[Federal Register Volume 87, Number 23 (Thursday, February 3, 2022)]
[Rules and Regulations]
[Pages 6046-6063]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02010]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2019-0065; FF09E22000 FXES1113090FEDR 223]
RIN 1018-BE11
Endangered and Threatened Wildlife and Plants; Removing San
Benito Evening-Primrose (Camissonia benitensis) From the Federal List
of Endangered and Threatened Plants
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service or USFWS), are
removing San Benito evening-primrose (Camissonia benitensis), a plant
native to California, from the Federal List of Endangered and
Threatened Plants on the basis of recovery. This final rule is based on
a thorough review of the best available scientific and commercial
information, which indicates that the threats to the species have been
reduced or eliminated to the point that it has recovered and is no
longer in danger of extinction or likely to become in danger of
extinction in the foreseeable future. Therefore, the plant no longer
meets the definition of an endangered or threatened species under the
Endangered Species Act of 1973, as amended (Act).
DATES: This rule is effective March 7, 2022.
ADDRESSES: This final rule, the post-delisting monitoring plan, and
supporting documents are available on the internet at https://www.regulations.gov or at https://ecos.fws.gov.
In the Search box, enter FWS-R8-ES-2019-0065, which is the docket
number for this rulemaking. Then, click on the Search button. On the
resulting page, in the panel on the left side of the screen, under the
Document Type heading, click on the Final Rule box to locate this
document.
Document availability: The recovery plan, 5-year review summary,
and post-delisting monitoring plan referenced in this document are
available at https://www.regulations.gov under Docket No. FWS-R8-ES-
2019-0065.
FOR FURTHER INFORMATION CONTACT: Stephen P. Henry, Field Supervisor,
U.S. Fish and Wildlife Service, Ventura Fish and Wildlife Office, 2493
Portola Road, Suite B, Ventura, CA 93003; by telephone 805-644-1766.
Direct all questions or requests for additional information to: SAN
BENITO EVENING PRIMROSE QUESTIONS, to the address above (See
ADDRESSES). Individuals who are hearing-impaired or speech-impaired my
call the Federal Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, a species may warrant
removal (i.e., ``delisting'') from the Federal List of Endangered and
Threatened Plants if it no longer meets the definition of an endangered
species or a threatened species. Delisting a species can only be
completed by issuing a rule.
What this document does. We are removing San Benito evening-
primrose (Camissonia benitensis) from the Federal List of Endangered
and Threatened Plants based on its recovery. The prohibitions and
conservation measures provided by the Act, particularly through
sections 7 and 9, will no longer apply to the San Benito evening-
primrose.
The basis for our action. Under the Act, we may determine that a
species is an endangered species or a threatened species because of any
of five factors: (A) The present or threatened destruction,
modification, or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or
[[Page 6047]]
manmade factors affecting its continued existence. We have determined
that the threats to the species have been reduced or eliminated so that
San Benito evening-primrose no longer meets the definition of an
endangered or threatened species under the Act.
Under the Act and our implementing regulations at 50 CFR 424.11, we
may delist a species if the best available scientific and commercial
data indicate that: (1) The species is extinct; (2) the species does
not meet the definition of an endangered species or a threatened
species when considering the five factors listed above; or (3) the
listed entity does not meet the statutory definition of a species.
Here, we have determined that the San Benito evening-primrose should be
delisted because, based on an analysis of the five listing factors, it
has recovered and no longer meets the definition of an endangered
species or a threatened species.
Off-highway vehicle recreation, the greatest persistent threat to
the species, has been reduced to levels that no longer pose a
significant threat of extinction to San Benito evening-primrose or its
habitat. Additionally, the species is more wide-ranging and common than
originally known and occurs across a broader range of habitat types
(Bureau of Land Management (BLM) 2018, p. 32). The number of known
occurrences has increased from 9 to 79; the range of the species is now
known from 3 watersheds; and occupied habitat covers 63.2 acres (25.6
ha).
Peer review and public comment. We evaluated the species' needs,
current conditions, and future conditions to support our June 1, 2020,
proposed rule to delist the San Benito evening-primrose (85 FR 33060).
We sought comments from independent specialists to ensure that our
determination is based on scientifically sound data, assumptions, and
analyses. We invited these peer reviewers to comment on the proposed
rule and draft post-delisting monitoring plan. We considered all
comments and information we received during the public comment period
on the proposed rule and the draft post-delisting monitoring plan when
developing this final rule.
Previous Federal Actions
On February 12, 1985, we listed San Benito evening-primrose as a
threatened species (50 FR 5755-5759) based primarily on the threats
from motorized recreation and active gravel mining. Nine occurrences of
the plant were known at the time, ranging from only 10 to 100
individuals each (50 FR 5755). At the time of listing, we found that
designation of critical habitat was not prudent, and no further action
regarding critical habitat has been taken (50 FR 5757-5759).
A notice of the availability of a recovery plan for San Benito
evening-primrose was subsequently published on September 19, 2006 (71
FR 54837-54838) (Recovery Plan).
In 2009, the Service conducted a 5-year review (USFWS 2009, entire)
and found that the San Benito evening-primrose still met the definition
of a threatened species. In addition, we announced the initiation of
another 5-year review on June 18, 2018 (83 FR 28251-28254). On June 1,
2020, we proposed to delist the San Benito evening-primrose (85 FR
33060) and announced the availability of a draft post-delisting
monitoring plan. The June 1, 2020, proposed rule to remove San Benito
evening-primrose from the Federal List of Endangered and Threatened
Plants also serves as a 5-year review for the species.
Summary of Changes From the Proposed Rule and Post-Delisting Monitoring
Plan
We considered all comments and information we received during the
comment period for the proposed rule to delist San Benito evening-
primrose (85 FR 33060; June 1, 2020). This consideration resulted in
the following changes from the proposed rule in this final rule:
We made minor editorial changes and revised various
sections of the rule based on public and partner comments.
We reevaluated the climate change analysis with a range
more specific to San Benito evening-primrose.
We updated the population trend analysis with current
information and following comments from the BLM.
We updated off-highway vehicle (OHV) trespass information
with current data.
We updated total known occurrences with current data.
The post-delisting monitoring plan was revised in
partnership with the BLM.
Final Delisting Determination
Background
San Benito evening-primrose is a small, yellow-flowered, annual
species in the evening-primrose family (Onagraceae). The plant is
slender with narrowly elliptic leaves 0.3 inches (in) (7-20 millimeters
(mm)) in length and minutely serrate. The stem may be erect or
decumbent (lying on the ground with the extremity curving upward) and
ranges in height from 1.2 to 7.9 in (3-20 centimeters (cm)) with
branches widely spreading. Petals are 0.1 to 0.2 in (3.5 to 4 mm) and
may fade from yellow to reddish (Wagner 2012, pp. 925-929). San Benito
evening-primrose is autogamous (self-fertilizing) and produces seed
that persists for long periods of time, which creates well-established
seed banks where the species occurs (Taylor 1990, pp. 7-8).
San Benito evening-primrose is known only from the southeastern
portion of San Benito County, the western edge of Fresno County, and
the northeastern edge of Monterey County, largely within the New Idria
serpentinite mass (figure 1). Serpentine is a rock formed from ancient
volcanic activity that results in minerals with a greenish and brownish
appearance such as antigorite, lizardite, and chrysotile. The New Idria
serpentinite mass covers approximately 13,000 hectares (32,124 acres)
and is one of the largest serpentine formations in the southern Coast
Ranges of California (Rajakaruna et al. 2011, p. 698).
Average rainfall in areas occupied by San Benito evening-primrose
is 16-17 in (40-42 cm) annually with temperatures ranging from lows of
21 to 34 degrees Fahrenheit ([deg]F) (-6.7 to -1.1 degrees Celsius
([deg]C)) in the winter to highs of 90 to 100 [deg]F (32.2 to 37.8
[deg]C) in the summer (USFWS 2009, p. 8). San Benito evening-primrose
occurs across an elevation range from 1,929 ft (588 m) to 4,684 ft
(1,428 m). At the extremes of the elevation range, the minimum
precipitation may be as low as 15 in (38 cm) and as high as 20 in (51
cm) respectively (BLM 2020a, pp. 1-2). Occupied habitat of San Benito
evening-primrose occurs primarily on land managed by the Bureau of Land
Management (BLM) (36.5 acres), as well as on private land (26.6 acres).
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San Benito evening-primrose occurs on alluvial terraces and upland
geologic transition zones containing sandy to gravelly serpentine
derived soil, but may also be found on greywacke, chert, and syenite
derived soils (Raven 1969, pp. 332-333, Taylor 1990, pp. 24-36, 39-42,
BLM 2018, pp. 17-19). Alluvial terrace habitat is characterized by
serpentine soils that are deeper and better developed than neighboring
slopes, generally flat (<3 degrees slope), and contain less than 25
percent cover of chaparral or woody vegetation (Taylor 1990, pp. 69,
71-72, USFWS 2006, p. 13). Geologic transition zone habitat is
characterized by sandy soils within uplands on slopes between 15
degrees and 60 degrees as well as rock outcrops and talus (Dick et al.
2014, p. 167, BLM 2018, p. 18). The transition
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zone that the habitat type refers to is the boundary between serpentine
masses and non-serpentine rock (BLM 2014, pp. 110-112). Generally,
alluvial habitat is found closer to water and in association with
Quercus durata (leather oak), Arctostaphylos spp. (manzanita), Pinus
jeffreyi (Jeffrey pine), P. sabiniana (bull pine), and P. coulteri
(Coulter pine). Geologic transition zone habitat is found far from
water and in association with Q. douglassii (blue oak), Juniperus
californicus (California juniper), and Q. berberidifolia (scrub oak)
(Dick et al. 2014, p. 167).
Within this rule, a single ``occurrence'' refers to areas where San
Benito evening-primrose has been mapped. Mapped areas within 0.25 mi
(0.4 km) of each other, but discontinuous, are considered a single
occurrence consisting of multiple sub-occurrences. The BLM has recorded
point data, in addition to polygon sub-occurrences for San Benito
evening-primrose, which are referred to as point locations in this
report. Point locations are mapped point features while sub-occurrences
are mapped polygon features.
The BLM first identified the geologic transition zone habitat type
in 2009 through surveys of potential habitat and known occurrences of
San Benito evening-primrose. The discovery of the new habitat type, and
associated new occurrences, increased the number of known point
locations from 69 in 2009 to 666 in 2020 (BLM 2020b, p. 25). The
difference between geologic transition zone habitat and alluvial
terrace habitat suggested the possibility that there were two
genetically distinct lineages of San Benito evening-primrose or that
the species may be hybridizing with the close relatives plains evening
primrose (C. contorta) and sandy soil suncup (C. strigulosa). However,
it was determined that hybridization was not occurring and that
watersheds and habitat type did not explain any genetic differences
that were identified (Dick et al. 2014, entire). The findings indicate
that the known occurrences of San Benito evening-primrose are all part
of the same genetic population (Dick et al. 2014, entire).
The BLM has been conducting surveys for San Benito evening-primrose
since 1980 within the Clear Creek Management Area, where the majority
of sub-occurrences are located. The surveys conducted by the BLM have
resulted in an increase in the understanding of the range of the
species, habitat preferences, life history, and numbers (BLM 2018,
entire). The monitoring has resulted in the identification of 666 point
locations occurring within and outside of the boundary of the Clear
Creek Management Area (CCMA), including a substantial number on private
land (7 known point locations in 2009 and 287 known point locations in
2020) (BLM 2020b, p. 25).
The species' current known range is bordered on the north by New
Idria Road near the confluence of Larious Creek and San Carlos Creek,
to the South at the Monterey County Line near Lewis Creek, to the west
near the Hernandez Reservoir, and to the east by the eastern boundary
of the serpentine area of critical environmental concern (ACEC), an
area of approximately 307 square miles. The BLM's ACEC designations
highlight areas where special management attention is needed to protect
important historical, cultural, and scenic values, or fish and wildlife
or other natural resources. ACECs can also be designated to protect
human life and safety from natural hazards. The known occurrences cover
64 ac (26 ha) of public and private land, and potential suitable
habitat is currently estimated at 260 ac (105 ha) (BLM 2018, p. 31).
The findings of the BLM have been documented in annual reports from
2009 to 2020 and are the source of the most recent information
regarding the status of the occurrences of San Benito evening-primrose.
In response to the proposed rule, the BLM provided additional
information regarding the effects of climate change, woody vegetation
dynamics, habitat recolonization, photopoint monitoring, and life-
history information (BLM 2020a, BLM 2020c, BLM 2020d, BLM 2020e, BLM
2020f).
This final determination incorporates data provided by the BLM
within the 2018 and 2020 Annual Report (BLM 2018, entire, BLM 2020b,
entire) as well as the supplemental information provided in response to
the proposed rule. In 2020, 79 occurrences, consisting of 519 sub-
occurrences, and 666 point locations were mapped by the BLM (table 1)
(BLM 2018, spatial data, BLM 2020b, pp. 10-22).
Table 1--2020 BLM Survey Results
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Number of Number of sub- Number of point Acres
occurrences occurrences locations (hectares)
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2020 San Benito evening-primrose 79 519 666 63.2 (25.6)
(Camissonia benitensis) survey
results...........................
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Occurrences consist of sub-occurrences (mapped polygons) within 0.25 mile of each other. Point locations are
reported in the 2020 Annual Report (BLM 2020 p. 25). Acreage data are derived from the spatial extent of the
mapped occurrences.
The BLM compared historical occurrence data to their point location
counts in their annual reports, which we used in the Recovery Plan
(USFWS 2006, entire) and 5-year review (USFWS 2009, entire). Here, we
have chosen to update the occurrence organization because the numbers
of occurrences, sub-occurrences, and point locations have increased
dramatically since 2009. Table 1 illustrates the relationship between
occurrences, sub-occurrences, and point locations. Occurrence contains
sub-occurrences and point locations. Sub-occurrences contain point
locations, and point locations have no further break down. When
possible, we use the same terminology as previous reports.
Recovery and Recovery Plan Implementation
Section 4(f) of the Act directs us to develop and implement
recovery plans for the conservation and survival of endangered and
threatened species unless we determine that such a plan will not
promote the conservation of the species. Under section 4(f)(1)(B)(ii),
recovery plans must, to the maximum extent practicable, include
objective, measurable criteria which, when met, would result in a
determination, in accordance with the provisions of section 4 of the
Act, that the species be removed from the List.
Recovery plans provide a roadmap for us and our partners on methods
of enhancing conservation and minimizing threats to listed species, as
well as measurable criteria against which to evaluate progress towards
recovery and assess the species' likely future condition. However, they
are not regulatory documents and do not substitute for the
determinations and promulgation of regulations required under section
4(a)(1) of the Act. A
[[Page 6050]]
decision to revise the status of a species, or to delist a species, is
ultimately based on an analysis of the best scientific and commercial
data available to determine whether a species is no longer an
endangered species or a threatened species, regardless of whether that
information differs from the recovery plan.
There are many paths to accomplishing recovery of a species, and
recovery may be achieved without all of the criteria in a recovery plan
being fully met. For example, one or more criteria may be exceeded
while other criteria may not yet be accomplished. In that instance, we
may determine that the threats are minimized sufficiently and that the
species is robust enough that it no longer meets the definition of an
endangered species or a threatened species. In other cases, we may
discover new recovery opportunities after having finalized the recovery
plan. Parties seeking to conserve the species may use these
opportunities instead of methods identified in the recovery plan.
Likewise, we may learn new information about the species after we
finalize the recovery plan. The new information may change the extent
to which existing criteria are appropriate for identifying recovery of
the species. The recovery of a species is a dynamic process requiring
adaptive management that may, or may not, follow all of the guidance
provided in a recovery plan.
Below, we summarize the recovery plan goals and discuss progress
toward meeting the recovery objectives and how they inform our analysis
of the species' status and the stressors affecting it.
The Recovery Plan (USFWS 2006, pp. 48-74) describes the recovery
goal and criteria that need to be achieved in order to consider
delisting San Benito evening-primrose. We summarize the goal and then
discuss progress toward meeting the recovery criteria in the following
sections.
Recovery Goal
In the Recovery Plan, the stated goal is to restore occurrences of
San Benito evening-primrose so that they are self-sustaining and
protected from future threats (USFWS 2006, p. 51). This goal is broadly
evaluated through trends in the observed numbers of individuals
indicated by annual monitoring, the abundance and distribution of
suitable habitat, evaluation of the seed bank, and the effectiveness of
protective measures that have been implemented to reduce threats from
human activities such as mining, OHV use, and other recreational
activity (USFWS 2006, pp. 51-52). In order to determine if a species
meets the definition of a threatened species, we must consider
potential impacts within the foreseeable future. The Recovery Plan
(USFWS 2006, entire) used 20 years as the period of time to evaluate
population stability because the number of individuals fluctuates
widely from year to year and a longer monitoring time will better
reflect changes in trends despite this variation (USFWS 2006, pp. 51,
53). Given this and information on potential threats into the future,
in this final rule we have adopted 20 to 30 years as the foreseeable
future to evaluate potential threats and the species' responses to
those threats.
Recovery Criteria
The Recovery Plan identified five criteria for delisting the San
Benito evening-primrose (USFWS 2006, pp. 52-54):
(1) Research has evaluated the possibility for restoration of
suitable habitat and the natural rate of the replacement of suitable
habitat (i.e., succession from open habitat to woody vegetation), the
ecology of the seedbank, and population viability modeling. The results
of completed research, and any other research that was conducted,
should inform all other recovery criteria suggested by the Recovery
Plan and are listed below.
(2) Known occurrences and sufficient additional suitable habitat
within each watershed unit throughout its range are protected from
direct effects from OHV use and other recreational activities.
Appropriate levels of compliance with use regulations by recreationists
have prevented adverse impacts to San Benito evening-primrose
occurrences and habitat.
(3) Currently occupied and suitable habitat for the species has
been restored and maintained over an appropriate period of time, as
informed by monitoring and research. Twenty years was estimated as
``the appropriate period of time'' in the Recovery Plan (USFWS 2006, p.
53). The Recovery Plan emphasizes maintaining suitable habitat and more
precisely defining the requirements of suitable habitat. Additionally,
disturbance and erosion rates should not be elevated above natural
levels and the seed bank should be evaluated for continued persistence,
as above-ground numbers of individuals are known to fluctuate widely
from year to year.
(4) Population sizes have been maintained over a monitoring period
that includes multiple rainfall cycles (successive periods of drought
and wet years). The Recovery Plan states that the trend of above-ground
counts of species should be stable or increasing and defines non-
drought years as those with greater than 15 in (38 cm) of rainfall from
October through April at the Priest Valley weather station.
(5) A post-delisting monitoring plan for San Benito evening-
primrose has been developed.
Achievement of Recovery Criteria
Criterion 1: Research has been completed.
Research to increase the understanding of the extent of existing
occurrences, the range of suitable habitat, the persistence of the seed
bank, and analysis of the genetic variability across watersheds and
habitat types has been undertaken since listing in 1985 (Taylor 1990,
entire; BLM 2010, entire; BLM 2014, entire; BLM 2015, entire; BLM 2018,
entire; Dick et al. 2014, entire).
Habitat Suitability. Research conducted in 1990 (Taylor 1990,
entire) provided the first comprehensive overview of the ecology of San
Benito evening-primrose that established the initial understanding for
the requirements of suitable habitat for the species, the species' life
history, including early examination of the seed bank and germination
characteristics, and the known distribution of the species as well as
threats to the known occurrences. From 1990 through 2010, San Benito
evening-primrose was thought to be restricted to alluvial terrace
habitat that was characterized by relatively deep and well-developed,
serpentine-derived soils on flat ground (compared to nearby barren
serpentine slopes), association with ephemeral or intermittent streams,
and open habitat lacking woody vegetation (Taylor 1990, pp. 39-40). In
2010, the BLM identified a second type of habitat, termed the
``geologic transition zone,'' that was suitable for San Benito evening-
primrose (BLM 2010, pp. 8-16). The geologic transition zone was
characterized by relatively steeper slopes (0- ~60 degrees) of uplands
on serpentine soils at the interface with non-serpentine soils.
Geologic transition zone habitat is not topographically constrained to
the toe of slopes, whereas alluvial stream terrace habitat is.
From the time of listing through 2018, the BLM conducted extensive
surveys within these habitat types, which led to the discovery and
documentation of more than 600 new point locations. The results
indicated that the majority of both occupied and potential habitat is
greatest within the geologic transition zone type (BLM 2018, p. 32).
The new sub-occurrences identified within the geologic transition zone
habitat are
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relatively undisturbed in comparison to the highly disturbed sites of
the initial locations known from alluvial stream terraces (BLM 2010, p.
11). The majority of new point locations are found outside of the
historical areas used by OHVs and as a result have not been subjected
to the same levels of disturbance. Approximately one-third to half of
the currently known occurrences exist on private land outside of the
Clear Creek Management Area (table 2, table 3) (BLM 2018, p. 33).
Seed Bank Analysis. Our understanding of the role of the seed bank
in the life history of San Benito evening-primrose has similarly
increased due to research efforts. The number of viable seeds within
the seed bank was often many times greater than the above-ground
expression in any given year--including those years in which there was
a large above-ground expression (Taylor 1990, p. 57). The size of the
seed bank at existing locations was reevaluated in 2010 by the BLM (BLM
2011, pp. 36-42). The BLM found that there were 519 times as many seeds
as emergent plants when averaged across 67 sub-occurrences in 2010,
emphasizing that the size of the seedbank is much greater than the
total number of observed individuals in a given year. Maintaining a
large amount of seed within the soil is a common strategy for short-
lived annuals in habitats with frequent disturbance because the
persistent seed bank buffers against stochastic environmental events
such as drought (Kalisz and McPeek 1993, pp. 319-320; Fischer and
Matthies 1998, pp. 275-277; Adams et al. 2005, p. 434). In species that
develop large seed banks, it is common to see no above-ground
expression one year and to see a large expression the following year,
and this pattern has been well-documented with San Benito evening-
primrose (BLM 2018, p. 11).
Disturbance Ecology. Frost heaving (the expansion and contraction
of water within the soil during freeze-thaw cycles), small mammal soil
disturbance (e.g., gopher burrowing), sediment movement from adjacent
slopes, and erosion from stream flows were identified as the primary
sources of natural disturbance experienced by San Benito evening-
primrose (Taylor 1990, pp. 39-42, 57). In response to the proposed
rule, the BLM developed severity tables for natural and anthropogenic
sources of disturbance (BLM 2020c, pp. 24-26). While San Benito
evening-primrose tolerates, and is adapted to, disturbance from natural
processes, anthropogenic disturbances from activities such as mining,
road and building construction, and OHV use are much more severe and
may lead to loss of habitat through soil removal, soil compaction, and
increased rates of erosion (BLM 2010, p. 29, Snyder et al. 1976, pp.
29-30, Brooks and Lair 2005, p. 7, pp. 130-131, Lovich and Bainbridge
1999, pp. 315-317, Switalski et al. 2017, p. 88).
San Benito evening-primrose occurs in areas where the disturbance
regime is intermediate between two extremes of not enough disturbance
and too much disturbance. The disturbance regime may be viewed as a
combination of the frequency of disturbance and the intensity of
disturbance. Too little disturbance results in increased competition
from woody vegetation that negatively affects San Benito evening-
primrose occurrences. Conversely, high levels of disturbance results in
direct mortality and loss of seed bank (BLM 2020c, entire). Alluvial
terrace habitat that was greater than 50 percent disturbed from OHV use
was considered to be unsuitable for San Benito evening-primrose (Taylor
1990, p. 71; USFWS 2006, p. 13). Geologic transition zone habitat was
not considered here because it had not yet been recognized as suitable
habitat, but tends to have less OHV disturbance than alluvial terrace
habitat. The seed bank of San Benito evening-primrose is very large,
and the amount of seed present is many times greater than the amount of
individuals that germinate in any given year (Taylor 1990, p. 57, BLM
2011, pp. 33-42). Additionally, the BLM found that the majority of the
existing seed bank is found within the top 1 to 3 in (4 to 8 cm) of
soil (BLM 2013, pp. 19-34). As a result, any damage to, or loss of, the
top layer of soil has the potential to negatively affect the ability of
the species to persist through time.
Population Trends. The Recovery Plan recommends target numbers of
individuals for a subset (27) of the known occurrences of San Benito
evening-primrose (USFWS 2006, pp. 56-58). These occurrences also
generally have the longest record of survey data and include the
initial occurrences described in Taylor (1990, entire). Consistent data
collection of all 27 of these occurrences began in 1998. Although data
for some occurrences is available from 1983, the current population
trend analysis uses 1998 as a starting point in order to keep the total
number of occurrences per year the same, thereby allowing comparisons
across years. Data from the BLM indicate that the number of individuals
observed annually at these occurrences has varied around a mean of
approximately 9,690 individuals (figure 2). The 5-year moving average
indicates a slightly oscillating but generally stable trend in the
average number of individuals from 1998 through 2020. Alternative
analyses of the data using either more years of historical data and/or
more occurrences have all concluded relatively similar results
suggesting that the population is stable (85 FR 33060, BLM 2020g,
entire).
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Population Genetics. The occurrences of San Benito evening-primrose
found within geologic transition zone habitat were at first thought to
be genetically distinct from occurrences within alluvial terrace
habitat. The new occurrences were also located within different
watersheds from the first known occurrences, and there was some
question as to whether or not the species may be hybridizing with a
close relative, Camissonia strigulosa (contorted primrose). If the
occurrences were genetically distinct, recovery actions, such as
restoration of degraded habitat and out-planting efforts, would need to
be identified for each habitat type. There were three distinct genetic
clusters of San Benito evening-primrose found, but none of the genetic
clusters coincided with type of habitat or watershed (Dick et al. 2014,
entire). Additionally, the same study found no evidence of
hybridization between San Benito evening-primrose and contorted
primrose. Because the genetic diversity identified within the
occurrences was widespread and uncorrelated with habitat and watershed,
future out-planting efforts would not need to be restricted to genetic
type. The study instead concluded that seed from different occurrences
should be mixed to increase diversity across the entire geographic
range.
In summary, research to increase the understanding of the extent of
existing occurrences, the range of suitable habitat, the persistence of
the seed bank, and analysis of the genetic variability across
watersheds and habitat types have been undertaken fulfilling recovery
criterion 1.
Criterion 2: Known occurrences and sufficient additional suitable
habitat within each watershed unit throughout its range are protected
from direct effects from OHV use and other recreational activities.
Wire fencing, steel pipe barriers, signage, and enforcement of
trail restrictions were used to protect San Benito evening-primrose and
suitable habitat prior to the 2006 amendment to the Resource Management
Plan. The 2006 amendment to the Resource Management Plan closed to OHVs
all areas not marked for limited or open use. This restricted the total
OHV use area to 242 miles (390 km) of OHV trails and directed OHV use
away from areas that provided suitable habitat for, or were occupied
by, San Benito evening-primrose (BLM 2006 p. 3-1). By 2009, non-
compliance with the 2006 Resource Management Plan had declined (BLM
2008, pp. 5-9; USFWS 2009, pp. 19-21).
In 2008, the EPA issued a report concluding that exposure to
naturally occurring asbestos during recreational activities, including
OHV use, was higher than the acceptable risk range for causing cancer
within the CCMA (Environmental Protection Agency (EPA) 2008, p. 6-3).
The level of exposure to asbestos varied with recreational activity and
participant age, but was significant enough to warrant an emergency
temporary closure of the CCMA (BLM 2008, p. 2). Although not the
intent, the closure effectively temporarily protected all known
occurrences of San Benito evening-primrose from OHV disturbance. The
temporary closure remained in place until the 2014 amendment to the
Resource Management Plan was adopted (BLM 2014, entire). The 2014
Resource Management Plan further restricted OHV access to areas of
suitable habitat and known sub-occurrences of San Benito evening-
primrose by reducing the amount of open trails and restricting access
to the Serpentine ACEC to 5 days per year per recreationalist through a
permit system and a series of locked gates (BLM 2014, pp. 1-18).
The BLM has conducted OHV non-compliance monitoring as part of the
annual San Benito evening-primrose
[[Page 6053]]
surveys since 2008 and the initial closure of the Serpentine ACEC
(table 2). During this time, non-compliance has remained relatively low
with the number of point locations or potential habitat being impacted
by OHV ranging from 2 to 11 locations in a given year. The amount of
disturbance within each area has been observed to be low, and natural
recovery was observed. Upper Clear Creek, Larious Canyon, and San
Carlos Creek are areas of repeated non-compliance despite annual
repairing of fencing and barriers and issuance of citations for
violating the closures when users are caught (BLM 2013, p. 5, BLM 2015,
p. 6, BLM 2020b, pp. 7-8). The intensity of non-compliance varied from
heavy (greater than 10 tracks observed) to moderate or low (less than
10 tracks observed). The BLM assumes that non-compliant OHV use
originates from private land adjacent to the CCMA.
Table 2--Summary of Off-Highway Vehicle Non-Compliance Within the Serpentine Area of Critical Environmental Concern 2008 Through 2020
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of point
locations with Minimum number Maximum number Average number
Year * observed non- of tracks of tracks of tracks Reference
compliance
--------------------------------------------------------------------------------------------------------------------------------------------------------
2008....................................... 6 NA NA NA BLM 2008 pp. 8-9.
2009....................................... 3 NA NA NA BLM 2010 p. 5.
2010....................................... 2 2 10+ 2 BLM 2011 pp. 12-13.
2012....................................... 11 1 10+ 7 BLM 2012 p. 5.
2013....................................... 10 1 10+ 8 BLM 2013 p. 5.
2014....................................... 9 1 10+ 5 BLM 2015 p. 6.
2015....................................... 8 1 10+ 7 BLM 2017 pp. 6-7.
2016....................................... 6 1 10+ 8 BLM 2017 p. 8.
2020....................................... 12 1 10+ 8 BLM 2020b pp. 7-8.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* No data available for 2011, 2017, 2018. Minimum, maximum, and average number of tracks observed were not available for the 2008 and 2009 survey
seasons.
By 2014, the number of known point locations of San Benito evening-
primrose had grown to 500 with the majority occurring within the
geologic transition zone habitat. Approximately half of those locations
were protected from OHV use due to the restrictions imposed by the 2014
Resource Management Plan (BLM 2014, pp. 1-18; BLM 2015, pp. 7-16). By
2020, 666 point locations of San Benito evening-primrose had been
mapped by the BLM (BLM 2020b, p. 25). The 666 point locations
correspond to 79 occurrences consisting of 519 sub-occurrences and
covering 63.2 acres (25.6 ha) (table 1, figure 1). Twenty-three
occurrences (81 sub-occurrences) are located within the Serpentine ACEC
and are effectively protected from OHV use due to the 2014 Resource
Management Plan (BLM 2018, p. 33) (table 3). There are 36 occurrences
(260 sub-occurrences) within BLM-managed land outside of the Serpentine
ACEC. OHV use within the CCMA, but outside of the Serpentine ACEC, has
been designated as ``limited,'' meaning that motorized use is
restricted to highway-licensed vehicles and ATVs and utility task
vehicles on designated routes only (BLM 2014, pp. 1-13--1-14). Forty-
five occurrences (178 sub-occurrences) are known to occur on private
land that is not subject to management by the BLM or other Federal
agencies (table 3, table 4).
When the Recovery Plan criteria were written, there were 27 known
occurrences: 23 were on land managed by the BLM, and 4 were on private
property. Currently, there are 59 occurrences on BLM-managed land and
45 occurrences on private property. Protections for the occurrences on
private land cannot be guaranteed; however, the occurrences on BLM
lands are managed to protect San Benito evening-primrose from OHV use
and other recreational activities.
Table 3--Number of Occurrences, Sub-Occurrences, and Acreage of Mapped San Benito Evening-Primrose (Camissonia
benitensis) Locations by Land Manager
----------------------------------------------------------------------------------------------------------------
Number of Number of sub-
occurrences occurrences Acres
----------------------------------------------------------------------------------------------------------------
BLM.......................................................... 36 260 23.8
ACEC......................................................... 23 81 12.7
Private...................................................... 45 178 26.6
----------------------------------------------------------------------------------------------------------------
Occurrences consist of sub-occurrences (mapped polygons) within 0.25 mile of each other. Point locations are
reported in the 2020 Annual Report (BLM 2020b p. 25). Acreage data are derived from the spatial extent of the
mapped occurrences. Note that occurrences that encompass multiple property owners may be counted twice because
of how the mapped data are nested.
The majority of the known occurrences and sub-occurrences occur
within the geologic transition zone identified by the BLM as habitat in
2010 (table 4). Occurrences of San Benito evening-primrose within
geologic transition zone habitat are assumed to be less likely to be
affected by OHV recreation since OHV riders have historically preferred
the terrain associated with alluvial terrace habitat (BLM 2010, p. 11).
In summary, known occurrences and sufficient additional suitable
habitat within each watershed unit throughout its range are protected
from direct effects from OHV use and other recreational activities,
fulfilling recovery criterion 2.
[[Page 6054]]
Table 4--Number of Known Occurrences and Sub-Occurrences by Land Manager and Habitat Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alluvial terrace habitat Geologic transition zone habitat
------------------------------------------------------------------------------------------------
Number of Number of sub- Number of Number of sub-
occurrences occurrences Acres occurrences occurrences Acres
--------------------------------------------------------------------------------------------------------------------------------------------------------
BLM.................................................... 17 104 6.7 19 156 17.2
ACEC................................................... 6 37 3.0 17 44 9.7
Private................................................ 10 26 0.6 35 152 26.0
------------------------------------------------------------------------------------------------
Total.............................................. 33 167 10.3 71 352 53.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Occurrences consist of sub-occurrences (mapped polygons) within 0.25 mile of each other. Point locations are reported in the 2020 Annual Report (BLM
2020b p. 25). Acreage data are derived from the spatial extent of the mapped occurrences. Note that occurrences that encompass multiple property
owners may be counted twice because of how the mapped data are nested.
Criterion 3: Currently occupied and suitable habitat for the
species has been restored and maintained over an appropriate period of
time, as informed by monitoring and research.
In the Recovery Plan, 20 years was identified as the appropriate
period of time to conduct and evaluate the success of restoration
activities. Twenty years was chosen to allow enough time for
observations of natural and restored occurrences during non-drought
years to be made in order to evaluate the stability of San Benito
evening-primrose occurrences (USFWS 2006, pp. 53-54). Thirty-three
years have passed since San Benito evening-primrose was listed by the
Service as a threatened species. Restoration began prior to listing by
using fencing to discourage disturbance by OHVs (Taylor 1990, pp. 24-
36, 71). The BLM has continued to implement passive restoration
measures such as installation of additional wire fencing and steel pipe
barriers to reduce OHV trespass and signage to promote awareness of the
natural resources (BLM 2018 pp. 50-56). Photopoint monitoring has
demonstrated an increase in the amount of woody vegetation cover in
previously open and disturbed areas. The increase in woody vegetation
cover suggests that fencing and other barriers have been effective in
reducing ground disturbance from OHV use prior to the temporary closure
in 2008 and the permanent restrictions in 2014 (BLM 2020e, entire).
Seed of San Benito evening-primrose was introduced between 1990 and
1991 at six areas near existing point locations. At 5 of the
reintroduction sites, 30,000 seeds were broadcast into areas that were
each 2,153 ft\2\ (200-300 m\2\) in area. Sixty thousand seeds were
broadcast into the sixth site (BLM 2013, Excel data; Taylor 1993, p.
14). Very few plants, relative to the amount of seed reintroduced, were
observed (between 3 and 147 plants) in the years immediately following
the seeding. The results of early seed introductions indicate that San
Benito evening-primrose establishment from artificially sown seed is
very low (Taylor 1993, p. 14). One area where seed was introduced, that
did not previously have extant populations, has continued to have small
numbers of individuals observed each year. The establishment of San
Benito evening-primrose in an area where it did not previously occur,
despite low numbers of individuals relative to number of seed
introduced, led to the recommendation that seed introductions should be
used as a tool for San Benito evening-primrose conservation and
recovery (Taylor 1995, p. 7). Approximately 3,000 seeds were sown in
2008 and 2012 in areas where San Benito evening-primrose had not been
observed but where potential habitat existed that could support new
occurrences. The number of individuals at these areas have remained
similarly low ranging from 0 to 320 individuals in a single year (BLM
2018, pp. 34-47).
Restoration of five staging areas located on stream terraces that
were heavily degraded from OHV use and mining (prior to 1939) was
completed in 2010 (BLM 2011, pp. 4-10). The staging areas were
characterized by a mix of lack of vegetation, soil compaction, buried
original soil surface, debris from facilities, and erosion on adjacent
hillslopes. A total of 2.01 ac (0.81 ha) of San Benito evening-primrose
habitat was restored. The BLM estimated that San Benito evening-
primrose may recolonize restored areas within 5 years when seed is
introduced following restoration. If seed is not added, recolonization
through natural dispersal may take up to several decades (BLM 2020d,
pp. 3-4). Annual counts of San Benito evening-primrose at each of the
staging areas and associated sub-occurrences have indicated that the
number of individuals in any given year fluctuates greatly (BLM 2018,
pp. 34-47). Staging areas 1, 4, and 5 have relatively stable annual
counts, while staging areas 2 and 3 have had more variable, and
possibly slightly declining, annual counts.
The BLM has also undertaken efforts to improve watershed quality by
identifying the most appropriate species and methods to restore
streambanks (BLM 2011, pp. 10-12). While the immediate stream banks are
not suitable habitat for San Benito evening-primrose, restoring natural
hydrology and maintaining bank composition can reduce sedimentation and
erosion in the watershed that indirectly supports the persistence of
San Benito evening-primrose habitat. The BLM found that revegetation of
degraded streambanks using sod of Agrostis exarata (spike bentgrass)
was most effective. Additionally, six vehicle routes were closed and
restored by removing access and ripping the compacted soil (BLM 2011 p.
10).
In summary, currently occupied and suitable habitat for the species
has been restored and maintained over an appropriate period of time, as
informed by monitoring and research, fulfilling recovery criterion 3.
Criterion 4: Population sizes have been maintained over a
monitoring period that includes multiple rainfall cycles (successive
periods of drought and wet years).
The Recovery Plan recommended a target average number of
individuals for 27 occurrences of San Benito evening-primrose (USFWS
2006, pp. 54-58). The target counts were based on past observations of
the number of individuals observed during favorable years and were
considered to be approximate. Four of the 27 locations with a target
number of individuals had an average annual count that met or exceeded
the target levels between 1983 and 2017 (USFWS 2006, pp. 56-58; BLM
2018, pp. 34-35; USFWS Review of BLM reporting data). Five of the 27
locations had an annual average count that met or exceeded the target
number of individuals when only years with normal precipitation are
considered. We consider the average number of individuals because the
number of individuals at any given site fluctuate
[[Page 6055]]
greatly from year to year causing single year counts to be inaccurate
measures of the stability of the species (figure 2).
The total annual number of individuals for the same 27 sites has
fluctuated around a mean of approximately 9,690 individuals since 1998
(Figure 2). The total number of individuals appears stable over time.
The 5-year moving average suggests a stable number of individuals from
1998 to 2020. Although the target numbers have not been met for most of
the 27 occurrences known at the time of the 2006 Recovery Plan, the
Service determines that the recovery criterion is met because the
number of individuals in those occurrences has remained stable around a
5-year moving average, and the number of occurrences has increased
(population size has increased). Evaluating the trend of each of the 79
occurrences (666 point locations, see table 1) is not feasible because
census data for the entirety of known point locations are not
available.
The target number of individuals has not been met for 23 of the 27
occurrences with target criteria. However, the target numbers were
estimates and the lack of a consistent decline in total annual counts
suggest that, while the occurrences are not increasing in abundance of
San Benito evening-primrose, they are not threatened with extinction.
The lack of decline in number of individuals over a 27-year monitoring
period and an increase in the number of known occurrences indicate that
the criteria of maintaining population numbers over an appropriate
period of time has been met.
Criterion 5: A post-delisting monitoring plan for the species has
been developed.
Section 4(g)(1) of the Act requires us, in cooperation with the
States, to implement a system to monitor effectively, for not less than
5 years, all species that have been recovered and delisted (50 CFR
17.11, 17.12). The purpose of this post-delisting monitoring is to
verify that a species remains secure from risk of extinction after it
has been removed from the protections of the Act. The monitoring is
designed to detect the failure of any delisted species to sustain
itself without the protective measures provided by the Act. If, at any
time during the monitoring period, data indicate that protective status
under the Act should be reinstated, we can initiate listing procedures,
including, if appropriate, emergency listing under section 4(b)(7) of
the Act. Section 4(g) of the Act explicitly requires us to cooperate
with the States in development and implementation of post-delisting
monitoring programs, but we remain responsible for compliance with
section 4(g) and, therefore, must remain actively engaged in all phases
of post-delisting monitoring. A post-delisting monitoring plan has been
developed by the Service with input from the BLM, the sole Federal
entity that manages land where San Benito evening-primrose occurs.
Therefore, this criterion has been met.
Summary of Recovery Criteria
Based on the best available information, we conclude that the
recovery criteria in the Recovery Plan have been achieved and the
recovery goal identified in the Recovery Plan has been met for San
Benito evening-primrose. Recovery criterion 1 has been met with
research to increase the understanding of the extent of existing
occurrences, the range of suitable habitat, the persistence of the seed
bank, and analysis of the genetic variability across watersheds and
habitat types. Recovery criterion 2 has been met with protection of
known occurrences and sufficient additional suitable habitat within
each watershed unit throughout its range. Recovery criteria 3 and 4
have been met through the closure of the Serpentine ACEC, restoration
of degraded areas, and observed stability of 27 of the 79 occurrences
over a period that included 18 years of normal rainfall over a 27-year
period. Recovery criterion 5 has been met through the development of a
post-delisting monitoring plan for the species in partnership with the
BLM.
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,'' reclassifying species, or removing species from listed
status. 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 must consider these same five
factors in delisting a species. We may delist a species according to 50
CFR 424.11(d) if the best available scientific and commercial data
indicate that the species is neither endangered nor threatened for the
following reasons: (1) The species is extinct; (2) the species does not
meet the definition of an endangered species or a threatened species
when considering the five factors listed above; or (3) the listed
entity does not meet the statutory definition of a species. The same
factors apply whether we are analyzing the species' status throughout
all of its range or a significant portion of its range.
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
[[Page 6056]]
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 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. For San Benito evening primrose, we examined
the impacts of the threats out to 2050 based on our climate change
assessment so our foreseeable future is projected out approximately 30
years.
Analytical Framework
The 5-year review documents the results of our comprehensive
biological status review for the species, including an assessment of
the potential threats to the species. The review provides the
scientific basis that informs our regulatory decisions, which involve
the further application of standards within the Act and its
implementing regulations and policies. The 5-year review can be found
at https://www.regulations.gov under Docket FWS-R8-ES-2019-0065. Where
information in the 5-year review is out of date, we have provided
updated information in this final rule.
Summary of Biological Status and Threats
Historical analyses and discussion of the threats to San Benito
evening-primrose are detailed in the Recovery Plan (USFWS 2006, pp. 26-
36) and 5-year review (USFWS 2009, pp. 10-18). An updated analysis and
discussion follow here. Primary threats to San Benito evening-primrose
identified in the listing rule included OHV use of occupied and
potential habitat and gravel mining. Uncertainty about the reproductive
capacity of the species and vandalism were also considered additional
threats at listing. Vandalism was considered a threat due to the small
population size and public resistance to listing the species under the
Act. The resistance came from the OHV community perception that listing
the species would inhibit their ability to continue recreating.
However, vandalism was not believed to be significant with subsequent
reviews of the species in the Recovery Plan and 5-year review and is
not considered further in this final rule. Since listing, the Recovery
Plan and 5-year review identified as additional threats: Soil loss and
elevated erosion rates from OHV trails and staging areas, camping,
facilities construction and maintenance, habitat alteration due to
invasive species and/or natural vegetation community succession,
climate change and the local effect on precipitation patterns and
temperature, and stochastic events. The following sections provide a
summary of the past, current, and potential future threats relating to
San Benito evening-primrose.
Off-Highway Vehicle Use
Off-highway vehicle use of open serpentine barrens and alluvial
terraces was considered the primary threat to San Benito evening-
primrose when it was listed in 1985. Soil disturbance from OHVs
increased soil loss, soil compaction, and could result in the physical
removal of plants. Staging areas and camping associated with OHV use
had similar negative impacts to the species and its habitat. Between
1985 and 2010, the BLM implemented a series of measures to reduce
effects to known habitat and occurrences of San Benito evening-primrose
through fencing of sensitive areas, signage, designation of specific
open riding areas, and enforcement and management of designated OHV
trails. In 2005, the BLM estimated 50,000 visitor-use days per year
occurred within the CCMA (USFWS 2006, p. 27). OHV use decreased in 2008
following the release of an EPA report that found high levels of
naturally occurring asbestos that posed a significant health risk to
visitors within the Serpentine ACEC.
To address the EPA findings, the BLM issued new Management Plans
and associated Records of Decision in 2014, which restricted OHV access
by reducing the amount of open trails and restricting access to the
Serpentine ACEC to 5 days per year per recreationalist through a permit
system and a series of locked gates (BLM 2014, pp. 1-18). Currently,
only highway-licensed vehicles are allowed within the Serpentine ACEC
on designated roads and by permit, which is limited to 5 use-days per
year per person. These restrictions on OHV use have effectively removed
OHV impacts to San Benito evening-primrose. OHV non-compliance with
fencing and trail restrictions has been monitored within lands managed
by the BLM. Findings of non-compliance remain low compared to levels of
use prior to closure (table 2).
Occurrences located on private property are not protected from OHV
use, and occurrences on BLM land near private land are at greater risk
of disturbance from OHV trespass. Under the current Resource Management
Plan (BLM 2014, entire), because of its implementation of closures and
restrictions, we do not consider OHV use to be a current threat or that
it will become a threat to occurrences on BLM land in the foreseeable
future. While BLM restrictions do not provide protection to occurrences
on private land, the best available data on historical and current
recreation levels do not indicate that the level of OHV use on private
land will increase from current levels to levels that would threaten
the persistence of the species in the foreseeable future.
Mining
The last commercial mining in the CCMA ceased extraction activities
in 2002 (BLM 2018, p. 66). The BLM has acquired surface rights to 208
ha (520 ac) along the lower reaches of Clear Creek up to and including
the confluence with the San Benito River. This acquisition protects
habitat and occurrences of San Benito evening-primrose, but without
having the mineral rights to the land, it cannot be considered fully
under the control of the BLM (USFWS 2009, p. 13). The BLM decided in
the 2014 Resource Management Plan that no mineral leasing or sales on
public lands will occur within the Serpentine ACEC and that mineral
leasing and sales on public
[[Page 6057]]
lands outside of the Serpentine ACEC will have ``no surface occupancy''
stipulations where occupied special status species habitat occurs (BLM
2014, pp. 1-36--1-37). With these requirements, and no active mining
leases within suitable habitat and known occurrences, we conclude that
mining is no longer a significant threat to San Benito evening-primrose
and is not likely to become a threat in the foreseeable future.
Rock hounding (hobby of collecting rock and mineral specimens)
within the CCMA persists as a recreation activity, although information
on the amount and effect of rock hounding on San Benito evening-
primrose is lacking. However, given the restricted vehicle access and
relatively low impact of an individual user versus a commercial mining
operation, we consider that effects to San Benito evening-primrose from
rock hounding are negligible and are not likely to become a threat in
the foreseeable future.
Soil Loss and Elevated Erosion Rates
Soil loss and erosion may occur naturally due to seasonal
disturbances as would be expected by frost heaving, overland sheet flow
from precipitation, unconsolidated soil, sparse vegetation, and flood
events. Some natural disturbances benefit the species by promoting
areas relatively free of dense vegetation, increasing water
infiltration, and aiding in dispersal of the San Benito evening-
primrose downstream or downslope from existing occurrences. Many of the
threats presented under Factor A may be considered a ``disturbance'' to
the habitat of the species, but this does not mean that they are
beneficial. For example, the effects to soil from frost heaving and
overland sheet flow are very different from those resulting from
repeated use of OHVs. The BLM attempted to quantify the differences
between the natural, or background, rates of soil loss and erosion, and
those that result from OHV and highway vehicle use. The mean background
soil loss in the Clear Creek Watershed was 8 yards\3\ (yd\3\) per acre
per year (ac-year) (11 tons/ac-year) and that soil loss resulting from
OHV open riding resulted in soil loss of 12 yd\3\/ac-year (16 tons/ac-
year) (PTI Environmental 1993, pp. 36-39). The erosion rate from roads
was estimated at 59 yd\3\/ac-year (80 tons/ac-year).
Increased erosion and elevated soil loss are indicative of loss of
suitable habitat. The seed bank may be lost as soil erodes, and the
remaining soil may become compacted, decreasing germination potential
as well as water retention. Trails that form from repeated use on open
slopes or terraces may collect and funnel water, creating runnels,
which in turn increase erosion while drawing water away from adjacent
areas (Brooks and Lair 2005, p. 7; Ouren et al. 2007, pp. 5-16). The
BLM has recognized this issue and has attempted to enact minimization
measures for soil loss and erosion. In the most recent Resource
Management Plan, the BLM includes guidelines that call for road
closures during extreme wet weather, prioritizing closed roads for
restoration and reclamation, and establishing automated weather
stations to monitor precipitation and soil moisture and requires
approved erosion control strategies to be evaluated for any soil-
disturbing activities on slopes of 20-40 percent (BLM 2014, p. 1-30).
Presently, the threat of soil loss and erosion is limited to natural
cycles, remnant effects of past land use, and roads (for which the
above minimization measures apply). Considering that additional sub-
occurrences of San Benito evening-primrose continue to be identified
and remain viable within habitat that is more prone to erosion (upland
slopes of the geologic transition zone habitat type), it is unlikely
that natural rates of soil loss and erosion present a threat to the
continued existence of the species and are not likely to do so in the
foreseeable future.
Facilities Construction and Maintenance
The construction of the BLM Section 8 Administrative Site in 1988
and associated structures resulted in direct loss of San Benito
evening-primrose and its habitat, although the species still occurs in
the vicinity of the disturbance (USFWS 2009, pp. 12-13; BLM 2018, p.
34). The Section 8 Administrative Site was decommissioned in 2010 and
replaced by the Clear Creek Administrative Site. The new administrative
site was not constructed on occupied or potential habitat for San
Benito evening-primrose, although the impacts resulting from the
original disturbance remain (BLM 2018, p. 66). The old Section 8
Administrative Site is infrequently used and, at current levels of use,
does not present a threat to the persistence of San Benito evening-
primrose, as evidenced by the discovery of new sub-occurrences and
potential habitat throughout the CCMA (BLM 2018, p. 66). No new
facilities and construction projects are planned, and it is not likely
that new projects in occupied or potential habitat will be proposed in
the foreseeable future.
Habitat Alteration Due to Invasive Species
The serpentine-derived soils inhibit invasion from nonnative plant
species where San Benito evening-primrose occurs. However, the habitat
may still be degraded if invasion by nonnative species occurs on
adjacent land. High densities of nonnative species may negatively
influence existing or potential habitat for San Benito evening-primrose
by providing a persistent threat of colonization. Yellow star thistle
(Centaurea solstitialis) and tocalote (C. melitensis) have been
actively controlled near occurrences of San Benito evening-primrose
within the CCMA since 2005 (BLM 2018, p. 62). The BLM has identified
prescribed fire followed by broadcast application of clopyralid, a
broadleaf specific herbicide, as the most effective means of reducing
the cover of invasive species threatening San Benito evening-primrose.
The cover of yellow star thistle has been reduced by 95 percent in the
Clear Creek drainage, and San Benito evening-primrose has expanded into
the improved habitat (BLM 2018, p. 62). The natural buffer that the
serpentine-derived soils provide, coupled with BLM's management of
invasive species and the expansion of known sub-occurrences and
potential habitat, make it unlikely that invasive species present a
significant threat either now or into the foreseeable future to the
persistence of San Benito evening-primrose. The abundance of invasive
species will be monitored as part of the post-delisting monitoring
plan. The post-delisting monitoring plan will suggest thresholds that
will determine the necessary control efforts on federally managed land.
Succession to Woody Shrub Community
San Benito evening-primrose habitat is typically open and
relatively free of high amounts of woody vegetation and canopy cover.
Succession to a woody shrub community in habitat that presently or
historically supported San Benito evening-primrose could result in
increased canopy cover (potentially shading out San Benito evening-
primrose) and increased competition for resources (lessening the
success of establishment and survival) (Taylor 1990, p. 66).
Photopoints initiated by the BLM in 1980 indicate that open serpentine
barrens are less susceptible to encroachment by woody shrubs (typically
chaparral species such as manzanita (Arctostaphylos spp.)) than
alluvial terrace habitat. This is presumably due to the greater
concentration of serpentine soils on the
[[Page 6058]]
open barrens compared to the more organic rich soils of the alluvial
terraces.
The immediate effect of encroachment by woody vegetation would be
to reduce, or possibly eliminate, known occurrences and potential
habitat of San Benito evening-primrose through competition and
alteration of habitat structure. It is possible that the seed bank,
once established, is long lived enough that it may persist through
cycles of vegetation community shifts due to natural events such as
fires as has been observed at least once within the CCMA (BLM 2020d, p.
3). The BLM has estimated that seed may remain viable for 107 years in
the presence of common co-occurring shrubs (BLM 2015, pp. 16-28).
San Benito evening-primrose has not been observed in the geologic
transition zone habitat for as long a period of time as either alluvial
terrace habitat or the open serpentine barrens. The rate of succession
to woody vegetation is being monitored through photopoint monitoring by
the BLM (BLM 2020e, entire). It is likely that the rate of succession
to woody habitat is less within geologic transition zone habitat than
alluvial terrace, but greater than the rate of succession compared to
open serpentine barrens. Succession of plant communities is a natural
process and may result in loss of current or potential habitat.
However, the amount of new sub-occurrences that have been identified
lessen the immediate risk to the existence of the species; therefore,
succession to woody shrub community is not currently a species-level
threat. No occurrences of San Benito evening-primrose have been
extirpated due to succession of woody vegetation since monitoring began
in 1980, and, because San Benito evening-primrose grows on serpentine
soils, threats to the species from succession to woody vegetation is
also unlikely to be a threat in the foreseeable future.
Stochastic Events
At the time of listing, only nine occurrences of San Benito
evening-primrose were known within a relatively restricted range. The
small number of occurrences increased the susceptibility of the species
to extinction from a stochastic event, such as a fire, flood, drought,
or other unpredictable event, because a single event had the capability
to negatively impact all known occurrences at the same time. The
vulnerability of the species to extinction from stochastic events has
decreased as the number of known occurrences has increased to 79
occurrences (519 sub-occurrences or 666 point locations) occurring
across multiple watersheds, and into a new habitat type (the geologic
transition zone). The species' current known range is approximately 307
square miles, an area large enough that it is unlikely that a single
stochastic event would be able to impact the species.
Within this broad range, approximately 260 ac (105 ha) is
considered potential habitat (BLM 2018, p. 31), and 63.2 ac (25.6 ha)
are known to be occupied. Despite the occupied area being relatively
small, it is spread over a large geographic area across multiple
habitat types and many occurrences, suggesting a low possibility of
extinction from a single stochastic event. The presence of a long-lived
and well-established seed bank further insulates San Benito evening-
primrose from the possibility of extinction due to a single stochastic
event. The land management practices of the BLM within the CCMA have
promoted preserving and restoring San Benito evening-primrose habitat
and the natural soil processes and hydrology of the watersheds it
occurs within as well. Stochastic events are unlikely to threaten the
species in the foreseeable future due to the current range of San
Benito evening-primrose and number of known occurrences.
Climate Change
The terms ``climate'' and ``climate change'' are defined by the
Intergovernmental Panel on Climate Change (IPCC). The term ``climate
change'' thus refers to a change in the mean or variability of one or
more measures of climate (for example, temperature or precipitation)
that persists for an extended period, whether the change is due to
natural variability or human activity (IPCC 2014a, pp. 119-120). The
effects of climate change are wide ranging but include alteration of
historical climate patterns including storm frequency and severity,
seasonal shifts in temperatures, and changing precipitation patterns.
Globally, these effects may be positive, neutral, or negative for any
given species, ecosystem, land use, or resource, and they may change
over time (IPCC 2014b, pp. 49-54; IPCC 2018, pp. 9-12). Potential
effects derived from climate change have consequences for the
biological environment and may result in changes to the suitability of
currently occupied habitat through increased drought stress, shortened
growing seasons, and alteration of the historical soil and hydrologic
cycles. The effects of these changes to San Benito evening-primrose and
its habitat are not known, but we may reasonably infer potential
effects from the globally anticipated changes. The State of California
assessment on climate change provides a better estimate for the effects
of climate change to areas occupied by San Benito evening-primrose.
California released its fourth climate change assessment in 2018
(Langridge 2018, entire). California's Fourth Climate Change Assessment
uses downscaled versions of the global climate models used by IPCC to
create localized predictions based on future emissions scenarios to
provide relevant predictions for management and planning. The range of
San Benito evening-primrose falls within the Central Coast region of
California's fourth climate change assessment. In general, the region
is expected to experience increasing minimum and maximum temperatures
and slight increases in precipitation with significant increases in
variability (Langridge 2018, p. 6). These expected trends are
consistent within the range where San Benito evening-primrose occurs.
The predicted increases in minimum temperature, maximum temperature,
and precipitation are similar for both high (representative
concentration pathway (RCP) 8.5) and low (RCP 4.5) emissions scenarios
and across model variations (Cal-adapt 2020, p. NA; table 5). Data from
weather stations within the range of San Benito evening-primrose
indicate that the historical and/or modeled estimate of precipitation
is high (by approximately 2-4 inches) and that the estimate of minimum
temperature is low (by approximately 5 [deg]F) (BLM 2020a, pp. 3, 9-
10).
[[Page 6059]]
Table 5--Changes in Precipitation, Minimum Average Temperature, and Maximum Average Temperature for Low and High
Emission Scenarios Compared to Historical Averages Throughout the Range of San Benito Evening-Primrose
----------------------------------------------------------------------------------------------------------------
Precipitation (inches) Minimum average temperature Maximum average temperature ([deg]F)
---------------------------------- ([deg]F) -------------------------------------------
-----------------------------------
Historical average RCP 4.5 RCP 4.5 Historical average RCP 4.5 (RCP 8.5)
(RCP 8.5) Historical average (RCP 8.5)
----------------------------------------------------------------------------------------------------------------
20.2 23.5 38.4 41.3 70.0 72.9 (73.4)
(22.5) (41.9)
----------------------------------------------------------------------------------------------------------------
Reported values for the modeled futures are based on the average of the HadGEM2-ES (warmer and drier), CNRM-CM5
(cooler and wetter), and CanESM2 (average) models for running climate simulations. The RCP 4.5 scenario refers
to a future scenario where emissions peak near 2040 and then decline, while RCP 8.5 refers to a scenario where
emissions continue to rise strongly through 2050 and plateau near 2100. The historical average is based on the
years 1950-2005 as reported by cal-adapt.org. The modeled values are estimates from the years 2020-2050. A
user defined boundary was used and was based on a polygon that was drawn to encompass all areas where San
Benito evening-primrose occurs.
Based on the state of California assessment of climate change, the
IPCC data, taking into account known uncertainties with climate change
projection, the effects of the predicted changes due to climate change
to occurrences of San Benito evening-primrose are varied and possibly
contradictory (e.g., increased minimum temperatures may have both
positive and negative effects). An increase in precipitation may
provide additional water during the growing season, but the variability
between seasons may result in long periods of drought followed by high-
volume precipitation that may cause erosion. Increasing minimum
temperatures may reduce the amount of days with frost, reducing
seedling mortality but may also delay germination (BLM 2020a, pp. 6-7).
Increasing maximum temperatures could result in increased stress for
flowering individuals. Conversely, increased amounts of rain may
promote increased germination and seedling success.
The BLM conducted a climate envelope analysis comparing the range
of precipitation and temperature values that San Benito evening-
primrose and two close relatives, Camissonia contorta and C.
strigulosa, occupy and evaluating the precipitation and temperature
range that San Benito evening-primrose would shift into under the
future climate scenarios. Under current conditions, the San Benito
evening-primrose occupies a small precipitation and temperature niche
that overlaps with both C. contorta and C. strigulosa suggesting that
those species may indicate the environmental tolerance of San Benito
evening-primrose. Under the considered future climate scenarios the
precipitation and temperature range would fall within the current known
habitable range of C. contorta and C. strigulosa suggesting that the
predicted changes in climate would be tolerable by San Benito evening-
primrose (BLM 2020a, pp. 5-7, 14-15).
Shifts in community composition are likely to occur as a result of
changes in California's climate and may impact the long-term
suitability of currently occupied and potential habitat for San Benito
evening-primrose. All California macrogroups of vegetation are expected
to have moderate to high risk of vulnerability to climate change
(Thorne et al. 2016, p. 1). This means that all vegetation communities
are susceptible to portions of their current range becoming unsuitable.
It is also possible that previously unsuitable areas for a given
macrogroup will become suitable as physical parameters that were
previously unfavorable become favorable. Vegetation communities
migrating higher in elevation along temperature gradients or moving
upland as sea levels rise along hydrological gradients are typical
examples of this scenario. However, the ability of a vegetation
macrogroup to migrate assumes that natural seed dispersal pathways are
available, and that undeveloped land exists along dispersal pathways.
San Benito evening-primrose occurs within three macrogroups within
San Benito and Fresno Counties: California foothill and valley forests
and woodlands, chaparral, and California annual and perennial
grassland. California foothill and valley forests and woodlands and
chaparral are both ranked at moderate risk of vulnerability, and
California annual and perennial grassland is ranked as moderate to high
risk of vulnerability (Thorne et al. 2016, p. 3; table 6). Estimates of
the percent of existing habitat that will become unsuitable, have no
change, or become newly suitable based on low and high emissions
scenarios are shown in table 6 based on data within Thorne et al.
(2016, pp. 33-41, 114-122, 132-140).
Table 6--Results of Sensitivity and Adaptive Capacity Modeling and the Resulting Change in Suitability of Existing Habitat for Three Vegetation
Macrogroups Within Which San Benito Evening-Primrose Occurs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unsuitable No change Newly suitable
Vegetation macrogroup Mean vulnerability rank -----------------------------------------------------------------------------
Low (%) High (%) Low (%) High (%) Low (%) High (%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
California foothill and valley forests Moderate........................ 24 59 41 76 11 34
and woodlands.
Chaparral............................... Moderate........................ 8 54 46 92 17 47
California annual and perennial Mid-High........................ 16 48 52 84 10 52
grassland.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Data from Thorne et al. 2016 pp. 3, 33-41, 114-122, 132-140.
Under both high and low emissions scenarios, currently suitable
habitat for San Benito evening-primrose is lost due to changes in
climate. Conversely, the species that compose the vegetation
communities that are associated with San Benito evening-primrose are
expected to have the capability to migrate into newly suitable habitat.
The
[[Page 6060]]
primary concern, in regard to San Benito evening-primrose habitat, is
the threat of an increase in woody vegetation as a response to climate
change. However, San Benito evening-primrose is found in serpentine and
serpentine-derived soils that are not likely to be affected by climate
change in the foreseeable future. The edaphic (soil) conditions may
restrain woody vegetation migration into areas currently occupied.
While the soil type may mitigate habitat loss due to habitat
conversion, it may also restrain the species from dispersing to areas
where climatic conditions are more favorable for survival. The
currently predicted changes in precipitation and climate do not
indicate that the species may become endangered due to those changes in
the foreseeable future.
Existing Regulatory Mechanisms
State Protections
San Benito evening-primrose is classified by the California Native
Plant Society (CNPS) as 1B.1, indicating that the taxon is rare
throughout its range and is generally endemic to California as well as
having been reduced throughout its historical range. Species ranked by
CNPS as 1B.1 meet the definition of threatened in the California
Endangered Species Act as described in the California Fish and Game
Code (CNPS 2018 Rare Plant Inventory website) and must therefore be
considered during environmental analysis for California Environmental
Quality Act (CEQA) documentation (CEQA 2018 Guidelines Section 15380).
Environmental analysis for CEQA documentation may analyze impacts to
the species and recommend protection and conservation measures.
Federal Protections
The BLM has regulations and policies that guide the management of
natural resources on the public lands they manage. In particular, the
Federal Land Policy and Management Act of 1976 provides for ``the
management, protection, development, and enhancement'' of public lands
managed by the BLM. This law directs the BLM to ``take any action
necessary to prevent unnecessary or undue degradation of the lands''
during mining operations (43 U.S.C. 1732(b)). Certain mining
operations, and certain other defined operations, require a plan of
operations approved by the BLM (see 43 CFR part 3800, subpart 3809).
BLM may enact special rules to protect soil, vegetation, wildlife,
threatened or endangered species, wilderness suitability, and other
resources by immediately closing affected areas to off-road vehicles
that are causing resource damage until the adverse effects are
eliminated and measures are implemented to prevent recurrence (43 FR
8340-8364; March 1, 1978).
Two Executive Orders (E.O.) apply specifically to off-road vehicles
on public lands: E.O. 11644 directs agencies to designate zones of off-
road use that are based on protecting natural resources, the safety of
all users, and minimizing conflicts among various land uses. The BLM
and other agencies are to locate such areas and trails to minimize
damage to soil, watershed, vegetation, or other resources, and to
minimize disruption to wildlife and their habitats. Areas may be
located in designated park and refuge areas or natural areas only if
the head of the agency determines that off-road use will not adversely
affect the natural, aesthetic, or scenic values of the locations. The
respective agencies are to ensure adequate opportunity for public
participation in the designation of areas and trails.
E.O. 11989 amends the previous order by adding the following
stipulations: (a) Whenever the agency determines that the use of off-
road vehicles will cause or is causing considerable adverse effects on
the soil, vegetation, wildlife, wildlife habitat, or cultural or
historic resources of particular areas or trails on public lands, it is
to immediately close the areas or trails to the type of off-road
vehicle causing the effects until it determines that the adverse
effects have ceased and that measures are in place to prevent future
recurrence; and (b) each agency is to close portions of public lands
within its jurisdiction to off-road vehicles except areas or trails
designated as suitable and open to off-road vehicle use.
In 2001, the BLM published the National Management Strategy for
Motorized Off-Highway Vehicle Use on Public Lands. This guiding
document ensures consistent and positive management of environmentally
responsible motorized OHV use on public lands. Detailed regulations are
established in BLM's 2014 Resource Management Plan for the CCMA that
provide for protections of San Benito evening-primrose. BLM's 2014
Resource Management Plan for the CCMA is in place until superseded. The
restriction of OHV use within the CCMA and the Serpentine ACEC is based
on concerns of health risks and will be unaffected by the delisting of
San Benito evening-primrose. Currently, only highway-licensed vehicles
are allowed within the Serpentine ACEC on designated roads and by
permit, which is limited to 5 use-days per year per person, and within
the CCMA trail riding is restricted to designated areas near Condon
Peak (BLM 2014, p. 1-18).
While San Benito evening-primrose was listed under the Act, the BLM
consulted with the Service on any activities it funds, authorizes, or
carries out that may affect the species. The Act does not provide
protection for listed plants on non-Federal lands, unless a person
damages or destroys federally listed plants while in violation of a
State law or a criminal trespass law. Where the species occurs on
private lands, protections afforded by section 7(a)(2) of the Act are
triggered only if there is a Federal nexus (i.e., an action funded,
permitted, or carried out by a Federal agency). If the species is
delisted, the protections afforded by the Act would no longer apply.
Even in the absence of the protections of the Act, adequate regulatory
mechanisms are in place, such as the Federal Land Policy and Management
Act of 1976, E.O. 11644, and E.O. 11989, to ensure the continued
persistence of San Benito evening-primroses occurrences and suitable
potential habitat, in light of the increased number of populations and
decreased threats that the species experiences now relative to at the
time of listing.
Summary of Threats Analysis
A very limited range, small number of occurrences, and direct and
indirect threats from OHV use and mining and associated facilities and
road maintenance were the primary threats to San Benito evening-
primrose at the time of listing in 1985 (50 FR 5755-5759, February 12,
1985). OHV use continued to be a significant threat to San Benito
evening-primrose until the temporary closure of the Serpentine ACEC in
2008. The 2014 Resource Management Plan permanently reduced the amount
of exposure San Benito evening-primrose has to OHV recreation and has
resulted in indirectly removing the most significant threat to the
species, which was direct loss of individuals by OHV recreation and
indirect loss of habitat and seed bank through erosion on slopes and
soil compaction on alluvial terraces. The threat from mining was
reduced by 2002 with the closure of the last commercial mine, and
future threats from mining are unlikely based on BLM management actions
listed in the 2014 Resource Management Plan for the CCMA. Habitat
alteration from invasive species and succession to woody vegetation
communities are not likely to threaten San Benito evening-primrose
because invasive species and woody
[[Page 6061]]
vegetation communities are intolerant to serpentine soils. The
significant increase in the number of known occurrences and the
associated increase in range and the new habitat association greatly
reduce the threat of stochastic events resulting in significant loss to
the species. The predicted changes in temperature and rainfall by 2050
as a result of climate change do not indicate species-level threats to
survival.
When individual threats that influence reproductive output,
germination, and survival occur together, one threat may add to, or
exacerbate, the effects of another, resulting in a disproportionate
increase in threat to the species. When this occurs, we call the
interactive effects synergistic or cumulative. The lack of current
threats to San Benito evening-primrose reduce the possibility of
synergistic or cumulative effects occurring, and, given the current
range of the species, number of known occurrences, and likelihood of
new occurrences to become known, synergistic and cumulative effects do
not pose a significant population-level impact to San Benito evening-
primrose at this time nor do we anticipate that they will in the
future.
Summary of Comments and Recommendations
In the proposed rule published in the Federal Register on June 1,
2020 (85 FR 33060), we requested that all interested parties submit
written comments on our proposal to delist the San Benito evening
primrose by July 31, 2020. We also contacted appropriate Federal and
State agencies, scientific experts and organizations, and other
interested parties and invited them to comment on the proposal. We did
not receive any requests for a public hearing. All substantive
information provided during the comment period has either been
incorporated directly into this final rule or is addressed below.
During the comment period, we received comments from 10 individuals
addressing the proposed rule, representing 9 public commenters and 1
partner review. Public comments are posted at https://www.regulations.gov under Docket No. FWS-R8-ES-2019-0065. Five public
commenters supported the proposed rule with no additional analysis or
revision requested. These comments are not further addressed. One
public commenter supported the proposed rule but maintained a concern
for vehicular threats. Two public comments were against the proposed
rule but did not provide substantive information that could be
evaluated or incorporated and are not addressed further. One public
commenter was against the proposed rule and provided substantive
information that is addressed below. The BLM provided partner review of
the proposed rule and post-delisting monitoring plan in support of the
proposed rule and provided additional information. BLM comments and new
information have been incorporated into the text of the final rule.
Public comments are addressed below.
Public Comments
(1) Comment: One commenter acknowledged recovery of San Benito
evening primrose and concurred with the conclusions of the proposed
rule but maintained a concern for changes to current OHV regulations.
Our Response: Changes to the regulation of OHV use of the Clear
Creek Management Area and the Serpentine ACEC are governed by the BLM's
2014 Record of Decision. Changes in OHV use of these areas would
initiate environmental review, and potential impacts and threats to San
Benito evening primrose would be evaluated during that process. This
concern is addressed under the discussion of Existing Regulatory
Mechanisms.
(2) Comment: One commenter disagreed with the conclusions of the
proposed rule based on evidence of continued OHV trespass of occupied
areas, the potential for the reopening of the CCMA and the Serpentine
ACEC, occurrences on private land without protections, and the adequacy
of the post-delisting monitoring plan.
Our Response: Continued trespass has been documented by the BLM and
was addressed in the proposed rule. The level of trespass shown and
described in the comment, as well as updated trespass information
provided by the BLM, have been incorporated into the final rule. Based
on the available population data and analysis, and supporting
documentation provided by the BLM, we conclude that the current level
of trespass does not place the species in danger of extinction or
becoming endangered in the foreseeable future. The number of additional
occurrences of the species in areas unaffected by OHV use reduces the
likelihood that OHV trespass is likely to lead to the extinction of the
species. However, the Service acknowledges the potential for OHV use to
result in negative effects to the species, and this issue is addressed
in the post-delisting monitoring plan, developed in coordination with
the BLM. The post-delisting monitoring plan will evaluate disturbance
(from OHV use and other sources) in the context of the biology of the
species. The post-delisting monitoring plan requires a reevaluation of
the status of the species if negative trend thresholds are reached for
aboveground abundance and seed bank size (see post-delisting monitoring
plan).
Changes to the vehicular use of the CCMA and the Serpentine ACEC
are governed by the BLM's 2014 Record of Decision. Changes in vehicular
use of these areas would initiate environmental review, and potential
impacts and threats to San Benito evening primrose would be evaluated
during that process. This concern is addressed under the discussion of
Existing Regulatory Mechanisms.
Many occurrences of San Benito evening primrose do occur on private
land. However, the number of occurrences on public land where the
conservation of the species is a management goal is large enough to
warrant delisting because the species is not in danger of extinction
now or in the foreseeable future.
Determination of San Benito Evening-Primrose Status
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 ``endangered species'' or
``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.'' For a more detailed discussion on the factors considered when
determining whether a species meets the definition of ``endangered
species'' or ``threatened species'' and our analysis on how we
determine the foreseeable future in making these decisions, see
Regulatory and Analytical Framework, above.
Status Throughout All of Its Range
After evaluating threats to the species and assessing the
cumulative effect of the threats under the section 4(a)(1) factors, we
have assessed the best scientific and commercial information available
regarding the past, present, and future threats faced by San Benito
evening-primrose in this final rule. At the time of listing in 1985 (50
FR 5755-5759, February 12, 1985), San Benito evening-primrose was known
from only nine occurrences within a very narrow range that were all
subject to potential loss from the threats listed in Factors A through
E.
[[Page 6062]]
Off-highway vehicle recreation (Factor A), the greatest persistent
threat to the species, has been reduced to levels that no longer pose a
significant threat of extinction to San Benito evening-primrose or loss
of its habitat, due to the closure of the Serpentine ACEC and the
restriction of OHV use within the CCMA but outside of the Serpentine
ACEC. Most significantly, surveys by the BLM have shown that the
species is much more wide-ranging and common than originally known and
occurs across a broader range of habitat types. The number of known
occurrences has increased from 9 to 79 and includes 666 mapped point
locations. The range of the species is now known from three watersheds,
and occupied habitat covers 63.2 acres (25.6 ha).
Our understanding of the ecology of the species has demonstrated
that the species weathers periods of disturbance due to the persistence
of a robust and long-lived seedbank that facilitates reestablishment
and dispersal and buffers against stochastic events. Annual surveys of
San Benito evening-primrose have demonstrated a large amount of
interannual variation in numbers of individuals observed. The 27
occurrences monitored since 1998 have remained stable around a 5-year
moving average. Further, the significant increase in the number of
occurrences was not contemplated at the time the Recovery Plan was
written, which focused recovery on increases to the 27 occurrences. The
best available information indicates that Factors A, B, C, and E are
not affecting the species and are unlikely to do so in the foreseeable
future. The existing regulatory mechanisms in place are adequate to
ensure the continued viability of San Benito evening-primrose
occurrences and suitable potential habitat even if the species is
delisted and protections under the Act are removed, because a majority
of occurrences are managed on Federal land and are protected by a 2014
BLM Resource Management Plan and a BLM ACEC designation.
Based on the information presented in this status review, the
recovery criteria in the Recovery Plan have been achieved, and the
recovery goal identified in the Recovery Plan has been met for San
Benito evening-primrose. Thus, after assessing the best available
information, we conclude that San Benito evening-primrose is not in
danger of extinction now or likely to become so within the foreseeable
future throughout all of its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
within the foreseeable future throughout all or a significant portion
of its range.
Having determined that San Benito evening-primrose is not in danger
of extinction or likely to become so within the foreseeable future
throughout all of its range, we now consider whether it may be in
danger of extinction or likely to become so within the foreseeable
future in a significant portion of its range--that is, whether there is
any portion of the species' range for which it is true that both (1)
the portion is significant; and (2) the species is in danger of
extinction now or likely to become so in the foreseeable future 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.
In undertaking this analysis for San Benito evening-primrose, 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 or threatened. San Benito evening-
primrose occurs over 300 square miles, but occupies a relatively small
amount of acreage (63.2 ac (25.6 ha) of occupied habitat). Genetic
analysis indicated no differentiation in occurrences based on watershed
or habitat and that there was no hybridization with a close relative.
Every threat to the species in any portion of its range is a threat to
the species throughout all of its range, and so the species has the
same status under the Act throughout its narrow range. Therefore, we
conclude that the species is not in danger of extinction now or likely
to become so in the foreseeable future in any significant portion of
its range. This does not conflict with the courts' holdings in Desert
Survivors v. U.S. Department of the Interior, 321 F. Supp. 3d 1011,
1070-74 (N.D. Cal. 2018), and Center for Biological Diversity v.
Jewell, 248 F. Supp. 3d. 946, 959 (D. Ariz. 2017) because, in reaching
this conclusion, we did not need to consider whether any portions are
significant and therefore did not apply the aspects of the Final
Policy's definition of ``significant'' that those court decisions held
were invalid.
Determination of Status
Our review of the best scientific and commercial data available
indicates that the San Benito evening-primrose does not meet the
definition of an endangered species or a threatened species in
accordance with sections 3(6) and 3(20) of the Act. Therefore, with
this rule, we delist the San Benito evening-primrose from the List of
Endangered and Threatened Plants.
Effects of This Rule
This final rule revises 50 CFR 17.12(h) by removing San Benito
evening-primrose from the Federal List of Endangered and Threatened
Plants. On the effective date of this rule (see DATES, above), the
prohibitions and conservation measures provided by the Act,
particularly through sections 7 and 9, will no longer apply to San
Benito evening-primrose. Federal agencies will no longer be required to
consult with the Service under section 7 of the Act in the event that
activities they authorize, fund, or carry out may affect San Benito
evening-primrose. There is no critical habitat designated for this
species, so there will be no effect to 50 CFR 17.96.
Post-Delisting Monitoring
Section 4(g)(1) of the Act requires us to implement a monitoring
program for not less than 5 years for all species that have been
delisted due to recovery. Post-delisting monitoring (PDM) refers to
activities undertaken to verify that a species delisted due to recovery
remains secure from the risk of extinction after the protections of the
Act no longer apply. The primary goal of PDM is to monitor the species
to ensure that its status does not deteriorate, and if a decline is
detected, to take measures to halt the decline so that proposing it as
endangered or threatened is not again needed. If, at any time during
the monitoring period, data indicate that protective status under the
Act should be reinstated, we can initiate listing procedures,
including, if appropriate, emergency listing under section 4(b)(7) of
the Act. Section 4(g) of the Act explicitly requires us to cooperate
with the States in development and implementation of post-delisting
monitoring programs, but we remain responsible for compliance with
section 4(g) and, therefore, must remain actively engaged in all phases
of post-delisting monitoring. We also seek active participation of
other entities that are expected to assume responsibilities for the
species' conservation post-delisting.
[[Page 6063]]
Post-Delisting Monitoring Overview
A post-delisting monitoring plan was developed in partnership with
the BLM. The post-delisting monitoring has been designed to verify that
San Benito evening-primrose remains secure from risk of extinction
after its removal from the Federal List of Endangered and Threatened
Plants by detecting changes in population trends of known occurrences.
The Act has a minimum post-delisting monitoring requirement of 5 years;
however, if populations decline in abundance past the defined threshold
in the post-delisting monitoring plan, or a substantial new threat
arises, post-delisting monitoring may be extended or modified and the
status of the species will be reevaluated.
Post-delisting monitoring will occur for 5 years with the first
year of monitoring beginning the first spring following the publication
of the final delisting rule. Post-delisting monitoring will annually
census aboveground individuals within the 27 occurrences listed in the
Recovery Plan, which are also the 27 occurrences that have been used to
evaluate population trends in the final rule. Annual monitoring of
disturbance frequency and intensity will also occur annually in
conjunction with the annual census. Seed bank quantification will occur
in years 2 and 5 to determine if there has been a loss of viable seed
across the range of habitat types. Woody vegetation structure will be
evaluated in year 5 and compared to data collected in 2020, the year
the proposed rule was published, to evaluate potential changes in
habitat suitability across habitat types and historical disturbance
levels. A final post-delisting monitoring plan for the species can be
found at https://www.regulations.gov under Docket No. FWS-R8-ES-2019-
0065. We will work closely with our partners to maintain the recovered
status of the San Benito evening-primrose and ensure post-delisting
monitoring is conducted and future management strategies are
implemented (as necessary) to benefit the San Benito evening-primrose.
Required Determinations
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act (42 U.S.C. 4321 et seq.), need not be prepared
in connection with determining a species' listing status under the
Endangered Species Act. We published a notice outlining our reasons for
this determination in the Federal Register on October 25, 1983 (48 FR
49244). 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)).
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 no Tribal lands associated
with this final rule, and we did not receive any comments on the
proposed rule from Tribes.
References Cited
A complete list of all references cited in this final rule is
available on the internet at https://www.regulations.gov under Docket
No. FWS-R8-ES-2019-0065, or upon request from the Ventura Fish and
Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this final rule are the staff members of the
Ventura Fish and Wildlife Office in Ventura, California, in
coordination with the Pacific Southwest Regional Office in Sacramento,
California.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Regulation Promulgation
Accordingly, we hereby amend part 17, subchapter B of chapter I,
title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
unless otherwise noted.
Sec. 17.12 [Amended]
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2. Amend Sec. 17.12, in paragraph (h), by removing the entry for
``Camissonia benitensis'' under Flowering Plants from the List of
Endangered and Threatened Plants.
Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-02010 Filed 2-2-22; 8:45 am]
BILLING CODE 4333-15-P