screening analysis filters
out particular areas of critical habitat that are already subject to
such protections and are, therefore, unlikely to incur incremental
economic impacts. Ultimately, the screening analysis allows us to focus
our analysis on evaluating the specific areas or sectors that may incur
probable incremental economic impacts as a result of the designation.
The screening analysis also assesses whether units are unoccupied by
the species and may require additional management or conservation
efforts as a result of the critical habitat designation for the
species, which may incur incremental economic impacts. This screening
analysis, combined with the information contained in our IEM, is what
we consider our draft economic analysis of the proposed critical
habitat designation for Wright's marsh thistle and is summarized in the
narrative below.
Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to
assess the costs and benefits of available regulatory alternatives in
quantitative (to the extent feasible) and qualitative terms. Consistent
with the E.O. regulatory analysis requirements, our effects analysis
under the Act may take into consideration impacts to both directly and
indirectly affected entities, where practicable and reasonable. If
sufficient data are available, we assess to the extent practicable the
probable impacts to both directly and indirectly affected entities. As
part of our screening analysis, we considered the types of economic
activities that are likely to occur within the areas likely affected by
the critical habitat designation.
In our evaluation of the probable incremental economic impacts that
may result from the proposed designation of critical habitat for
Wright's marsh thistle, first we identified, in the IEM dated March 2,
2018, probable incremental economic impacts associated with the
following categories of activities: (1) Water quantity/supply, (2) oil
and gas development and mining, and (3) livestock grazing. We
considered each industry or category individually. Additionally, we
considered whether their activities have any Federal involvement.
Critical habitat designation generally will not affect activities that
do not have any Federal involvement; under the Act, designation of
critical habitat only affects activities conducted, funded, permitted,
or authorized by Federal agencies. If we finalize the listing of
Wright's marsh thistle, in areas where the species is present, Federal
agencies would already be required to consult with the Service under
section 7 of the Act on activities they fund, permit, or implement that
may affect the thistle. If we finalize this proposed critical habitat
designation, consultations to avoid the destruction or adverse
modification of critical habitat would be incorporated into the
existing consultation process.
[[Page 61483]]
In our IEM, we attempted to clarify the distinction between the
effects that will result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for Wright's
marsh thistle's critical habitat. Because the designation of critical
habitat for Wright's marsh thistle is being proposed concurrently with
the listing, it has been our experience that it is more difficult to
discern which conservation efforts are attributable to the species
being listed and those which will result solely from the designation of
critical habitat. However, the following specific circumstances in this
case help to inform our evaluation: (1) The essential physical or
biological features identified for critical habitat are the same
features essential for the life requisites of the species and (2) any
actions that would result in sufficient harm or harassment to
constitute jeopardy to Wright's marsh thistle would also likely
adversely affect the essential physical or biological features of
critical habitat. The IEM outlines our rationale concerning this
limited distinction between baseline conservation efforts and
incremental impacts of the designation of critical habitat for this
species. This evaluation of the incremental effects has been used as
the basis to evaluate the probable incremental economic impacts of this
proposed designation of critical habitat.
The Service is proposing to designate 64.3 ha (159 ac) across five
New Mexico counties as critical habitat for Wright's marsh thistle. The
Service has divided the proposed critical habitat into eight units,
with some further divided into subunits. All eight units are considered
occupied because they contain reproducing populations of the thistle.
We are not proposing to designate any units of unoccupied habitat.
Approximately 29 percent of the proposed designation is located on
Federal lands, 20 percent is on State-owned lands, and 1 percent on
land owned by the Mescalero Tribe. Fifteen percent of proposed lands
are owned by the City of Santa Rosa, and 35 percent are privately
owned. In these areas, any actions that may affect the species or its
habitat would also affect designated critical habitat, and it is
unlikely that any additional conservation efforts would be recommended
to address the adverse modification standard over and above those
recommended as necessary to avoid jeopardizing the continued existence
of Wright's marsh thistle. Therefore, the potential incremental
economic effects of the critical habitat designation are expected to be
limited to administrative costs.
The entities most likely to incur incremental costs are parties to
section 7 consultations, including Federal action agencies and, in some
cases, third parties, most frequently State agencies or municipalities.
Our analysis of economic impacts makes the following assumptions about
consultation activity over the next 10 years, most of which are more
likely to overstate than understate potential impacts due to the
history of biological assessments and implementation of project
conservation measures by the action agencies. The analysis assumes that
approximately five section 7 consultations will occur annually in the
designated critical habitat, across all eight units, based on the
previous consultation history in the area. Most of these are
anticipated to occur in areas with Federal lands, including units 3, 5,
and 6, as well as the large unit 1.
This may overstate the number of consultations that will occur
given available information on forecast activity. As stated above, we
anticipate that conservation efforts needed to avoid adverse
modification are likely to be the same as those needed to avoid impacts
to the species itself. As such, costs of critical habitat designation
for Wright's marsh thistle are anticipated to be limited to
administrative costs. We anticipate that the incremental administrative
costs of addressing adverse modification of critical habitat for the
species in a section 7 consultation will be minor.
The incremental administrative burden resulting from the
designation of critical habitat for Wright's marsh thistle, based on
the anticipated annual number of consultations and associated
consultation costs, is not expected to exceed $25,000 in most years.
The designation is unlikely to trigger additional requirements under
State or local regulations. Furthermore, the designation is quite
small, limited to 64.3 ha (159 ac) in total, with the local government,
municipal, and private lands limited to 31.33 ha (77.4 ac); therefore,
the designation is not expected to have significant perceptional
effects. Because the designation is not expected to result in
incremental conservation efforts for the species, the designation is
also unlikely to measurably increase the probability that the species
will be conserved, and benefits are also unlikely to exceed $25,000 in
a given year. In our DEA, we did not identify any ongoing or future
actions that would warrant additional recommendations or project
modifications to avoid adversely modifying critical habitat above those
we would recommend for avoiding jeopardy to the species, and we
anticipate minimal change in management at Bitter Lake NWR and Lincoln
National Forest due to the designation of critical habitat for Wright's
marsh thistle.
We are soliciting data and comments from the public on the DEA, as
well as all aspects of the proposed rule and our required
determinations. During the development of a final designation, we will
consider any additional economic impact information we receive during
the public comment period to determine whether any specific areas
should be excluded from the final critical habitat designation under
authority of section 4(b)(2) and our implementing regulations at 50 CFR
424.19. In particular, we may exclude an area from critical habitat if
we determine that the benefits of excluding the area outweigh the
benefits of including the area, provided the exclusion will not result
in the extinction of this species.
Consideration of National Security Impacts
In preparing this proposal, we have determined that the lands
within the proposed designation of critical habitat for Wright's marsh
thistle are not owned, managed, or used by the DoD or Department of
Homeland Security, and, therefore, we anticipate no impact on national
security or homeland security. However, during the development of a
final designation we will consider any additional information received
through the public comment period on the impacts of the proposed
designation on national security or homeland security to determine
whether any specific areas should be excluded from the final critical
habitat designation under authority of section 4(b)(2) and our
implementing regulations at 50 CFR 424.19.
Consideration of Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors including whether there are
permitted conservation plans covering the species in the area such as
Habitat Conservation Plans, safe harbor agreements, or candidate
conservation agreements with assurances, or whether there are non-
permitted conservation agreements and partnerships that would be
encouraged by designation of, or exclusion from, critical habitat. In
addition, we look at the existence of tribal conservation
[[Page 61484]]
plans and partnerships and consider the government-to-government
relationship of the United States with tribal entities. We also
consider any social impacts that might occur because of the
designation.
In preparing this proposal, we have determined that there are
currently no permitted conservation plans or other management plans for
Wright's marsh thistle. Only 0.88 ha (2.18 ac) of proposed critical
habitat lands for Wright's marsh thistle belong to the Mescalero Apache
Tribe; we have initiated coordination with the Tribe regarding the
proposed critical habitat designation and will continue to offer
government-to-government consultation with them throughout development
of the final rulemaking. We anticipate no impact on tribal lands,
partnerships, or permitted management plans from this proposed critical
habitat designation. There are no adequate partnerships, Tribal
partnerships, management, or protection afforded by cooperative
management efforts sufficient to provide for the conservation of the
species. There are no areas whose exclusion would result in
conservation, or in the continuation, strengthening, or encouragement
of partnerships.
Summary of Exclusions
After analyzing these potential impacts, we are not considering any
exclusions at this time from the proposed designation under section
4(b)(2) of the Act based on economic impacts, national security
impacts, or other relevant impacts such as partnerships, management, or
protection afforded by cooperative management efforts. All areas
proposed for critical habitat will benefit from additional regulation
for the protection from destruction or adverse modification as a result
of actions with a Federal nexus. All areas would see educational
benefits of mapping essential habitat for recovery of the listed
species. During the development of a final designation, we will
consider any additional information received through the public comment
period regarding other relevant impacts to determine whether any
specific areas should be excluded from the final critical habitat
designation under authority of section 4(b)(2) and our implementing
regulations at 50 CFR 424.19.
Required Determinations
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
Regulatory Planning and Review--Executive Orders 12866 and 13563
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has waived their review regarding
their significance determination of this proposed rule.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act--5 U.S.C. 601 et seq.
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service-sector businesses with less than $5 million in
annual sales, general and heavy construction businesses with less than
$27.5 million in annual business, special trade contractors doing less
than $11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
The Service's current understanding of the requirements under the
RFA, as amended, and following recent court decisions, is that Federal
agencies are only required to evaluate the potential incremental
impacts of rulemaking on those entities directly regulated by the
rulemaking itself and are, therefore, not required to evaluate the
potential impacts to indirectly regulated entities. The regulatory
mechanism through which critical habitat protections are realized is
section 7 of the Act, which requires Federal agencies, in consultation
with the Service, to ensure that any action authorized, funded, or
carried out by the agency is not likely to destroy or adversely modify
critical habitat. Therefore, under section 7, only Federal action
agencies are directly subject to the specific regulatory requirement
(avoiding destruction and adverse modification) imposed by critical
habitat designation. Consequently, it is our position that only Federal
action agencies will be
[[Page 61485]]
directly regulated by this designation. There is no requirement under
RFA to evaluate the potential impacts to entities not directly
regulated. Moreover, Federal agencies are not small entities.
Therefore, because no small entities are directly regulated by this
rulemaking, the Service certifies that, if made final, the proposed
critical habitat designation will not have a significant economic
impact on a substantial number of small entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if made final, the proposed
critical habitat designation would not have a significant economic
impact on a substantial number of small business entities. Therefore,
an initial regulatory flexibility analysis is not required.
Reducing Regulation and Controlling Regulatory Costs--Executive Order
13771
We do not believe this proposed rule is an E.O. 13771 (``Reducing
Regulation and Controlling Regulatory Costs'') (82 FR 9339, February 3,
2017) regulatory action because we believe this rule is not significant
under E.O. 12866; however, the Office of Information and Regulatory
Affairs has waived their review regarding their E.O. 12866 significance
determination of this proposed rule.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. A significant energy action is one that promulgates,
or is expected to lead to the promulgation of, a final rule that is
both (1) a significant regulatory action under E.O. 12866, and (2)
likely to have a significant adverse effect on the supply,
distribution, or use of energy, or a final rule that is designated by
the Administrator of OIRA as a significant energy action. OIRA has
determined that this rule is not significant. Further, in our economic
analysis, we did not find that the designation of this proposed
critical habitat will have an annual effect on the economy of $100
million or more or significantly affect energy supplies, distribution,
or use due to the lack of any energy supply or distribution lines
within the proposed critical habitat designation. Therefore, this
action is not a significant energy action, and no Statement of Energy
Effects is required.
Unfunded Mandates Reform Act--2 U.S.C. 1501 et seq.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule would not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) This rule may have a small perceptional effect on the City of
Santa Rosa, New Mexico, due to the designation of critical habitat. In
practice, small governments like Santa Rosa are affected by critical
habitat only to the extent that any programs having Federal funds,
permits, or other authorized activities must ensure that their actions
will not adversely affect the critical habitat. Therefore, a Small
Government Agency Plan is not required. However, we did notify the City
of Santa Rosa of the proposed critical habitat with the publication of
this proposed rule, and we invite their comments on the proposal with
regard to any potential effects.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for Wright's marsh thistle in a takings implications
assessment. The Act does not authorize the Service to regulate private
actions on private lands or confiscate private property as a result of
critical habitat designation. Designation of critical habitat does not
affect land ownership, or establish any closures, or restrictions on
use of or access to the designated areas. Furthermore, the designation
of critical habitat does not affect landowner actions that do not
require Federal funding or permits, nor does it preclude development of
habitat conservation programs or issuance of incidental take permits to
permit actions that do require Federal funding or permits to go
forward. However, Federal agencies are prohibited from carrying out,
funding, or authorizing actions that would destroy or adversely modify
critical habitat. A takings implications assessment has been completed
and concludes that, if adopted, this designation of critical habitat
for Wright's marsh thistle would not pose significant takings
implications for lands within or affected by the designation.
[[Page 61486]]
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this proposed rule does
not have significant Federalism effects. A federalism summary impact
statement is not required. In keeping with Department of the Interior
and Department of Commerce policy, we requested information from, and
coordinated development of this proposed critical habitat designation
with, appropriate State resource agencies in New Mexico. From a
federalism perspective, the designation of critical habitat directly
affects only the responsibilities of Federal agencies. The Act imposes
no other duties with respect to critical habitat, either for States and
local governments, or for anyone else. As a result, the rule would not
have substantial direct effects either on the States, or on the
relationship between the national government and the States, or on the
distribution of powers and responsibilities among the various levels of
government. The designation may have some benefit to these governments
because the areas that contain the features essential to the
conservation of the species are more clearly defined, and the physical
or biological features of the habitat necessary to the conservation of
the species are specifically identified. This information does not
alter where and what federally sponsored activities may occur.
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We have proposed designating
critical habitat in accordance with the provisions of the Act. To
assist the public in understanding the habitat needs of the species,
the rule identifies the elements of physical or biological features
essential to the conservation of the species. The designated areas of
critical habitat are presented on maps, and the rule provides several
options for the interested public to obtain more detailed location
information, if desired.
Paperwork Reduction Act of 1995--44 U.S.C. 3501 et seq.
This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not
required. We may not conduct or sponsor and you are not required to
respond to a collection of information unless it displays a currently
valid OMB control number.
National Environmental Policy Act--42 U.S.C. 4321 et seq.
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating
critical habitat under the Act. We published a notice outlining our
reasons for this determination in the Federal Register on October 25,
1983 (48 FR 49244). This position was upheld by the U.S. Court of
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). However, when the
range of the species includes States within the Tenth Circuit, such as
that of the Wright's marsh thistle, under the Tenth Circuit ruling in
Catron County Board of Commissioners v. U.S. Fish and Wildlife Service,
75 F.3d 1429 (10th Cir. 1996), we undertake a NEPA analysis for
critical habitat designation. We invite the public to comment on the
extent to which this proposed regulation may have a significant impact
on the human environment, or fall within one of the categorical
exclusions for actions that have no individual or cumulative effect on
the quality of the human environment. We will complete our analysis, in
compliance with NEPA, before finalizing this proposed rule.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes.
There are tribal lands included in the proposed designation of
critical habitat for Wright's marsh thistle. Using the criteria
described above under Criteria Used To Identify Critical Habitat, we
have determined that some tribal lands that are occupied by the species
contain the features essential for the conservation the species. Only
0.88 ha (2.18 ac) of proposed critical habitat lands belong to the
Mescalero Apache Tribe. We have begun government-to-government
consultation with the Tribe, and we will continue to consult with the
Tribe throughout the public comment period on this proposed rule and
during development of the final designation of critical habitat for the
species. We will consider Tribal lands for exclusion from the final
critical habitat designation to the extent consistent with the
requirements of 4(b)(2) of the Act. The Mescalero Apache Tribe is the
main tribe whose lands and trust resources may be affected by this
proposed rule. There may be some other tribes with trust resources in
the area but we have no specific documentation of this. We sent a
notification letter to the Mescalero Apache Tribe on April 6, 2014,
describing the exclusion process under section 4(b)(2) of the Act, and
we have engaged in conversations with the Tribe about the proposal to
the extent possible without disclosing predecisional information via
requests for additional information in September 2016 and January 2018.
We will attempt to schedule a meeting with the Tribe, as well as other
interested parties, shortly after publication of this proposed rule so
that we can give them as much time as possible to comment.
References Cited
A complete list of references cited in this proposed rule is
available on the internet at http://www.regulations.gov and upon
request from the New Mexico Ecological Services Field Office (see For
Further Information Contact).
[[Page 61487]]
Authors
The primary authors of this proposed rule are the staff members of
the New Mexico Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
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.
0
2. Amend Sec. 17.12(h) by adding an entry for ``Cirsium wrightii'' to
the List of Endangered and Threatened Plants in alphabetical order
under FLOWERING PLANTS to read as set forth below:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Scientific name Common name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
Flowering Plants
* * * * * * *
Cirsium wrightii................ Wright's marsh Wherever found.... T [Federal Register
thistle. citation when
published as a final
rule]; 50 CFR
17.73(a);\4d\ 50 CFR
17.96(a).\CH\
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Add Sec. 17.73 to read as follows:
Sec. 17.73 Special rules--flowering plants.
(a) Cirsium wrightii (Wright's marsh thistle).
(1) Prohibitions. The following prohibitions apply to the Wright's
marsh thistle except as provided under paragraph (a)(2) of this
section:
(i) Remove and reduce to possession from areas under Federal
jurisdiction, as set forth at Sec. 17.61(c)(1) for endangered plants.
(ii) Maliciously damage or destroy the species on any areas under
Federal jurisdiction, or remove, cut, dig up, or damage or destroy the
species on any other area in knowing violation of any State law or
regulation or in the course of any violation of a State criminal
trespass law, as set forth at section 9(a)(2)(B) of the Act.
(2) Exceptions from prohibitions. The following exceptions from
prohibitions apply to the Wright's marsh thistle:
(i) The prohibitions described in paragraph (a)(1) of this section
do not apply to activities conducted as authorized by a permit issued
in accordance with the provisions set forth at Sec. 17.72.
(ii) Any employee or agent of the Service or of a State
conservation agency that is operating a conservation program pursuant
to the terms of a cooperative agreement with the Service in accordance
with section 6(c) of the Act, who is designated by that agency for such
purposes, may, when acting in the course of official duties, remove and
reduce to possession from areas under Federal jurisdiction members of
the Wright's marsh thistle that are covered by an approved cooperative
agreement to carry out conservation programs.
(b) [Reserved]
0
4. In Sec. 17.96, amend paragraph (a) by adding an entry for ``Cirsium
wrightii (Wright's marsh thistle)'' in alphabetical order under Family
Asteraceae to read as follows:
Sec. 17.96 Critical habitat--plants.
(a) Flowering plants.
* * * * *
Family Asteraceae: Cirsium wrightii (Wright's marsh thistle)
(1) Critical habitat units are depicted for Chavez, Eddy,
Guadalupe, Otero, and Socorro Counties, New Mexico, on the maps in this
entry.
(2) Within these areas, the physical or biological features
essential to the conservation of Wright's marsh thistle consist of the
following components:
(i) Water-saturated soils with surface or subsurface water flow
that allows permanent root saturation and seed germination;
(ii) Alkaline soils;
(iii) Full sunlight; and
(iv) Diverse floral communities to attract pollinators.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
the effective date of this rule.
(4) Critical habitat map units. Data layers defining map units were
created using the latest imagery available through Esri (https://www.esri.com/en-us/home). The actual source is DigitalGlobe and the
year of the imagery was 2016. Critical habitat units were then mapped
using ArcGIS ArcMap 10.4. All data are in North America Albers Equal
Area Conic projection, Datum North American 1983. The maps in this
entry, as modified by any accompanying regulatory text, establish the
boundaries of the critical habitat designation. The coordinates or plot
points or both on which each map is based are available to the public
at the Service's internet site at https://www.fws.gov/southwest/es/NewMexico/index.cfm, at http://www.regulations.gov under Docket No.
FWS-R2-ES-2018-0071, and at the field office responsible for this
designation. You may obtain field office location information by
contacting one of the Service regional offices, the addresses of which
are listed at 50 CFR 2.2.
(5) Note: Index map follows:
BILLING CODE 4333-15-P
[[Page 61488]]
[GRAPHIC] [TIFF OMITTED] TP29SE20.063
(6) Unit 1: Santa Rosa, Guadalupe County, New Mexico.
(i) General description: Unit 1 consists of 26.6 hectares (ha)
(65.7 acres (ac)) in Guadalupe County, New Mexico, and is composed of
lands in State (12.65 ha (31.2 ac)), City of Santa Rosa (9.88 ha (24.4
ac)), and private (4.09 ha (10.16 ac)) ownership.
(ii) Maps of Unit 1 follow:
[[Page 61489]]
[GRAPHIC] [TIFF OMITTED] TP29SE20.064
[[Page 61490]]
[GRAPHIC] [TIFF OMITTED] TP29SE20.065
[[Page 61491]]
[GRAPHIC] [TIFF OMITTED] TP29SE20.066
(7) Unit 2: Alamosa Springs, Socorro County, New Mexico.
(i) General description: Unit 2 consists of 1.58 ha (3.9 ac) in
Socorro County, New Mexico, and is composed of lands in private
ownership.
(ii) Map of Unit 2 follows:
[[Page 61492]]
[GRAPHIC] [TIFF OMITTED] TP29SE20.067
(8) Unit 3: Bitter Lake, Chaves County, New Mexico.
(i) General description: Unit 3 consists of 19.0 ha (47.0 ac) in
Chaves County, New Mexico, and is composed of lands under Federal
management, specifically the U.S. Fish and Wildlife Service's Bitter
Lake National Wildlife Refuge.
(ii) Map of Unit 3 follows:
[[Page 61493]]
[GRAPHIC] [TIFF OMITTED] TP29SE20.068
(9) Unit 4: Tularosa Creek, Otero County, New Mexico.
(i) General description: Unit 4 consists of 0.65 ha (1.6 ac) in
Otero County, New Mexico, and is composed of lands in tribal ownership.
(ii) Map of Unit 4 follows:
[[Page 61494]]
[GRAPHIC] [TIFF OMITTED] TP29SE20.069
(10) Unit 5: La Luz Canyon, Otero County, New Mexico.
(i) General description: Unit 5 consists of 0.01 ha (0.03 ac) in
Otero County, New Mexico, and is composed of lands under Federal
management, specifically the U.S. Forest Service's Lincoln National
Forest.
(ii) Map of Unit 5 follows:
[[Page 61495]]
[GRAPHIC] [TIFF OMITTED] TP29SE20.070
(11) Unit 6: Silver Springs, Otero County, New Mexico.
(i) General description: Unit 6 consists of 0.62 ha (1.53 ac) in
Otero County, New Mexico, and is composed of lands under Federal
management (0.38 ha (0.95 ac)), specifically the U.S. Forest Service's
Lincoln National Forest, and tribal ownership (0.23 ha (0.58 ac)).
(ii) Map of Unit 6 follows:
[[Page 61496]]
[GRAPHIC] [TIFF OMITTED] TP29SE20.071
(12) Unit 7: Karr/Haynes Canyon, Otero County, New Mexico.
(i) General description: Unit 7 consists of 1.79 ha (4.42 ac) in
Otero County, New Mexico, and is composed of lands in private
ownership.
(ii) Map of Unit 7 follows:
[[Page 61497]]
[GRAPHIC] [TIFF OMITTED] TP29SE20.072
(13) Unit 8: Blue Springs, Eddy County, New Mexico.
(i) General description: Unit 8 consists of 14.04 ha (34.7 ac) in
Eddy County, New Mexico, and is composed of lands in private ownership.
(ii) Map of Unit 8 follows:
[[Page 61498]]
[GRAPHIC] [TIFF OMITTED] TP29SE20.073
* * * * *
Aurelia Skipwith,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2020-19337 Filed 9-28-20; 8:45 am]
BILLING CODE 4333-15-C