www.gpo.gov]
[FR Doc No: 2022-06740]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2018-0042; FXES1113090FEDR-223-FF09E42000]
RIN 1018-BD00
Endangered and Threatened Wildlife and Plants; Reclassification
of the Endangered Layia carnosa (Beach Layia) to Threatened With
Section 4(d) Rule
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are
reclassifying the plant beach layia (Layia carnosa) from an endangered
to a threatened species under the Endangered Species Act of 1973, as
amended (Act), due to substantial improvements in the species' overall
status since its original listing as endangered in 1992. This action is
based on a thorough review of the best scientific and commercial data
available, which indicates that beach layia no longer meets the
definition of an endangered species under the Act. Beach layia will
remain protected as a threatened species under the Act. We are also
finalizing a rule under section 4(d) of the Act that provides for the
conservation of beach layia.
DATES: This rule is effective May 2, 2022.
ADDRESSES: This final rule, supporting documents we used in preparing
this rule, and public comments we received are available on the
internet at https://www.regulations.gov at Docket No. FWS-R8-ES-2018-
0042.
FOR FURTHER INFORMATION CONTACT: Tanya Sommer, Field Supervisor, Arcata
Fish and Wildlife Office, 1655 Heindon Rd., Arcata, CA 95521; telephone
707-822-7201.
Individuals in the United States who are deaf, deafblind, hard of
hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services. Individuals
outside the United States should use the relay services offered within
their country to make international calls to the point-of-contact in
the United States.
SUPPLEMENTARY INFORMATION:
Previous Federal Actions
On June 22, 1992, we listed the beach layia as an endangered
species (57 FR 27848). On September 29, 1998, we finalized a recovery
plan for this and six other coastal species (Service 1998, entire). In
2011, we completed a 5-year review (Service 2011, entire) and concluded
that there was evidence to support a decision to reclassify beach layia
from an endangered species to a threatened species under the Act. We
announced the availability of this review on April 27, 2012 (77 FR
25112).
On September 30, 2020, we proposed to reclassify beach layia from
an endangered species to a threatened species with a rule issued under
section 4(d) of the Act (``4(d) rule'') to provide for the conservation
of beach layia (85 FR 61684). On April 13, 2021, we reopened the public
comment period for the proposed rule and announced a public
informational meeting and public hearing (86 FR 19184), which we held
on April 29, 2021.
Summary of Changes From the Proposed Rule
In this rule, we make certain nonsubstantive, editorial changes to
some text that we presented in the proposed rule, and we include a
minor amount of new information (e.g., some updated abundance
information and new references) that we received or that became
available since the proposed rule published. However, this new
information did not change our analysis, rationales, or determination
for either
[[Page 18723]]
the reclassification of the beach layia to a threatened species
(``downlisting'') or the 4(d) rule for the species.
I. Reclassification Determination
Background
It is our intent to discuss only those topics directly related to
downlisting beach layia in this rule. For more information on the
species' description, life history, genetics, and habitat, please refer
to the May 8, 2018, SSA report (Service 2018, entire), which is a
comprehensive assessment of the biological status of beach layia. At
the time of listing (57 FR 27848; June 22, 1992), we determined that
human-induced disturbances (particularly off-highway vehicle (OHV)
activity, but also other disturbances from agriculture, pedestrians,
development, etc.) were significant threats to beach layia, resulting
in ongoing negative population or rangewide impacts. Thus, we
determined that the best available information indicated that the
species was in danger of extinction throughout all of its range. Since
that time, these activities have been significantly reduced, especially
OHV activity, with records of the species demonstrating positive
responses in abundance. Additionally, significant areas have been set
aside as preserves and conservation areas. After taking into
consideration our threats analysis and recovery criteria (Service 1998,
pp. 43-48), we have determined that the species no longer meets the
Act's definition of an endangered species but does meet the Act's
definition of a threatened species (likely to become an endangered
species within the foreseeable future). Given this information, the
best available scientific and commercial information now indicate that
the species has improved to the point that it can be downlisted.
The SSA report provides a thorough account of the species' overall
condition currently and into the future. In this discussion, we
summarize the conclusions of that assessment, including: (1) The
species' description, ecology, habitat, and resource needs; (2) beach
layia's current condition, including population abundance,
distribution, and factors affecting its viability; and (3) potential
future conditions. The full report can be accessed on the internet at
https://www.regulations.gov under Docket No. FWS-R8-ES-2018-0042.
Species Description
Beach layia is a succulent annual herb belonging to the sunflower
family (Asteraceae). Plants range up to 6 inches (in) (15.2 centimeters
(cm)) tall and 16 in (40.6 cm) across (Baldwin et al. 2012, p. 369).
Characteristics distinguishing beach layia from similar species include
its fleshy leaves; inconspicuous flower heads with short (0.08 to 0.1
in (2 to 2.5 millimeter (mm)) long) white ray flowers (occasionally
purple) and yellow disk flowers; and bristles around the top of the
one-seeded achene, or dry fruit (Service 1998, p. 43).
Ecology, Habitat, and Resource Needs of Beach Layia
Beach layia germinates during the rainy season between fall and
mid-winter, blooms in spring (March to July), and completes its life
cycle before the dry season (July to September) (Service 1998, p. 45).
Populations tend to be patchy and subject to large annual fluctuations
in size and dynamic changes in local distribution associated with the
shifts in dune blowouts, remobilization, and natural dune stabilization
that occur in the coastal dune ecosystem (Service 1998, p. 45). Beach
layia plants often occur where sparse vegetation traps wind-dispersed
seeds, but causes minimal shading. Seeds are dispersed by wind mostly
during late spring and summer months (Service 1998, p. 45).
Additionally, beach layia is self-compatible (i.e., able to be
fertilized by its own pollen), is capable of self-pollination, and is
visited by a variety of insects that may assist in cross-pollination
(Sahara 2000, entire). Although the role of pollinators is currently
unclear, sexual reproduction does add to genetic diversity.
Beach layia occurs in open spaces of sandy soil between the low-
growing perennial plants in the Abronia latifolia--Ambrosia chamissonis
herbaceous alliance (dune mat) and Leymus mollis herbaceous alliance
(sea lyme grass patches) (Sawyer et al. 2009, pp. 743-745, 958-959).
Typically, the total vegetation cover in both communities is relatively
sparse, and many annual species, including beach layia, colonize the
space between established, tufted perennials. Beach layia can also
occur in narrow bands of moderately disturbed habitat along the edges
of trails and roads in dune systems dominated by invasive species.
Coastal dune systems are composed of a mosaic of vegetation
communities of varying successional stages (see additional discussion
in section 4.4 of the SSA report (Service 2018, pp. 9-11)). Beach layia
occurs in early to mid-successional communities in areas where sand is
actively being deposited or eroding. Too much sand movement prevents
plants from establishing, but areas with some movement on a periodic
basis support early successional communities. Movement of sand by wind
is essential for the development and sustainability of a dune system.
Wind is also important to beach layia specifically because it is the
mechanism by which seeds are dispersed. The achenes (a small, dry, one-
seeded fruit that does not open to release the seed) have pappus
(feathery bristles) that allow them to be carried by wind for a short
distance. Although not all seeds may land on suitable habitat, this
adaptation allows the small annual to spread across the landscape into
uninhabited areas.
As a winter germinating annual, beach layia requires rainfall
during the winter months (November through February) for germination
and, although it is relatively tolerant to the drought-like conditions
of upland dunes, it does need some moisture through the spring to
prevent desiccation. Moisture also reduces the risk of burial, as dry
sand is more mobile and mortality caused by burial has been documented
(Imper 2014, p. 6).
The overall resource needs that beach layia requires in order for
individuals to complete their life cycles and for populations to
maintain viability are:
(1) Sandy soils with sparse native vegetation cover,
(2) Rainfall during the winter germination period,
(3) Sunlight (full sun exposure for photosynthesis), and
(4) Unknown degree of cross-pollination (to add to genetic
diversity).
Species Distribution and Abundance
For the purposes of our analysis as summarized in our SSA report
(Service 2018, entire), we grouped the populations by ecoregions based
on average annual rainfall (precipitation is directly correlated with
abundance for this species), habitat characteristics, and distance
between population centers. The North Coast Ecoregion contains the
largest and most resilient populations and receives the highest average
annual rainfall. The Central Coast Ecoregion receives less rain than
the North Coast Ecoregion but more than the South Coast Ecoregion, and
is comprised of three small populations on the Monterey peninsula that
are less resilient due to low abundance, although habitat quality is
high at two of the sites. The South Coast Ecoregion, both historically
and currently, consists of a single population on the Vandenberg Space
Force Base (SFB; formerly Vandenberg Air Force Base). Average annual
rainfall varies across the three ecoregions. Rainfall in the North
[[Page 18724]]
Coast Ecoregion is around 38 in (96 cm), while the Central Coast
Ecoregion receives 20 in (51 cm), and the South Coast Ecoregion
receives 14 in (36 cm) (National Oceanic and Atmospheric Administration
(NOAA) 2017).
Historical distribution of beach layia is similar to that known
currently, while abundance values have increased, primarily due to
increased survey efforts, amelioration of some threats, and a better
understanding of the species' reproduction pattern following years with
high amounts of rainfall. The current distribution includes populations
spread across dune systems in the following geographic areas
(ecoregions) covering more than 500 miles (mi) (805 kilometers (km)) of
shoreline in northern, central, and southern California (see figures 7-
13 and table 2 in the SSA report (Service 2018, pp. 15-24)):
North Coast Ecoregion:
Humboldt County--Freshwater Lagoon Spit, Humboldt Bay area, mouth
of the Eel River, McNutt Gulch, and mouth of the Mattole River
Marin County--Point Reyes National Seashore
Central Coast Ecoregion:
Monterey County--Monterey Peninsula
South Coast Ecoregion:
Santa Barbara County--Vandenberg SFB (located on part of the
Guadalupe-Nipomo Dunes)
Of the known historical populations, four are considered
extirpated, including the San Francisco population, the Point Pinos
population in the Monterey area, and two populations north of the Mad
River in Humboldt County. All currently extant populations were known
at the time of listing and when the recovery plan was finalized (1992
and 1998, respectively), with the exception of the Freshwater Lagoon
population discovered in 2000, at the far northern extent of the
species' range (see table, below). The total number of individuals
across the range of the species reported in the recovery plan was
300,000. However, sampling data collected at the Lanphere Dunes that
same year yielded an estimate of more than one million plants for that
subpopulation alone, which indicates the estimate in the recovery plan
was substantially lower than the actual number of individuals (Pickart
2018, pers. comm.).
Current conditions and trend information (when available) are
summarized below for the 13 extant populations (including the North
Spit Humboldt Bay population that is comprised of 8 subpopulations and
the largest proportion of plants throughout the species' range).
Information about extirpated populations is also shown in the table,
below. Additional information on current conditions of these
populations, as well as information about the four extirpated
populations, is found in section 7.0 of the SSA report (Service 2018,
pp. 25-38).
Table of Beach Layia's Historical and Current Populations, Subpopulations, Ownership, and Abundance Estimates, Based on the Best Available Scientific
and Commercial Information
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Most recent abundance
estimates (as of 2017,
Population Subpopulation Status Ownership 2017 Acres unless indicated
otherwise)
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NORTH COAST ECOREGION (Humboldt County)
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Freshwater Lagoon Spit........... ................... Extant................ National Park \1\ 3................. 469 \1\ (2021).
Service.
Mouth of Little River............ ................... Extirpated \2\........ California State 0..................... N/A.
Parks.
Mouth of Mad River............... ................... Extirpated \2\........ Humboldt County.... 0..................... N/A.
North Spit Humboldt Bay.......... Mad River Beach.... Extant................ Humboldt County, unknown............... unknown (2021).
Humboldt Bay
National Wildlife
Refuge (Refuge).
Bair/Woll.......... Extant................ Refuge, Private.... \3\ 13................ unknown (2021)
Lanphere Dunes..... Extant................ Refuge............. \3\ 33................ 1.3 million \3\ (combined
with Ma-le'l North).
Ma-le'l North...... Extant................ Refuge............. \3\ 29................ 1.3 million \3\ (combined
with Lanphere Dunes).
Ma-le'l South...... Extant................ Bureau of Land \3\ 48................ 2.1 million \3\
Management (BLM).
Manila North....... Extant................ Friends of the \3\ 82................ 1.4 million \3\.
Dunes, Manila
Community Services
District.
Manila South....... Extant................ Private............ \3\ 47................ unknown (2021).
Samoa/Eureka Dunes. Extant................ BLM, City of Eureka \3\ 49................ 6.7 million \3\.
Elk River........................ ................... Extant................ City of Eureka..... \3\ 15................ 468,000.
South Spit Humboldt Bay.......... ................... Extant................ California \3\ 83................ 6.1 million \3\.
Department of Fish
and Wildlife
(CDFW), BLM.
North Spit Eel River............. ................... Extant................ CDFW............... \3\ 37................ 4.7 million \3\.
South Spit Eel River............. ................... Extant................ Wildlands \3\ 1.5............... 11,307 \4\.
Conservancy.
McNutt Gulch..................... ................... Extant................ Private............ \5\ 1................. unknown (2021).
Mouth of Mattole River........... ................... Extant................ BLM................ \2\ 27................ 3.1 million \6\.
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NORTH COAST ECOREGION (Marin County)
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Point Reyes NS................... ................... Extant................ National Park \7\ 146............... 2.7 million \7\.
Service.
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CENTRAL COAST ECOREGION (San Francisco County)
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San Francisco.................... ................... Extirpated............ ................... 0..................... N/A.
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CENTRAL COAST ECOREGION (Monterey County)
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Point Pinos...................... ................... Extirpated \8\........ City of Pacific 0..................... Extirpated \3\.
Grove.
[[Page 18725]]
Asilomar State Beach............. ................... Extant................ California State \9\ 0.17.............. \9\ 1,541.
Parks.
Indian Village Dunes............. ................... Extant................ Private............ \10\ 0.55............. \11\ 199 (2018).
Signal Hill Dunes................ ................... Extant................ Private............ \5\ 1................. unknown (2021).
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SOUTH COAST ECOREGION (Santa Barbara County)
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Vandenberg SFB................... ................... Extant................ Department of \12\ 2.8 (2019)....... \12\ 11,902 (2019).
Defense.
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\1\ Census and mapping conducted by the National Park Service for both acreage (Julian 2017, pers. comm.) and abundance information (Julian 2021, pers.
comm.).
\2\ Source is the California Natural Diversity Database (CNDDB), 2017.
\3\ Mapping and population estimate conducted by the Arcata Fish and Wildlife Office, 2017.
\4\ Census conducted by the Arcata Fish and Wildlife Office (Goldsmith 2017, pers. obs.).
\5\ Actual amount of occupied habitat not determined; conservative estimate.
\6\ Estimate based on average density from monitoring data collected by BLM (Hassett 2017, pers. comm.).
\7\ Point Reyes NS, mapping from 2001-2003 and 2017 sampling conducted in Abbots Lagoon area (Parsons 2017, pers. comm.).
\8\ Presumed extirpated information by CNDDB 2017.
\9\ Mapping and census conducted by California State Parks (Gray 2017, pers. comm.).
\10\ Mapping conducted as part of a capstone project by a student at Monterey Bay State University (Johns 2009).
\11\ Estimate provided by consultant (Dorrell-Canepa 2018).
\12\ Mapping and acreage census conducted most recently in 2019 (ManTech SRS Technologies Inc. 2020, pp. 46-47).
Freshwater Lagoon Spit Population
This is the northern-most population of beach layia, which was
discovered during spring 2000, in northern Humboldt County at Redwood
National Park, currently encompassing approximately 3 acres (ac) (1.2
hectares (ha)) (Julian 2017, pers. comm.) and 469 plants (Julian 2021,
pers. comm.). A census of the population has been conducted every year
since 2000, and results indicate the population and individual patches
fluctuate substantially, with a peak of 11,110 plants recorded in 2003,
and as few as 263 plants in 2014 (Julian 2017, pers. comm.) (see figure
14 in the SSA report). The overall trend of this population is
declining, likely due to drought conditions and high cover of native
grasses (e.g., red fescue (Festuca rubra)) adversely affecting its
resource needs (i.e., reduction of area of sparse vegetative cover and
sunlight).
North Spit Humboldt Bay Population
Mad River Beach Subpopulation: The Mad River Beach subpopulation is
the northern-most subpopulation (one of eight) within the North Spit
Humboldt Bay population (hereafter referred to as ``North Spit'').
There is little information available for this subpopulation, which
resides on Humboldt County-owned land south of the mouth of the Mad
River, as well as the nearby Humboldt Bay National Wildlife Refuge-
owned Long parcel. Beach layia is fairly abundant and widely
distributed within the dune mat habitat in this area (Goldsmith 2018,
pers. obs.). However, the vegetation community is dominated by
invasive, nonnative species including European beachgrass (Ammophila
arenaria), annual grasses (ripgut brome (Bromus diandrus) and quaking
grass (Briza maxima)), and yellow bush lupine (Lupinus arboreus)
(Goldsmith 2018, pers. obs.). The subpopulation is conservatively
estimated to encompass approximately 1 ac (0.4 ha), although abundance,
distribution, and trend information is unknown. Suitable habitat is
limited due to overstabilization caused by a heavy invasion of
invasive, nonnative species. No efforts to restore ecosystem function
are currently under way, nor does the County or Refuge have any
restoration planned at this time.
Bair/Woll Subpopulation: This subpopulation occurs on the Refuge-
owned Bair parcel and privately owned Woll parcel; acquisition and
restoration of the entire subpopulation is a high priority for the
Refuge (Refuge 2013, p. 2). The majority of the area is dominated by
nonnative, invasive species including European beachgrass, iceplant
(Carpobrotus edulis and C. chilensis), yellow bush lupine, and annual
grasses (Pickart 2018, pers. comm.). To date, restoration has occurred
on the southwest corner of the Bair parcel. The subpopulation
encompasses approximately 13 ac (5.3 ha), although abundance and trend
information, and adequacy of resource needs--beyond the visible
reduction of sparse vegetative cover--are unknown.
Lanphere Dunes Subpopulation: This subpopulation occurs on the
Lanphere Dunes Unit of the Refuge and encompasses a conservative
estimate of approximately 33 ac (13 ha) (Service 2017, unpublished
data). Restoration has been underway since the 1980s, including removal
of invasive plants in an effort to restore ecosystem function. Ongoing
nonnative species removal/maintenance appears necessary in this area to
ensure that beach layia's resource needs are met. Over the years, this
population of beach layia has responded positively to restoration
actions and negatively to lack of rainfall in the winter months (see
figure 15 in the SSA report). In 2017, abundance was estimated for both
Lanphere Dunes and Ma-le'l North (see below) at approximately 1 million
individual plants (Pickart 2017, pers. comm.).
Ma-le'l North Subpopulation: This subpopulation resides directly
south of the Lanphere Dunes on the Ma-le'l North Dunes Unit of the
Refuge and comprises the northern end of the Ma-le'l Cooperative
Management Area (CMA), the southern portion of which is cooperatively
owned/managed by BLM (see Ma-le'l South Subpopulation, below).
Nonnative plants (i.e., European beachgrass, annual grasses, iceplant,
and yellow bush lupine) require continued control to maintain the open/
sparse vegetative cover and adequate sunlight needs that beach layia
relies on. The total subpopulation area is approximately 29 ac (11.7
ha) (Service 2017, unpublished data).
Ma-le'l South Subpopulation: Extending immediately south of the Ma-
le'l North subpopulation, the Ma-le'l South subpopulation is
approximately 48 ac (19.4 ha), had an estimate of approximately 2
million individuals in 2017, and is owned/managed by BLM. Restoration
has produced positive results in favor of beach layia persistence,
although periodic
[[Page 18726]]
maintenance of nonnative, invasive plants is necessary (Wheeler 2017,
pers. comm.) to ensure the open/sparse vegetative cover resource need
that beach layia relies on. Additionally, the best available data
indicate this subpopulation is less abundant during drought years
(2012-2015), followed by a positive spike in abundance following a
winter of substantial rainfall (Wheeler 2017, pers. comm.) (see also
figure 16 in the SSA report). The results of this subpopulation's
monitoring (i.e., that beach layia is less abundant during drought
years and more abundant following winters with heavy rainfall) are
likely representative of the species across its entire range, based on
the best available data to date regarding the species' ecology and
life-history characteristics.
Manila North Subpopulation: This subpopulation encompasses two
areas within close proximity to each other on lands owned/managed by
the Manila Community Services District (CSD) and the nonprofit
organization known as Friends of the Dunes. The total estimated
subpopulation (both areas) was approximately 1.4 million individuals in
2017, and occupies approximately 82 ac (33 ha). Efforts have been made
to remove nonnative, invasive species, but the efforts have not been
consistent and many areas have been re-invaded. Active management is
needed to ensure the availability of open/sparse vegetative cover and
adequate sunlight needs that beach layia relies on.
Manila South Subpopulation: This subpopulation is immediately south
of the Manila North subpopulation but resides on private property,
encompassing approximately 47 ac (19 ha) as reported most recently in
2017 (Service 2017, unpublished data). The area is dominated with
nonnative, invasive European beachgrass, iceplant, and annual grasses.
Abundance and trend information, and adequacy of resource needs--beyond
the visible reduction of area of sparse vegetative cover--are unknown.
Samoa/Eureka Dunes Subpopulation: This subpopulation is the
southern extent/limit of the North Spit (Humboldt Bay) population,
encompassing approximately 49 ac (20 ha) on lands owned/managed by both
BLM and the City of Eureka, and was estimated to include more than 6
million individuals in 2017. The BLM lands occupied by the species are
managed to provide both an Endangered Species Protection Area and an
open OHV use area. The remainder of the City's occupied habitat
includes an additional OHV use area, an industrial zoned area
containing an operational airport facility, and an 84-ac (34-ha) parcel
under conservation easement known as the Eureka Dunes Protected Area
held by the Center for Natural Lands Management. Some of this
subpopulation has been restored; however, nonnative, invasive species
continue to envelop open areas where beach layia plants occur. Some
monitoring data recently available indicate the protected areas harbor
a higher density of beach layia compared to the OHV area, including
increased density of beach layia over the past 2 years, which
correlates with increased precipitation over this same time frame (BLM
2016b). Similar to the monitoring results discussed for the Ma-le'l
South subpopulation, above, the results of this subpopulation's
monitoring (i.e., beach layia occurring at higher densities in the
restored, protected areas compared to heavily impacted OHV areas, and
high densities of beach layia plants correlating with years that have
heavy annual rainfall) are likely representative of the species across
its entire range, based on the best available data to date regarding
the species' ecology and life-history characteristics.
Elk River Population
This population is owned and managed by the City of Eureka on the
east shore of Humboldt Bay at the mouth of Elk River (see figure 8 in
the SSA report). The spit is approximately 1.2 mi (1.9 km) long by up
to 0.1 mi (0.16 km) wide, and beach layia occupies approximately 15 ac
(6 ha) and was estimated to include 468,000 individuals in 2017
(Service 2017, unpublished data). Trend information is not available,
although the most recent survey in 2017 indicates the area is dominated
by nonnative, invasive European beachgrass (Goldsmith 2017, pers.
obs.).
South Spit Humboldt Bay Population
The 5-mi (8-km) stretch of dune that supports beach layia extends
south from Humboldt Bay's entrance to the base of Table Bluff (see
figure 8 in the SSA report). The majority of this population is owned
by the California Department of Fish and Wildlife (CDFW) as the Mike
Thompson Wildlife Area, and the remainder is owned by BLM, which also
manages the entire population (BLM 2014b, p. 3). The best available
information suggests this population has increased in size since 2003,
currently encompassing 83 ac (34 ha) with a population estimate of
approximately 6 million plants (Service 2017, unpublished data). The
steady increase in occupied beach layia habitat over time is due to the
continued restoration effort to remove nonnative, invasive European
beachgrass and iceplant (BLM 2014b, p. 7; Wheeler 2017, pers. comm.).
Additionally, monitoring data available from two plots established in
2008 indicate increased density of beach layia following restoration,
decreased density during recent drought years, and a subsequent
increased density with high levels of annual precipitation (BLM 2014b,
p. 15). These monitoring data suggest that beach layia density
increases dramatically following restoration, that density settles to a
more moderate level as native plants fill in the previously invaded
habitat, and that density is also strongly correlated to rainfall.
North Spit Eel River Population
Located immediately south of the South Spit Humboldt Bay
population, this population encompasses 37 ac (15 ha) of conserved
lands within the CDFW's Eel River Wildlife Area and was estimated to
include 4.7 million individuals in 2017 (Service 2017, unpublished
data). The area is dominated by nonnative, invasive species including
European beachgrass, iceplant, yellow bush lupine, and annual grasses.
Trend information and adequacy of resource needs--beyond the visible
reduction of area of sparse vegetative cover--are unknown.
South Spit Eel River Population
On the south side of the Eel River mouth, this population occurs on
an area owned and managed by the Wildlands Conservancy, encompassing
approximately 1.5 ac (0.6 ha) of occupied beach layia habitat and
11,307 plants as recorded in 2017 (Service 2017, unpublished data). It
is likely that beach layia occurs in other areas of the property,
although additional survey data do not yet exist. The area harbors
nonnative, invasive European beachgrass that is reducing the
availability of open sandy areas for beach layia to persist.
McNutt Gulch Population
This population was discovered in 1987, on private property near
the mouth of McNutt Gulch. Varied numbers of plants have been recorded,
ranging from 200 to 500 plants (CNDDB 2017; Imper 2018, pers. comm.),
although a complete survey has not yet occurred. The occupied area is
estimated to be less than 1 ac (0.4 ha) (Imper 2018, pers. comm.). A
comparison of current and historical aerial photos indicate
encroachment of European beachgrass. At this time, there
[[Page 18727]]
is no beach layia trend information available.
Mouth of Mattole River Population
This is the southern extent of the known beach layia populations
within Humboldt County. This population occupies approximately 27 ac
(11 ha) within part of the King Range National Conservation Area and
was estimated to include 3.1 million individuals in 2017 (Hassett 2017,
pers. comm.). The area is owned and managed by BLM and is located 35 mi
(56 km) south of the entrance to Humboldt Bay. Monitoring data
available from 2017 indicate this population had a spike in abundance
that year compared to the previous year (estimated to be 725,000
individuals) that correlates to an increase in precipitation (Hassett
2017, pers. comm.).
Point Reyes Population
The next known population of beach layia to the south is located in
Marin County, 200 mi (322 km) south of Humboldt Bay, in the dunes
between Kehoe Beach Dunes and the Point Reyes lighthouse at Point Reyes
(Service 1998, p. 44; figure 11 in the SSA report). This large dune
system contains approximately 146 ac (59 ha) of dunes occupied by beach
layia within 14 geographically concentrated areas, based on mapping
conducted since 2001 (Point Reyes 2010, unpaginated). However, some of
those areas were no longer occupied in 2017 (Goldsmith 2017, pers.
obs.). The population was estimated to be 2.7 million in 2017, although
varying levels of survey intensity over the years hamper our ability to
track population trends (Parsons 2017, pers. comm.). However, sampling
conducted from 2015-2017 in the Abbots Lagoon area, which includes
recently restored areas, estimate increasing abundance (Parsons 2017,
pers. comm.), which also correlates with an increase in precipitation.
Restoration is ongoing and includes removal of nonnative, invasive
European beachgrass and iceplant, which occur at various densities
throughout the 14 subpopulations (Parsons 2017, pers. comm.).
Asilomar State Beach Population
The northern-most extant population in Monterey County was
previously thought to be extirpated but was rediscovered in 1990
(Service 1998, p. 44). Since the time of the first survey effort in
1994, in which 192 plants were found, subsequent survey efforts found
the abundance to remain relatively static within the same geographical
footprint (Service 2011, p. 22; Gray 2017, pers. comm.). In 2017, the
occupied beach layia habitat consisted of a sparse layer of native dune
mat vegetation with no presence of nonnative, invasive species
(Dorrell-Canepa 2017, pers. comm.), and the population appears
consistently present when climate conditions are favorable (Gray 2018,
p. 3). Monitoring is ongoing. Counts of this population from 2017 total
1,541 plants within 0.17 ac (688 square meters) (Gray 2017, pers.
comm.); this 2017 count is the highest on record for this population,
possibly correlated with the high amount of rainfall during the
germination period. Additional survey results include total counts of
287 plants in 2019, 442 plants in 2020, and 54 plants in 2021 (Allen
2021, pers. comm.), noting the lower counts since 2000 coincide with
drought conditions. Overall, this population appears to be stable given
its consistent year-to-year presence and relative protection from
threats, including accounting for the expected lower count numbers
detected during drought conditions/years.
Indian Village Dunes Population
The second of three populations in Monterey County, the Indian
Village Dunes population occurs on restored dune habitat owned by the
Pebble Beach Company. The most recent survey efforts for this
population include information for 2009 (1,783 plants), 2017 (1,200
plants), and 2018 (199 plants), the latter of which is 83 percent lower
plant abundance than what was expressed during the 2017 monitoring
efforts (Dorrell-Canepa 2018, pers. comm.). The overall area where the
species occurs is approximately 0.55 ac (0.2 ha) (Johns 2009, entire).
Drought conditions existed during 2018, which may have contributed to a
lower abundance during that year; however, with the absence of long
term data, correlations with covariates related to population trends
are not possible to make with certainty. No additional information on
distribution and abundance trends is available from 2019 to present.
This area is preserved through a conservation easement, although there
is no management plan, funding, or requirement for additional
monitoring or restoration work. Given the unknowns surrounding the
population's current abundance, additional surveys and possibly
recovery efforts are warranted.
Signal Hill Dunes Population
This southern-most population within Monterey County is located
less than 1 mi (1.6 km) south of the Indian Village Dunes population
and is also owned by Pebble Beach Company. No recent survey information
exists. The best available information is from a 2001 survey effort
indicating plants occurring in five semi-isolated areas (Zander
Associates 2001, p. 7), likely encompassing less than 1 ac (0.4 ha). No
information is known regarding adequacy of the area to meet the
species' resource needs.
Vandenberg SFB Population
The southern-most population of beach layia occurs on Vandenberg
SFB in Santa Barbara County, separated by a distance of approximately
235 mi (378 km) from the Signal Hill Dunes population. This area
receives less annual rainfall than the Central and North Coast
Ecoregions (i.e., 14 in (36 cm) as compared to 20 in (51 cm) and 38 in
(96 cm), respectively) (NOAA 2017). Although surveys do not occur
annually, information is available for 2012, 2016, 2017, and 2019 for
all known occupied habitat. The most recent (2019) census includes both
acreage occupied and abundance information, resulting in 2.8 ac (1.1
ha) and 11,902 individual plants, indicating a 43 percent increase in
population abundance compared to 2017 survey information (ManTech SRS
Technologies, Inc. 2020, pp. 46-47). Due to varying levels of survey
effort, there is no beach layia population trend information for this
entire population, although the number of beach layia within a
restoration area on the south side of the Vandenberg SFB demonstrates
wide fluctuations in population size from year to year, which is often
correlated to the amount of rainfall (see table 4 in the SSA report).
Although restoration of beach layia habitat on Vandenberg SFB has
occurred and is expected to continue into the future, it is highly
stabilized due to the presence of nonnative, invasive species,
including iceplant, European beachgrass, and veldt grass (Ehrharta
erecta) (Schneider and Calloway 2017, p. 14; ManTech SRS Technologies,
Inc. 2020, p. 49), thus reducing the open sandy areas that beach layia
relies on.
Summary of Factors Affecting the Species
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for listing
species, reclassifying species, or removing species from listed status.
``Species'' is defined by the Act as including any species or
subspecies of fish or wildlife or plants, and any distinct vertebrate
population segment of fish or wildlife that interbreeds when
[[Page 18728]]
mature (16 U.S.C. 1532(16)). 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 downlisting a species
from endangered to threatened. Under our regulations at 50 CFR
424.11(c) and (d), we may downlist a species if, after a review of the
species' status, the best available scientific and commercial data
indicate that the species no longer meets the definition of an
endangered species, but that it meets the definition of a threatened
species.
For the purposes of this analysis, we evaluate whether or not beach
layia meets the Act's definition of an ``endangered species'' or a
``threatened species,'' based on the best scientific and commercial
information available. 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 directly affect 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 species' expected response and
the effects of the threats--with regard to 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 and 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 with regard to those actions and conditions that will have
positive effects on the species--such as any existing regulatory
mechanisms or conservation efforts. The Secretary determines whether
the species meets the Act's definition of an ``endangered species'' or
a ``threatened species'' only after conducting this cumulative analysis
and describing the expected effect on the species now and in the
foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
foreseeable future extends only so far into the future as we 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.
In our determination, we correlate the threats acting on the
species to the factors in section 4(a)(1) of the Act. Our analysis
includes examining: (1) The threats at the time of listing in 1992 (or
if not present at the time of listing, the status of the threat when
first detected); (2) conservation actions that have been implemented to
meet the downlisting criteria (see also Recovery and Recovery Plan
Implementation, below) or that otherwise mitigate the threat; (3) the
current level of impact that each threat may have on the species or its
habitat; and (4) the likely future impact of threats on beach layia.
As stated previously, at the time of listing (57 FR 27848; June 22,
1992), we determined that human-induced disturbances (particularly OHV
activity, but also other disturbances from agriculture, pedestrians,
development, etc.) were significant threats to beach layia, resulting
in ongoing negative population or rangewide impacts; thus, we
determined that the best available information indicated that the
species was in danger of extinction throughout all of its range. Since
that time, these activities have been significantly reduced, especially
OHV activity, with records of the species subsequently demonstrating
positive responses in abundance. Additionally, significant areas have
been set aside as preserves, conservation areas, and conservation
easements.
This current analysis considers the beneficial influences on beach
layia, as well as the potential risk factors (i.e., threats) that are
either remaining or new and could be affecting beach layia now or in
the future. In this rule, we will discuss in detail only those factors
that could meaningfully impact the status of the species. The primary
risk factors affecting beach layia are the present and threatened
modification or destruction of its habitat from overstabilization/
competition with invasive species (Factor A from the Act), modification
of its habitat from changing climate conditions (Factor E),
modification of its habitat from human-influenced erosion/high level of
disturbance (e.g., recreation) (Factor A), and modification of its
habitat from vertical land movement/shoreline erosion (i.e., varying
levels of uplift and subsidence, as described below) (Factor A).
Additional threats to the species include development (Factor A) and
herbivory/disease (Factor C); however, our analysis shows that while
these threats may be impacting individual beach layia plants, they are
not having species-wide impacts. For a full description of all
identified threats, refer to chapter 8 of the SSA report (Service 2018,
pp. 38-48).
Overstabilization/Competition With Invasive Species
Areas described as overstabilized in this document (and discussed
in detail
[[Page 18729]]
in section 8.2.1 of the SSA report (Service 2018, pp. 41-43)) have high
vegetation cover and restricted sand movement either due to presence of
nonnative, invasive species or presence of species (native or
nonnative) that move in after an area is stabilized by invasive
species. Overstabilization caused by invasive species, as defined here,
is a different ecological process from natural succession in which
native vegetation changes over time from the semi-stable dune mat
community to more stabilized communities. Both overstabilization and
natural succession have a negative impact on the abundance of beach
layia because the species requires open sand to colonize an area (see
Ecology, Habitat, and Resource Needs of Beach Layia, above). At this
time, the best available information indicates that large portions of
the range of beach layia have been made unsuitable by overstabilization
and competition with both native and nonnative, invasive species
(Service 2017, pp. 41-43). However, dune systems that are naturally
succeeding often still contain areas of semi-stable dunes--although
they may shift over time--that are suitable for beach layia.
One population--the Freshwater Lagoon Spit--is the only beach layia
population that is currently impacted by stabilization caused by native
species, i.e., red fescue (Samuels 2017, pers. comm.). No measures are
in place to address the stabilization effects.
The remainder of beach layia's range is subject to past
introduction and invasion of its habitat by a variety of nonnative,
invasive plant species (Service 1998, p. 45), which is one reason why
the species was listed as an endangered species (57 FR 27848; June 22,
1992). These nonnative species adversely affect the long-term viability
of coastal dune plants, including the entire distribution of beach
layia (with the exception of the Freshwater Lagoon Spit population, as
described above), through either direct competition for space (56 FR
12318, March 22, 1991, p. 12323); stabilization of the dunes (56 FR
12318, March 22, 1991, p. 12318); or, in some cases, enrichment of the
soils, which then stimulate invasion by other aggressive species (Maron
and Connors 1996, p. 309; Pickart et al. 1998, pp. 59-68). Nonnative,
invasive species are currently present at all populations throughout
the species' range, although to a lesser degree at the Lanphere Dunes,
Ma-le'l North, and Ma-le'l South subpopulations; the Mouth of Mattole
River population; and Asilomar State Beach and Indian Village Dunes
populations due to restoration activities.
The most common invasive species (European beachgrass, iceplant,
yellow bush lupine, and ripgut brome) in dune systems throughout the
range of beach layia are described in section 8.2.1.1 of the SSA report
(Service 2018, pp. 42-43). The high level of invasion throughout the
range of beach layia suggests these taxa will continue to invade beach
layia habitat (i.e., invasive plants occur at varying densities within
and adjacent to all extant populations), necessitating routine and
long-term management actions. Many of the invasive plants have been
mapped within the various dune systems occupied by beach layia (Johns
2009, p. 24; Point Reyes 2015, p. i; Mantech SRS Technologies 2018, p.
1), and there have been efforts for their removal or control (Service
2011, p. 10; Point Reyes 2015, p. 105; Mantech SRS Technologies 2018,
p. 1). However, much potentially suitable habitat for beach layia
remains to be restored, as identified in the 1992 recovery plan (i.e.,
the portion of the species' range where the majority of occurrences are
including the Mouth of the Mad River, the greater part of the North and
South Spits of Humboldt Bay, Elk River Spit, the North and South Spits
of the Eel River, McNutt Gulch, as well as Point Reyes, Signal Hill
Dunes, and Vandenberg SFB (recovery criterion 2, see section 11.0 in
the SSA report)), in addition to routine maintenance to control this
threat into the future.
Overall, overstabilization and competition with native or
nonnative, invasive species are reducing the availability of sandy
soils with sparse vegetative cover, causing beach layia throughout its
range to compete for open sandy space, sunlight, and rainfall during
its winter germination period. Efforts at some locations to remove
invasive species (such as, but not limited to, European beachgrass,
iceplant, yellow bush lupine, and ripgut brome) that are adversely
affecting resources needed by beach layia are reducing these negative
influences and thus have improved the species' current resiliency at
many populations. However, the ability of land managers to continue
manage the ongoing threat of invasive species into the future is
uncertain.
Changing Climate Conditions
Changes in weather patterns have been observed in recent years and
are predicted to continue (Frankson et al. 2017, p. 1). Changes can
include extreme events such as multi-year droughts or heavy rain events
(Frankson et al. 2017, pp. 2-5). All of these have the potential to
remove, reduce, and degrade habitat, as well as remove individual
plants, reduce germination and survival rates, and reduce fecundity.
The best available scientific and commercial information at this time
does not indicate how historical changes in climate may have affected
beach layia, although recent drought conditions have had a negative
impact on population size (BLM 2016a, p. 6; ManTech SRS Technologies
2016, p. 29).
The best available information indicates that recent drought
conditions (2012-2016, 2018, 2020, and currently in 2021) negatively
influence the abundance of beach layia (e.g., lack of rainfall for
germination, reduced fecundity, desiccation during dry periods in the
growing season) across the species' range (e.g., BLM 2016a, p. 6; BLM
2014b, p. 16; Pickart 2017, pers. comm.; Gray 2017, pers. comm.;
ManTech SRS Technologies 2018, p. 9). Following the 2012-2016 drought
period, a subsequent increase in abundance was seen in 2017,
corresponding with the increase in rainfall at the end of this multi-
year drought period, indicating the seedbank for the species has some
ability to withstand multi-year droughts. However, at this point in
time, the full longevity of the seedbank is unknown; therefore, it is
impossible to predict whether the species could withstand even longer
drought periods or whether drought conditions could reach a point at
which the seedbank would no longer be viable. All that can be
reasonably concluded from the available information is that multi-year
droughts have a negative effect on beach layia abundance, reducing
above-ground vegetative growth, and that the seedbank for the species
appears to be able to withstand at least 4 years of consecutive drought
and then regenerate new vegetative growth once more normal rainfall
patterns return (noting a tendency for the species to experience a
spike in abundance following a drought).
The Intergovernmental Panel on Climate Change (IPCC) states it is
likely that the intensity and duration of droughts will increase on a
regional to global scale (IPCC 2014, p. 53). We used the California
Climate and Hydrology Change Graphs, a graphing tool that presents
climate and hydrology data from the California Basin Characterization
Model (BCM) dataset (Flint et al. 2013, entire), to analyze the
potential impact of drought on beach layia in the future. Four future
climate scenarios demonstrate a range of precipitation and temperatures
projected by the 18 scenarios available from the BCM. We chose to use
the
[[Page 18730]]
climatic water deficit calculations because they take into account
changes in air temperature, solar radiation, and evapotranspiration,
and can be used as an estimate of drought stress on plants (Stephenson
1998, p. 857).
There are large uncertainties with respect to future precipitation
levels; some scenarios predict a hot dry future, while others predict a
hot wet future. While climatic water deficit magnitudes vary across the
models, the trends are consistent in that all projections indicate
increasing values. Climatic water deficit values, both historical
(1931-2010) and projected (2021-2050), are higher in watersheds in the
Central and South Coast Ecoregions. The South Coast Ecoregion has the
highest values and is therefore considered to be the most vulnerable to
stress caused by drought, followed by the Central Coast Ecoregion, and
then the Point Reyes population at the southern end of the North Coast
Ecoregion. The three watersheds in Humboldt County (which encompass all
of the North Coast Ecoregion populations except Point Reyes) are least
likely to be stressed by drought, both currently and into the future,
but the trend in climatic water deficit is still increasing. See
section 8.2.2.1 of the SSA report for additional discussion regarding
impacts associated with drought.
While no definitive conclusions can be drawn about the potential
for drought alone to result in permanent loss of beach layia
populations, a compounding factor with changing climate conditions is
the relationship to invasive plant species. Many of the invasive
species that negatively affect beach layia or its habitat, such as
European beachgrass and iceplant, are drought tolerant (Hertling and
Lubke 2000, pp. 522-524; Hilton et al. 2005, pp. 175-185; Earnshaw et
al. 1987, pp. 421-432). During a multi-year drought, it is possible
that invasive species could persist and spread into areas where beach
layia declined, resulting in less open space habitat for germination of
beach layia when a sufficient amount of rainfall returns (assuming the
seedbank survives).
The high level of abundance of beach layia in 2017 suggests that
the potential for invasive species to take over habitat and exclude
beach layia regeneration is not a significant threat, at least for
drought periods up to 4 years in duration. However, the likelihood of
the increased duration and intensity of drought into the future
increases the potential for this outcome, which could be particularly
problematic for those populations in the Central and South Coast
Ecoregions.
In addition to drought, rising sea levels caused by changing
climate conditions can lead to removal or reduction of habitat, and the
removal of individual plants, seedbanks, and whole populations.
However, an analysis conducted using representative concentration
pathway (RCP) 8.5 and local sea level rise projections for 2050 based
on the methodology developed by Kopp et al. (2014, pp. 384-393) as
presented in Rising Seas in California (Griggs 2017, entire) suggests
that rising seas are not likely to significantly influence beach layia
into the foreseeable future, and it is unknown how changes in sea
levels may have affected the species in the past. Likewise, projections
for the lower emission scenario indicate that rising seas under RCP 4.5
are not likely to negatively influence beach layia (Griggs 2017,
entire). For more information on the analysis conducted on the effects
of sea level rise, please refer to section 10.3.2 of the SSA (Service
2017, pp. 52-58).
Erosion/High Level of Disturbance
Erosion of soil in a dune system can be caused by many factors, and
any form of erosion or heavy soil disturbance can result in the removal
of beach layia habitat, individual plants, and seedbank. Erosion and
disturbance of beach layia habitat discussed in this document is
associated with high levels of disturbance caused by pedestrian,
equestrian, OHV, and grazing activity.
First, the best available information indicates that trampling from
both pedestrian and equestrian activities occur at insignificant levels
at most populations throughout beach layia's range, with the possible
exception of the Signal Hill Dunes population on the Monterey Peninsula
(Service 2011, p. 11), although that current level of impact is
unknown. Beach layia has a strong preference for moderately disturbed
habitat adjacent to roads and trails (whether pedestrian or equestrian)
in what otherwise would be unoccupied habitat (Service 2011, p. 11).
Dispersed equestrian use has been allowed at the South Spit Humboldt
Bay population since BLM began management of the area in 2002, and
beach layia abundance has remained high, suggesting that dispersed
equestrian use, at least where large areas of occupied habitat are
concerned, is compatible with large populations (Wheeler 2017, pers.
comm.).
Second, OHV activity within beach layia habitat across the species'
range is significantly reduced since the time of listing. Most occupied
habitat is restricted from OHV use with the exception of five
populations in Humboldt County. Beach layia abundance is lower within
riding areas as compared to preserved areas that are closed to OHV use
and managed to reduce threats to the species (BLM 2016a; BLM 2016b;
Hassett 2017, pers. comm.; see also figure 17 in the SSA report).
Additionally, within the OHV riding area, beach layia is restricted to
the edges of trails, and the remainder of the habitat is overstabilized
and dominated by invasive vegetation. It is possible that the higher
beach layia abundance in the protected areas of the study could have
more to do with invasive species management than eliminating the direct
impacts of OHV use (Wheeler 2017, pers. comm.).
Finally, livestock trampling was identified as a threat when beach
layia was listed (57 FR 27848; June 22, 1992). Livestock trampling
previously occurred at the Mouth of Mattole River population, but
fencing was replaced in 1997, thereby eliminating this threat (BLM
2014a, p. 5). Additionally, livestock were removed from the South Spit
Eel River population that occurs on the Wildlands Conservancy Preserve
(Allee 2018, pers. comm.). At this time, the only populations that are
exposed to livestock are the McNutt Gulch population (Imper 2018, pers.
comm.) and some portions of the Point Reyes population (Parsons 2018,
pers. comm.). Observations made at Point Reyes suggest that livestock
trampling is negatively impacting portions of the population there
(Goldsmith 2018, personal observation). The current status of the
McNutt Gulch population is unknown.
Overall, the best available scientific and commercial information
suggests that human-induced disturbances are not resulting in
significant, negative, population-wide or rangewide impacts given most
beach layia habitat is under some level of protection and responds well
to slight disturbance. However, some risk to the species' viability
remains for some populations in the North Coast Ecoregion because of
trampling or crushing of individuals plants.
Vertical Land Movement/Shoreline Erosion
Uplift or subduction (i.e., the geological process that occurs at
convergent boundaries of tectonic plates where one plate moves under
another and is forced to sink due to gravity into the mantle) both
during and between seismic events can affect whether a beach/shoreline
is prograding (i.e., advancing toward the sea as a result of the
accumulation of waterborne
[[Page 18731]]
sediment) or eroding. Vertical land movement (VLM) is site-specific and
is influenced by a number of factors. Direction and magnitude differ
depending on location, although most areas around Humboldt Bay,
including areas near beach layia habitat, are subsiding (Patton et al.
2017, pp. 26-27). The San Andreas Fault, which runs along the eastern
edge of Point Reyes and runs parallel to the Monterey Peninsula,
regularly experiences plate movements. Removal or reduction of both
habitat and individual plants can be caused by sea level rise
associated with subduction while uplift may counterbalance those
effects. Sudden movements associated with earthquakes can cause
tsunamis, which have the potential to remove habitat and whole
populations in one event.
The portion of shoreline where beach layia occurs at Point Reyes
has a high to very high vulnerability index (Pendleton et al. 2005, pp.
3, 15), indicating that this population is subject to removal of
occupied habitat caused by shoreline erosion. Similarly, the Monterey
coastline where beach layia occurs has been shaped by varying levels of
uplift and subsidence (Revell Coastal 2016, p. 2-1). The dunes at
Asilomar are less vulnerable to erosion compared to those on the
northern portion of the peninsula (EMC Planning Group 2015, figure 5).
The best available information does not suggest any current or
historical VLM or shoreline erosion for the Monterey Peninsula; thus,
areas where beach layia occur appear relatively safe. No VLM/shoreline
erosion information is available for Vandenberg SFB. While some
populations are more at risk than others to lose habitat via VLM based
on historical data, coastal dune habitat will always be threatened by
the potential loss of large expanses of habitat caused by subduction
events or tsunami.
As with many ecosystems, dunes often undergo periods of cyclic
stabilization and rejuvenation (Pickart and Sawyer 1998, p. 4).
Rejuvenation events can be the result of changes in relative sea level,
which in turn are attributed, at least in the past, to tectonic
activity, including tsunamis (such as the following, as cited in
Pickart and Sawyer 1998: Vick 1988, Pacific Watershed Associates 1991,
Clarke and Carver 1992, and Komar and Shih 1993). Both uplift and
subsidence can theoretically trigger reactivation of dunes, with the
former potentially building or expanding dunes through increased
sediment supply, while the latter can destroy dunes through increased
wave action or limit the expansion of new dunes (Pickart and Sawyer
1998, p. 4). The southern end of the North Spit Humboldt Bay population
and the South Spit Eel River population are particularly vulnerable to
shoreline erosion (McDonald 2017, pp. 10-13).
Current Condition
The estimated abundance of beach layia is currently 30 million
plants and the estimated occupied habitat is approximately 595 ac (240
ha). This is an increase of approximately 28 percent for abundance and
an increase of approximately 65 percent for occupied habitat since the
2017 5-year review (Service 2011, entire).
All of the threats discussed above have the potential to negatively
influence the resiliency of beach layia populations; however, the
threat that currently has the greatest negative impact on populations
or the species rangewide is overstabilization/competition with invasive
species. This threat reduces abundance of beach layia more than any
other and has the potential to have significant negative impacts to
populations across the range of the species by reducing the amount of
open sandy areas with sparse vegetation that it needs. Although habitat
has been restored for some populations, the threat of invasive species
expanding their presence throughout the species' range is always
present, especially because most restored sites are near currently
invaded areas, and has the potential to increase if changing climate
conditions result in longer duration and higher intensity multi-year
droughts. Efforts to remove nonnative or native, invasive species and
reverse the effects of overstabilization are ongoing throughout the
species' range (Martinez et al. 2013, p. 159; BLM 2014b, p. 17; ManTech
SRS Technologies 2016, p. 1; California Department of Parks and
Recreation (CDPR) 2004, p. 3-14). However, these efforts are time
consuming and costly. Some current management plans include restoration
for some populations; however, many populations have no plans for
restoration, and funding into the future is determined on an annual
budgetary basis by CDPR and Vandenberg SFB. Thus, this threat is not
considered to be causing a significant negative influence across the
entire range of beach layia at this time, but is reasonably likely to
in the foreseeable future.
Uncertainties regarding the species' ecology and current impacts
(or level of impacts) to beach layia or its habitat include (but are
not limited to): Defined timelines for implementation of restoration
and ongoing control of nonnative, invasive species; limiting factors
for the populations in Monterey County; seedbank longevity; and the
optimal disturbance regime to maximize recovery efforts (see also
section 9.1.2 in the SSA report (Service 2018, p. 50)).
Future Condition Projections
For the purpose of this rule, we define viability as the ability of
the species to sustain populations in the wild over time. This
discussion explains how the stressors associated with
overstabilization/competition with invasive species, changing climate
conditions, erosion/high level of disturbance (e.g., recreation), and
vertical land movement/shoreline erosion will influence resiliency,
redundancy, and representation for beach layia throughout its current
known range using the most likely plausible scenario. The future
timeframes evaluated include a range of times that cover a variety of
management plans that are expected to last the next 10 to 20 years and
predictions for local sea level rise in the future through the year
2050. Thus, foreseeable future for this analysis is a range from
approximately 15 to 30 years from now.
Suitable occupied and unoccupied habitat is limited to coastal dune
systems that are subject to modification or destruction by
overstabilization/competition with nonnative and native invasive
species, changing climate conditions (which can result in drought and
sea level rise), erosion from various disturbance activities (e.g.,
recreation), and VLM/shoreline erosion (see section 6.2 in the SSA
report (Service 2018, pp. 14-24)). Significant habitat modification in
any portion of beach layia's range could lead to reduced population
size, growth rate, and habitat quality for the affected population(s),
thus resulting in a higher risk level for the species' viability into
the future. Although the threats described above are generally spread
throughout the species' range, the best available data indicate that
the most vulnerable populations, given current and potential future
impacts to availability of sparsely vegetated native dune mat habitat
subject to periodic disturbance during the dormant season, include:
North Coast Ecoregion--Freshwater Lagoon Spit, portions of
North Spit Humboldt Bay (including the Mad River Beach, Bair/Woll,
Manila South, and Samoa/Eureka Dunes subpopulations), portions of South
Spit Humboldt Bay, Elk River, North Spit Eel River, South Spit Eel
River, McNutt Gulch, and unrestored portions of Point Reyes;
[[Page 18732]]
Central Coast Ecoregion--Signal Hill Dunes; and
South Coast Ecoregion--Vandenberg SFB.
This includes three of the four largest areas occupied by the
species in the North Coast Ecoregion (see table, above). Depending on
the severity of the impacts to the resources needed by beach layia,
populations or portions thereof could be lost in the future.
Populations in areas where habitat is limited or unsuitable in the
future (see section 8.1 in the SSA report (Service 2018, pp. 39-41))
are likely to be more susceptible to threats that continue or worsen in
the future, potentially resulting in reduced population(s) size and
growth rate. Loss of habitat caused by invasion of nonnative, invasive
species is the most prominent negative influence on beach layia into
the future.
The populations in the Central and South Coast Ecoregions are at
the greatest at risk of declines in abundance in the future based on
their small size, limited distribution and expected continued threats
in the future, particularly competition with nonnative, invasive
species and drought stress. No projected drought trends are available;
however, extreme events, including multi-year droughts, are expected to
increase in likelihood into the future (Frankson et al. 2017, pp. 2-5),
and an analysis on climatic water deficit shows an increasing trend
throughout the range of the species into the future, particularly those
in the Central and South Coast Ecoregions (see section 8.2.2.1 of the
SSA report).
Overall, it is likely that the most significant threat to beach
layia's resiliency in the future will be continued overstabilization/
competition with invasive species and, to a lesser extent, changing
climate conditions, erosion/high levels of disturbance, and VLM/
shoreline erosion. These threats are likely to result in a reduction in
abundance of beach layia throughout its range stemming from removal,
reduction, and degradation of habitat, and reduced abundance, such as
from reduced germination, fecundity, and survival rates.
Many populations are likely to see a reduction in abundance of
beach layia because there are no existing management activities or no
management plans that provide long-term assurances that management
activities will continue into the future to improve existing suboptimal
habitat conditions (e.g., invasive species), especially if the species
were to be delisted. Very few populations have been managed in such a
way that the natural processes that create habitat for the species are
able to operate unhindered (i.e., Lanphere Dunes and Ma-le'l North and
South). The remaining populations are dependent on continued management
into the future to improve habitat conditions.
The low abundance and limited distribution of the species in the
Central and South Coast Ecoregions make those populations particularly
vulnerable to stochastic events, including, but not limited to,
drought. It is likely that the intensity and duration of droughts will
increase on a regional to global scale (IPCC 2014, p. 53). The high
likelihood of increased intensity and duration of droughts in
California (Frankson et al. 2017, pp. 2-5) is expected to negatively
influence beach layia populations throughout the species' range because
rain is required for germination, but particularly in the Central and
South Coast Ecoregions due to high projections of climatic water
deficit in those watersheds. A compounding factor in the analysis of
drought effects on beach layia is that two of the most common
nonnative, invasive species that compete for habitat with beach layia--
European beachgrass and iceplant--are both drought-tolerant (Hertling
and Lubke 2000, pp. 522-524; Lechuga-Lago et al. 2016, pp. 8-9).
Resiliency, Redundancy, and Representation
To characterize beach layia's viability and demographic risks, we
consider the concepts of resiliency, redundancy, and representation,
and how the threats may negatively impact the resource needs that it
relies on for survival and reproduction. Taking into account the
impacts of the most significant threats and the potential for
cumulative impacts to the resources that the species needs, our
projections for future conditions are that beach layia's ability to
withstand and bounce back from stochastic events (resiliency) is
currently high and likely to remain so into the future. This resiliency
is demonstrated by the increased abundance at most populations during a
heavy rainfall year (e.g., 2017; table 2 in the SSA report (Service
2018, pp. 22-24)) that followed 4 years of drought conditions. However,
this rebound in 2017 did not occur throughout all of the species'
range, including at some of the smaller populations.
No significant known genetic differences exist between populations
or among ecoregions, per a genetic study that indicates homogeneity
across the species range (Baldwin 2006, pp. 72-73), which suggests a
low level of ability to adapt to change (representation). Currently,
multiple populations throughout the historical range of the species
provide adequate redundancy and a higher outlook of viability in the
face of potential catastrophic events.
Of greater concern for beach layia's viability into the future is
that the populations in the Central and South Coast Ecoregions are
significantly smaller than the populations in the North Coast
Ecoregion, thus decreasing the species' representation and redundancy
in a large proportion of the species' range if these populations are
lost in the future. The smaller abundance and acreage of these
populations compared to the populations in the North Coast Ecoregion
increases the chances of population loss in the foreseeable future,
especially given the likelihood that:
(1) Overstabilization/competition with invasive species is not
adequately being addressed (e.g., lack of staff and funding for
invasive species control at some locations).
(2) Drought conditions are expected to worsen (continued multi-year
droughts that result in reduced annual precipitation levels) across the
species' range, but particularly in the Central and South Coast
Ecoregions.
(3) Drought conditions can possibly benefit the abundance and
spread of drought-tolerant, invasive plants that are already present
and adversely impacting the resources that beach layia relies on.
See section 10.3 in the SSA report (Service 2018, pp. 52-59) for
additional analysis and discussion of factors influencing the viability
of beach layia in the future. Taking into account the impacts of the
most significant threats and the potential for cumulative impacts to
the resource needs, our projections for future conditions are that
beach layia's ability to withstand and bounce back from stochastic
events (resiliency) is currently high and likely to remain so into the
future. Additionally, multiple populations currently spread across a
wide geographic range suggest high redundancy and representation.
However, at this time, the populations in the Central and South Coast
Ecoregions have lower abundance than the North Coast Ecoregion
populations. Even in years with higher than normal abundance numbers,
the Central and South Coast Ecoregion populations fall below the
recovery goal of 5,000 individuals per population (Service 1998, p.
93). Given the lower abundance compared to the rest of the species'
range and the continued threats into the foreseeable future, the
species' overall ability to maintain adequate
[[Page 18733]]
representation and redundancy into the future is low.
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 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.
In 1998, we finalized the Seven Coastal Plants and the Myrtle's
Silverspot Butterfly Recovery Plan, which included recovery objectives
for beach layia (recovery plan; Service 1998, pp. 43-48). All of the
downlisting criteria and a portion of the delisting criteria included
in the recovery plan (Service 1998) applied to the entire suite of dune
plant species covered by the plan. As such, some interpretation of
those criteria may be warranted to account for the specific life
history or other circumstances of the species in question. Therefore,
we have based our analysis on the intent of the criteria as they relate
to beach layia. Based on our review of the recovery plan and the
information obtained from the various management activities, surveys,
and research that have occurred to date (including some new abundance
information available since publication of the proposed rule in the
Federal Register (85 FR 61684; September 30, 2020)), we conclude that
the status of beach layia is improved throughout its range as a result
of significant protections to preserve or conserve habitat, along with
land use decisions and management activities implemented by many
landowners undertaken since the time of listing. See appendix A in the
SSA report for a detailed account of existing regulatory mechanisms and
voluntary conservation efforts (Service 2018, pp. 75-80). Our analysis
indicates that the intent of the downlisting criteria has been met. Our
summary analysis of the downlisting criteria follows:
Downlisting Criterion 1 (addresses Listing Factors A, D, and E):
Habitat occupied by the species that is needed to allow delisting has
been secured, with long-term commitments and, if possible, endowments
to fund conservation of the native vegetation.
There has been significant improvement in the security of habitat
occupied by beach layia since the recovery plan was prepared, including
land acquisition by Federal agencies, State and local agencies, and
nongovernmental organizations; adoption of local coastal plans under
the California Coastal Act; and implementation of management plans that
address the needs of the species. Of the estimated 595 ac (240 ha) of
dunes habitat currently occupied by beach layia, approximately 91
percent is owned by Federal and State governmental entities or other
land owners with existing resource management direction precluding
development within sensitive dunes habitat. Despite the fact that not
all entities managing beach layia habitat have been able to demonstrate
their ability to continue management into the future, especially if the
species were to be delisted, due to the significant amount of occupied
dune habitat that is now on protected lands (i.e., long-term
commitments of approximately 32 years, including resource management
plans that contain a restoration component), and State and Federal
mandates to conserve the species as long as it remains listed, we
conclude that this recovery criterion has been adequately met.
Downlisting Criterion 2 (in part, addresses Listing Factors A, D
and E): Management measures are being implemented to address the
threats of invasive species, pedestrians, and OHVs at some sites.
The Service, BLM, National Park Service (Redwood National Park,
Point Reyes), and several other land managers in the northern portion
of the range, and the CDPR, Department of Defense, and several other
managers in the southern portion of the range have all instituted
relevant management policies since the recovery plan was completed or
since the species was listed. Those policies have reduced, and in many
cases eliminated, the threats to beach layia posed by pedestrians and
OHV activity, as well as reduced to a certain degree the threat of
native and nonnative, invasive species. Because of the many management
measures currently implemented across the range of beach layia to
address the threats of pedestrians and OHVs, and the work conducted
thus far to address the ongoing threat of invasive species, we conclude
that this criterion has been adequately met.
Downlisting Criterion 3 (in part, addresses Listing Factor E):
Monitoring reveals that management actions are successful in reducing
threats of invasive, nonnative species.
Management actions over the past 12 years have reduced the threats
from native and nonnative, invasive species, at least into the
foreseeable future. Because of these successful invasive species
management measures, we conclude that this criterion has been
adequately met.
Downlisting Criterion 4 (in part, addresses Listing Factors A, D
and E): Additional restored habitat has been secured, with evidence of
either natural or artificial long-term establishment of additional
populations, and long-term commitments (and endowments where possible)
to fund conservation of the native vegetation.
Commitments by land managers across beach layia's range, as
described under Downlisting Criterion 1, above,
[[Page 18734]]
have resulted in secured habitat (i.e., protected from development,
although native or nonnative, invasive species continue to reduce the
availability of sandy soils with sparse vegetative cover) in multiple
geographic areas since the recovery plan was completed. These include
several protected areas on Federal, State, and local public lands, as
well as land acquisition and protection (e.g., conservation easements)
by nongovernmental organizations (protections are described in each
population description found in section 7.0 of the SSA report (Service
2018, pp. 25-38)). Additionally, restoration has been conducted with a
commensurate response by beach layia (e.g., the creation of an
Endangered Species Protection Area within the Samoa/Eureka
subpopulation, North Spit Humboldt Bay, Point Reyes National Seashore,
Vandenberg SFB). As a result, we conclude that this criterion has been
adequately met.
Delisting Criteria
The intent of the delisting criteria has not yet been met for beach
layia. The overarching goal for delisting beach layia includes removal
of substantially all of the nonnative, invasive plants on the dunes
where it occurs and securing written assurance of long-term support for
continued management of the dunes, and monitoring (Service 1998, pp.
92-93). The overarching goal is to restore natural processes that have
been disrupted by the presence of nonnative, invasive species to dune
systems so that beach layia and other native plants adapted to those
environments can persist into the future.
Determination of Beach Layia 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. The Act requires
that we determine whether a species meets the definition of
``endangered species'' or ``threatened species'' because of any of the
following factors: (A) The present or threatened destruction,
modification, or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence.
Status Throughout All of Its Range
As required by the Act, we considered the five factors in assessing
whether the beach layia is an endangered or threatened species
throughout all of its range. We examined the best scientific and
commercial information available regarding the past, present, and
future threats faced by the species. We reviewed information presented
in the 2011 5-year review (Service 2011, entire), additional
information that became available since the time our 2011 5-year review
was completed, and other available published and unpublished
information, including information available since publication of the
proposed rule (85 FR 61684; September 30, 2020). We also consulted with
species experts and land management staff who are actively managing for
the conservation of beach layia.
We examined the following threats that may be affecting beach
layia: Development (Factor A), herbivory/disease (Factor C),
overstabilization/competition with invasive species (Factor A),
changing climate conditions (Factor E), erosion/high level of
disturbance (e.g., recreation) (Factor A), and vertical land movement/
shoreline erosion (Factor A). We found no threats associated with
overutilization for commercial, recreational, scientific, or
educational purposes, such as (but not limited to) collection of plants
for scientific research (Factor B). We also considered and discussed
existing regulatory mechanisms (Factor D) and voluntary conservation
efforts as they relate to the threats that may affect beach layia
(summarized within each threat discussion within chapters 8 and 10, and
detailed in appendix A, of the SSA report, pp. 75-80).
The most significant factors influencing the viability of beach
layia populations at the time of listing were displacement by
nonnative, invasive vegetation; recreational uses such as OHV
activities and pedestrians; and urban development (57 FR 27848, June
22, 1992; Service 1998, p. 45). At the time of the proposed downlisting
rule (85 FR 61684; September 30, 2020) and currently, our analysis
indicates that the level of impacts to beach layia and its habitat that
placed the species in danger of extinction in 1992 (i.e., human-induced
disturbances including OHV activity, agriculture, pedestrians,
development, etc.) has substantially been reduced as a result of the
significant commitments made by landowners to conserve lands and
institute restoration activities at multiple populations throughout the
species' range. However, the extensive spread of nonnative, invasive
vegetation throughout the species' range remains a significant negative
influence on the viability of the species. Additionally, the ability of
the majority of landowners to continue management of habitat for the
species into the future is uncertain, particularly if the species were
to be delisted.
At the time of the 5-year review (2011) and currently, we have
become aware of the potential for anthropogenic climate change to
affect all biota, including beach layia. Available information
indicates that temperatures are increasing and annual rainfall is
reduced during some years within beach layia's range, resulting in
prolonged drought conditions that negatively influence beach layia
abundance. Beach layia's response to these changes should be monitored
into the future.
Of the factors identified above, overstabilization/competition with
invasive species (Factor A), changing climate conditions (Factor E),
erosion/high level of disturbance (e.g., recreation) (Factor A), and
vertical land movement/shoreline erosion (Factor A) are the most
significant threats to the species currently and into the foreseeable
future. After review and analysis of the best scientific and commercial
information available regarding the threats as they relate to the five
statutory factors, we find that this information does not indicate that
these threats are affecting individual populations or the species as a
whole across its range to the extent that they currently are of
sufficient imminence, scope, or magnitude to rise to the level that
beach layia is in danger of extinction throughout all of its range.
This determination is based on the current estimate of approximately 30
million plants across the range of the species and the approximately
two thirds of currently occupied habitat that is restored or partially
restored, and because the species is widely distributed along the coast
of California.
However, our review of the best available scientific information
indicates that, while the overall range has slightly increased since
the time of listing (i.e., discovery of the northern-most population--
Freshwater Lagoon Spit) and the abundance of the species has increased
significantly since the 2011 5-year review, the anticipated trajectory
of the identified threats into the foreseeable future is likely to
result in a condition whereby the abundance
[[Page 18735]]
and density of the species across the majority of its range (including
the population stronghold areas in a portion of Humboldt County) are
likely to be negatively impacted.
Specifically, the best available information indicates there is a
likelihood of population- and rangewide-level impacts to beach layia
abundance in the foreseeable future, despite beneficial management
actions at some of the populations at this time. Beach layia
populations across the species' range are likely to be negatively
influenced predominantly from overstabilization/competition with
invasive species, in conjunction with predicted drought conditions. Our
analysis reveals that one or more threats continue to act on the
species at the population level, likely contributing to low abundance
in most years that do not experience substantial rainfall.
Additionally, there is a lack of range expansion at some small
populations (e.g., Asilomar State Beach, Indian Village Dunes, and
Signal Hill Dunes populations), likely contributing to insufficient
recruitment necessary for stable or, ideally, increasing populations.
With respect to the remaining populations that are experiencing OHV and
other recreation activities (noting this threat is substantially
reduced with the exception of a few areas in the North Coast
Ecoregion), the existing regulatory mechanisms are likely insufficient
to manage the beach layia habitat specifically at the Signal Hill Dunes
population. Overall, some disturbance appears compatible with large
populations (Wheeler 2017, pers. comm.)
Thus, after assessing the best available information, we conclude
that beach layia is not currently in danger of extinction, but it is
likely to become in danger of extinction within the foreseeable future
throughout all of its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. The court in Center for Biological Diversity v. Everson,
2020 WL 437289 (D.D.C. Jan. 28, 2020) (Center for Biological
Diversity), vacated the aspect of the Final Policy on Interpretation of
the Phrase ``Significant Portion of Its Range'' in the Endangered
Species Act's Definitions of ``Endangered Species'' and ``Threatened
Species'' (79 FR 37578; July 1, 2014) that provided that the Service
does not undertake an analysis of significant portions of a species'
range if the species warrants listing as threatened throughout all of
its range. Therefore, we proceed to evaluating whether the species is
endangered in a significant portion of its range--that is, whether
there is any portion of the species' range for which both (1) the
portion is significant; and (2) the species is in danger of extinction
in that portion. Depending on the case, it might be more efficient for
us to address the ``significance'' question or the ``status'' question
first. We can choose to address either question first. Regardless of
which question we address first, if we reach a negative answer with
respect to the first question that we address, we do not need to
evaluate the other question for that portion of the species' range.
Following the court's holding in Center for Biological Diversity,
we now consider whether there are any significant portions of the
species' range where the species is in danger of extinction now (i.e.,
endangered). In undertaking this analysis for the beach layia, 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.
The statutory difference between an endangered species and a
threatened species is the time horizon in which the species becomes in
danger of extinction; an endangered species is in danger of extinction
now, while a threatened species is not in danger of extinction now but
is likely to become so in the foreseeable future. Thus, we considered
the time horizon for the threats that are driving the beach layia to
warrant its classification as a threatened species throughout all of
its range. We examined the following threats: Overstabilization/
competition with invasive species, changing climate conditions,
erosion/high level of disturbance (e.g., recreation), and vertical land
movement/shoreline erosion, including cumulative effects. While some of
these threats currently exist throughout the range of the species
(e.g., the presence of invasive species, recreational impacts), it is
the anticipated future increase in overstabilization/competition with
invasive species, exacerbated by climate change-influenced drought that
is driving the threatened status of the species.
The best scientific and commercial data available indicate that the
time horizon on which this heightened threat to beach layia from
drought-influenced overstabilization/competition with invasive species,
and beach layia's negative response to that heightened threat, is
likely to occur is the foreseeable future. In addition, the best
scientific and commercial data available do not indicate that this
heightened threat is more immediate in any portions of the species'
range. Therefore, we determine that the beach layia is not in danger of
extinction now in any portion of its range, but that the species is
likely to become in danger of extinction within the foreseeable future
throughout all of its range. This is consistent with the courts'
holdings in Desert Survivors v. Department of the Interior, No. 16-cv-
01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), and Center for
Biological Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz.
2017).
Therefore, on the basis of the best available scientific and
commercial information, we are reclassifying beach layia as a
threatened species throughout all of its range in accordance with
sections 3(20) and 4(a)(1) of the Act.
Determination of Status
Our review of the best available scientific and commercial
information indicates that beach layia does not meet the definition of
an endangered species in accordance with sections 3(6) and 4(a)(1) of
the Act, but does meet the definition of a threatened species in
accordance with sections 3(20) and 4(a)(1) of the Act. Therefore, we
are downlisting beach layia from an endangered species to a threatened
species, and this change will be reflected on the List of Endangered
and Threatened Plants.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is classified, those activities that would or would
not constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a listing on
proposed and ongoing activities within the range of the species being
listed. Because we are listing this species as a threatened species,
the prohibitions in section 9 will not apply directly. We are,
therefore, adopting a set of regulations to provide for the
conservation of the species in accordance with the Act's section 4(d),
which also authorizes us to apply any of the prohibitions in the Act's
section 9 to a threatened species. The 4(d) rule, which includes a
description of the kinds of activities that will or will not constitute
a violation, complies with our July 1, 1994, policy.
[[Page 18736]]
II. Final Rule Issued Under Section 4(d) of the Act
Background
Section 4(d) of the Act contains two sentences. The first sentence
states that the Secretary shall issue such regulations as she deems
necessary and advisable to provide for the conservation of species
listed as threatened. The U.S. Supreme Court has noted that statutory
language like ``necessary and advisable'' demonstrates a large degree
of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)).
Conservation is defined in the Act to mean the use of all methods and
procedures which are necessary to bring any endangered species or
threatened species to the point at which the measures provided pursuant
to the Act are no longer necessary. Additionally, the second sentence
of section 4(d) of the Act states that the Secretary may by regulation
prohibit with respect to any threatened species any act prohibited
under section 9(a)(1), in the case of fish or wildlife, or section
9(a)(2), in the case of plants. Thus, the combination of the two
sentences of section 4(d) provides the Secretary with wide latitude of
discretion to select and promulgate appropriate regulations tailored to
the specific conservation needs of the threatened species. The second
sentence grants particularly broad discretion to us when adopting the
prohibitions under section 9.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, courts have upheld rules
developed under section 4(d) as a valid exercise of agency authority
where they prohibited take of threatened wildlife, or include a limited
taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007
U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council
v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D.
Wash. 2002)). Courts have also upheld 4(d) rules that do not address
all of the threats a species faces (see State of Louisiana v. Verity,
853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when
the Act was initially enacted, ``once an animal is on the threatened
list, the Secretary has an almost infinite number of options available
to [her] with regard to the permitted activities for those species.
[She] may, for example, permit taking, but not importation of such
species, or [she] may choose to forbid both taking and importation but
allow the transportation of such species'' (H.R. Rep. No. 412, 93rd
Cong., 1st Sess. 1973).
Exercising this authority under section 4(d), we have developed a
species-specific 4(d) rule that is designed to address beach layia's
specific threats and conservation needs. Although the statute does not
require us to make a ``necessary and advisable'' finding with respect
to the adoption of specific prohibitions under section 9, we find that
this rule as a whole satisfies the requirement in section 4(d) of the
Act to issue regulations deemed necessary and advisable to provide for
the conservation of beach layia. As discussed above under Determination
of Beach Layia Status, we conclude that beach layia is no longer at
risk of extinction but is still likely to become so in the foreseeable
future, primarily due to the identified threats of overstabilization/
competition with invasive species and drought conditions, in addition
to loss of habitat and plants at some locations from recreational
disturbance and erosion (e.g., shoreline erosion, vertical land
movement). The provisions of this 4(d) rule promote conservation of
beach layia by making it unlawful to remove and reduce to possession
beach layia from Federal land. The provisions of this rule are one of
many tools that we will use to promote the conservation of the beach
layia.
Provisions of the 4(d) Rule
This 4(d) rule enhances the conservation of beach layia by
prohibiting detrimental activities and allowing activities that benefit
the species.
This 4(d) rule provides for the conservation of beach layia by
prohibiting, for any person subject to the jurisdiction of the United
States, the following activities, except as otherwise authorized or
permitted: Import or export; removing and reducing to possession beach
layia from areas under Federal jurisdiction; maliciously damaging or
destroying the species on any area under Federal jurisdiction; or
removing, cutting, digging up, or damaging or destroying the species on
any area under Federal jurisdiction in knowing violation of any law or
regulation of any State or in the course of any violation of a State
criminal trespass law; delivering, receiving, carrying, transporting,
or shipping the species in interstate or foreign commerce in the course
of a commercial activity; and selling or offering for sale the species
in interstate or foreign commerce.
As discussed above under Determination of Beach Layia Status,
several factors are affecting the status of beach layia. A range of
activities have the potential to impact the beach layia, including the
loss of habitat and plants at some locations from recreational
disturbance. Regulating these activities will help preserve the
species' remaining populations, slow their rate of decline, and
decrease synergistic, negative effects from other stressors.
We may issue permits to carry out otherwise prohibited activities,
including those described above, involving threatened plants under
certain circumstances. Regulations governing permits for threatened
plants are codified at 50 CFR 17.72, which states that the Service
Director may issue a permit authorizing any activity otherwise
prohibited with regard to threatened species. The regulations also
state that the permit will be governed by the provisions of 50 CFR
17.72 unless a species-specific 4(d) rule applicable to the plant is
provided at 50 CFR 17.73 to 17.78. We interpret that second sentence to
mean that permits for threatened species are governed by the provisions
of 50 CFR 17.72 unless a species-specific 4(d) rule provides otherwise.
On August 27, 2019, we published a final rule (84 FR 44753) revising 50
CFR 17.71 to remove the prior default extension of most of the
prohibitions for activities involving endangered plants to threatened
plants. We did not intend for those revisions to limit or alter the
applicability of the permitting provisions in 50 CFR 17.72, or require
that every 4(d) rule spell out any permitting provisions that apply to
that species. To the contrary, we anticipate that permitting provisions
will generally be similar or identical for most species, so applying
the provisions of 50 CFR 17.72 unless a 4(d) rule provides otherwise
would likely avoid substantial duplication. Moreover, this
interpretation brings 50 CFR 17.72 in line with the comparable
provision for wildlife at 50 CFR 17.32, which states that a permit will
be governed by the provisions of 50 CFR 17.32 unless a species-specific
4(d) rule applicable to the wildlife, appearing at 50 CFR 17.40 to
17.48, provides otherwise. Under 50 CFR 17.72 with regard to threatened
plants, a permit may be issued for the following purposes: For
scientific purposes, to enhance propagation or survival, for economic
hardship, for botanical or horticultural exhibition, for educational
purposes, or other activities consistent with the purposes and policy
of the Act. Additional statutory exemptions from the prohibitions are
found in sections 9 and 10 of the Act.
The Service recognizes the special and unique relationship with our
State
[[Page 18737]]
natural resource agency partners in contributing to conservation of
listed species. State agencies often possess scientific data and
valuable expertise on the status and distribution of endangered,
threatened, and candidate species of wildlife and plants. State
agencies, because of their authorities and their close working
relationships with local governments and landowners, are in a unique
position to assist the Services in implementing all aspects of the Act.
In this regard, section 6 of the Act provides that the Services shall
cooperate to the maximum extent practicable with the States in carrying
out programs authorized by the Act. Therefore, any qualified employee
or agent of a State conservation agency which is a party to a
cooperative agreement with the Service in accordance with section 6(c)
of the Act, who is designated by his or her agency for such purposes,
will be able to conduct activities designed to conserve beach layia
that may result in otherwise prohibited activities without additional
authorization.
We recognize the beneficial and educational aspects of activities
with seeds of cultivated plants, which generally enhance the
propagation of the species, and therefore satisfy permit requirements
under the Act. We intend to monitor the interstate and foreign commerce
and import and export of these specimens in a manner that will not
inhibit such activities, providing the activities do not represent a
threat to the species' survival in the wild. In this regard, seeds of
cultivated specimens will not be regulated provided that a statement
that the seeds are of ``cultivated origin'' accompanies the seeds or
their container.
Nothing in this 4(d) rule changes in any way the recovery planning
provisions of section 4(f) of the Act, the consultation requirements
under section 7 of the Act, or our ability to enter into partnerships
for the management and protection of the beach layia. However,
interagency cooperation may be further streamlined through planned
programmatic consultations for the species between us and other Federal
agencies, where appropriate.
III. Summary of Comments and Recommendations
Peer Reviewer Comments
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review of
listing actions under the Act, we sought the expert opinions of seven
appropriate specialists regarding the SSA report. We received responses
from four specialists, which informed the SSA report and this final
rule. The purpose of peer review is to ensure that our listing
determinations are based on scientifically sound data, conclusions, and
analyses. The peer reviewers have expertise in the biology and ecology
of the species, including the threats that the species faces.
We reviewed all comments we received from the peer reviewers for
substantive issues and new information regarding the beach layia. The
peer reviewers generally concurred with our methods and conclusions,
and provided additional information, clarifications, and suggestions to
improve the SSA report and final rule. Peer reviewer comments are
incorporated into the SSA report and this final rule as appropriate; no
significant, substantive issues were identified with our analysis and
SSA report.
Public Comments
We received one public comment in response to the proposed rule. We
reviewed this comment for substantive issues and new information
regarding the proposed rule. A summary of the substantive issues raised
in the comment follows.
(1) Comment: The commenter questioned whether the 1998 recovery
plan is working sufficiently, or if there are plans to write a new
recovery plan.
Our Response: Recovery plans provide a road map with detailed site-
specific management actions for private, Tribal, Federal, and State
cooperation in conserving listed species and their ecosystems. A
recovery plan provides guidance on how best to help listed species,
including beach layia, to achieve recovery, but it is not a regulatory
document. At this time, we do believe the current recovery plan has
been successful for addressing beach layia's needs, as demonstrated by
the various recovery actions that have been implemented to date (see
Recovery and Recovery Plan Implementation, above). We currently have no
plans to revise the existing recovery plan, but we do intend to
continue to evaluate the species' status into the future via periodic
status reviews to assess ongoing conservation efforts and ensure that
species protections are appropriately classified under the Act.
(2) Comment: The commenter questioned if it is the Service's goal
to delist beach layia in the future.
Our Response: As with all listed species, the Service's ultimate
goal is to recover the species to the point that it no longer requires
the protections of the Act and can be delisted. We have worked, and
continue to work, cooperatively with landowners across beach layia's
range to further the conservation of the species, with the overarching
goal that when the species no longer meets the Act's definition of a
threatened species, we can propose to remove beach layia from the List
of Endangered and Threatened Plants. Key to that assessment will be
ensuring that this conservation-reliant species has management
commitments in place to address the threat of nonnative invasive
species into the future.
(3) Comment: The commenter asked what caused the threats to beach
layia to be reduced compared to the level of impacts identified when it
was listed in 1992.
Our Response: The reduction in threats impacting beach layia is due
to the conservation efforts implemented by Federal, State, local, and
private entities. Examples of the conservation efforts are the removal
of both native and nonnative, invasive species from many populations
across the species' range, which have expanded suitable habitat for
beach layia and appear to be the most beneficial conservation action
for the species. Also, protecting lands from development has
contributed to the reduction in threats. Protected lands include a
significant amount of occupied dune habitat that receive long-term
commitments of approximately 32 years, including resource management
plans that contain a restoration component to address some threats, and
State and Federal mandates to conserve the species as long as it
remains listed. Additionally, prohibiting OHV use in some of the areas
supporting beach layia populations has reduced the overall level of
both short-term and long-term impacts from these recreational
activities. For more information, see the discussions under Recovery
and Recovery Plan Implementation and Determination of Beach Layia
Status, above.
(4) Comment: The commenter requested that we develop and display
dynamic, interactive maps in proposed rules to compare pre-listing
status and current species status. For example, the commenter suggested
that it would help the public to see beach layia population ``numbers''
at the time of listing compared to current information.
Our Response: At this time, requirements and limitations for
publication in the Federal Register prevent interactive mapping tools
for proposed and final rules. However, detailed qualitative and
quantitative historical and current information on species abundance
and distribution is
[[Page 18738]]
available in the SSA report (Service 2018, chapters 5 and 6, pp. 13-
38). The SSA report and supporting information are available on the
internet at https://www.regulations.gov under Docket No. FWS-R8-ES-
2018-0042.
(5) Comment: The commenter inquired about the cost to the public of
promulgating and implementing the beach layia proposed downlisting
rule.
Our Response: Section 4(b)(1)(A) of the Act requires us make
listing determinations ``solely on the basis of the best scientific and
commercial data available.'' The Act does not allow us to consider the
economic or other impacts of listing, whether over the short term, long
term, or cumulatively. Therefore, we may not consider information
concerning economic or management (implementation) impacts when making
listing determinations.
IV. Required Determinations
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with regulations
adopted pursuant to section 4(a) of the Act. We published a notice
outlining our reasons for this determination in the Federal Register on
October 25, 1983 (48 FR 49244). 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. We have determined that no Tribes will
be affected by this rule because there are no Tribal lands or interests
within or adjacent to beach layia habitat.
References Cited
A complete list of all references cited in the SSA report and this
rulemaking is available on the internet at https://www.regulations.gov
under Docket No. FWS-R8-ES-2018-0042 and upon request from the Field
Supervisor, Arcata Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this final rule are the staff members of the
U.S. Fish and Wildlife Service Species Assessment Team and the Arcata
Fish and Wildlife Office.
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.
0
2. In Sec. 17.12, amend the table in paragraph (h) by revising the
entry for ``Layia carnosa'' under FLOWERING PLANTS in the List of
Endangered and Threatened Plants to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations
Scientific name Common name Where listed Status and applicable
rules
----------------------------------------------------------------------------------------------------------------
Flowering Plants
* * * * * * *
Layia carnosa................... Beach layia........ Wherever found..... T 57 FR 27848, 6/22/
1992; 87 FR
[insert Federal
Register page
where the document
begins], 3/31/
2022; 50 CFR
17.73(b).\4d\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.73 by adding paragraph (b) to read as follows:
Sec. 17.73 Special rules--flowering plants.
* * * * *
(b) Layia carnosa (beach layia).
(1) Prohibitions. The following prohibitions that apply to
endangered plants also apply to Layia carnosa (beach layia). Except as
provided under paragraph (b)(2) of this section and Sec. Sec. 17.4 and
17.5, it is unlawful for any person subject to the jurisdiction of the
United States to commit, to attempt to commit, to solicit another to
commit, or cause to be committed, any of the following acts in regard
to this species:
(i) Import or export, as set forth at Sec. 17.61(b) for endangered
plants.
(ii) Remove and reduce to possession from areas under Federal
jurisdiction, as set forth at Sec. 17.61(c)(1) for endangered plants.
(iii) Maliciously damage or destroy the species on any areas under
Federal jurisdiction, or remove, cut, dig up, or damage or destroy the
species on any other area in knowing violation of any State law or
regulation or in the course of any violation of a State criminal
trespass law, as set forth at section 9(a)(2)(B) of the Act.
(iv) Interstate or foreign commerce in the course of commercial
activity, as set forth at Sec. 17.61(d) for endangered plants.
(v) Sell or offer for sale, as set forth at Sec. 17.61(e) for
endangered plants.
(2) Exceptions from prohibitions. The following exceptions from
prohibitions apply to beach layia:
(i) The prohibitions described in paragraph (b)(1) of this section
do not
[[Page 18739]]
apply to activities conducted as authorized by a permit issued in
accordance with the provisions set forth at Sec. 17.72.
(ii) Any employee or agent of the Service or of a State
conservation agency that is operating a conservation program pursuant
to the terms of a cooperative agreement with the Service in accordance
with section 6(c) of the Act, who is designated by that agency for such
purposes, may, when acting in the course of official duties, remove and
reduce to possession from areas under Federal jurisdiction members of
beach layia that are covered by an approved cooperative agreement to
carry out conservation programs.
(iii) You may engage in any act prohibited under paragraph (b)(1)
of this section with seeds of cultivated specimens, provided that a
statement that the seeds are of ``cultivated origin'' accompanies the
seeds or their container.
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-06740 Filed 3-30-22; 8:45 am]
BILLING CODE 4333-15-P