[Federal Register Volume 88, Number 199 (Tuesday, October 17, 2023)]
[Rules and Regulations]
[Pages 71491-71504]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-22759]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R1-ES-2021-0154; FF09E22000FXES1113090FEDR 234]
RIN 1018-BE54
Endangered and Threatened Wildlife and Plants; Removing Nelson's
Checker-Mallow From the Federal List of Endangered and Threatened
Plants
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are removing
Nelson's checker-mallow (Sidalcea nelsoniana) from the Federal List of
Endangered and Threatened Plants. Our review of the best available
scientific and commercial data indicates that the threats to Nelson's
checker-mallow have been eliminated or reduced to the point that the
species no longer meets the definition of an endangered or threatened
species under the Endangered Species Act of 1973, as amended (Act).
DATES: This rule is effective November 16, 2023.
ADDRESSES: This final rule and supporting documents, including
references cited, the 5-year review, the recovery plan, the species
status assessment (SSA) report, and the post-delisting monitoring (PDM)
plan, are available at https://www.regulations.gov under Docket No.
FWS-R1-ES-2021-0154.
FOR FURTHER INFORMATION CONTACT: Kessina Lee, Project Leader, U.S. Fish
and Wildlife Service, Oregon Fish and Wildlife Office, 2600 SE 98th
Ave., Suite 100, Portland, OR 97266; telephone: 503-231-6179.
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 February 12, 1993, we published in the Federal Register (58 FR
8235) a final rule listing Nelson's checker-mallow as a threatened
species. In 2010, we finalized the Recovery Plan for the Prairie
Species of Western Oregon and Southwestern Washington, which includes
Nelson's checker-mallow (Service 2010, entire). We conducted a 5-year
status review in 2012, and did not recommend reclassification (Service
2012, entire). On May 7, 2018, we announced in the Federal Register (83
FR 20088) our initiation of a subsequent 5-year review for the species.
We completed the status review in 2021, and therein recommended
delisting the species. On April 28, 2022, we published in the Federal
Register (87 FR 25197) a proposed rule to remove Nelson's checker-
mallow from the Federal List of Endangered and Threatened Plants
(List).
Peer Review
An SSA team prepared the SSA report for Nelson's checker-mallow
(Service 2021, entire). The SSA team was composed of Service
biologists, and the team consulted with other species experts. The SSA
report represents a compilation of the best scientific and commercial
data available concerning the status of the species, including the
impacts of past, present, and future factors (both negative and
beneficial) affecting the species.
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 in
listing actions under the Act, we solicited independent scientific
reviews of the information contained in the Nelson's checker-mallow SSA
report. As discussed in the proposed rule, we sent the SSA report to
four independent peer reviewers and received no responses. The SSA
report was also submitted to our Federal, State, municipal, Tribal, and
conservation partners for scientific review. We received responses from
two partners, representing a Federal agency and a nonprofit
conservation partner. In preparing the proposed rule, we incorporated
the results of these reviews, as appropriate, into the SSA report,
which was the foundation for the proposed rule and this final rule.
Summary of Changes From the Proposed Rule and Draft Post-Delisting
Monitoring Plan
We considered all comments and information we received during the
comment period on our proposed rule to delist Nelson's checker-mallow
(87 FR 25197; April 28, 2022). This consideration resulted in the
following changes from the proposed rule and draft PDM plan to this
final rule and the updated PDM plan.
In this final rule, we include updated monitoring data and the
results of a partial range-wide survey conducted in 2022, the species'
potential response to climate change, and status of reintroduction
efforts. We also make nonsubstantive, editorial corrections in our
preamble to improve clarity.
We revised the PDM plan by updating the monitoring timetable and
schedule to include periodic surveys over a 10-year timeframe, updating
tables and text to reflect results of recent monitoring efforts, and
making one substitution and one addition to the monitoring site table
to better represent the current distribution of the species.
Summary of Comments and Recommendations
In the proposed rule published on April 28, 2022 (87 FR 25197), we
requested that all interested parties submit written comments on the
proposal by June 27, 2022. We also contacted appropriate Federal and
State agencies, scientific experts and organizations, and other
interested parties and invited them to comment on the proposal. We did
not receive any requests for a public hearing. We received comments
from two individuals addressing the proposed rule, representing one
public commenter and one State agency. These comments are posted at
https://www.regulations.gov under Docket No. FWS-R1-ES-2021-0154. The
public comment opposed the proposed delisting of the Nelson's checker-
mallow but did not provide substantive information that could be
evaluated or incorporated, and we do not address it further here. The
State agency comment also opposed the proposed delisting and provided
substantive information that is addressed below.
Comment (1): The Oregon Department of Agriculture (ODA) commented
that there is an overall lack of sufficient data in the SSA report to
back up claims of population growth trends, reproduction, and
recruitment to support delisting Nelson's checker-mallow. ODA
recommended that the Service consider a more robust, comprehensive,
methodical, and organized approach to annual monitoring of these
vulnerable prairie species, and stated that, based on the SSA report,
it is unclear whether populations of this species are self-sustaining
or are exhibiting explosive population growth due to intensive out-
planting.
Response (1): In accordance with section 4(b)(1)(A) of the Act (16
U.S.C. 1531 et seq.), this delisting determination for Nelson's
checker-mallow is based on the best scientific
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and commercial data available. The Service considered population
growth, reproduction, and recruitment of Nelson's checker-mallow in the
SSA report when assessing the species' resiliency. We recognize that
sites are not monitored regularly throughout the entire range, and that
there is interannual variation in abundance at sites. However,
monitoring data from the time of listing through 2022 show an overall
trend of population growth with increasing abundance and an increasing
number of known sites. At the time of listing, there were 49 known
sites, of which 19 had 100 to 999 plants, and 5 had 1,000 plants or
more (Service 2012, pp. 17-19). Of the 66 sites known at the time of
the SSA report, 28 had 100 to 999 plants, and 24 sites had 1,000 plants
or more (Service 2021, pp. 17-18). Restoration activities include
establishment of 51 new sites (i.e., out-plantings) and augmentation of
15 existing sites. At this time, population increases are driven by
restoration activities and not natural recruitment; however, seedlings
have been observed on most (35 of 65) surveyed sites (Silvernail et al.
2016, pp. 21-24).
In 2022, the Service funded a partial range-wide survey (less than
50 percent of known sites) of Nelson's checker-mallow (Service 2022,
entire). Within sites, the survey focused on obtaining an inventory of
larger patches of Nelson's checker-mallow plants, so most smaller and
isolated patches were not included. A total of 62 patches, including
more than 86 percent of the plants known to exist, were surveyed.
Overall, the population remains high with over 369,000 plants counted,
reflecting an overall increase of approximately 30,000 plants since
completion of the SSA report in 2021. Restored sites continue to
contribute more than 90 percent of individuals (Service 2022, p. 5).
Comment (2): ODA commented that while there have been successful
artificial reintroductions, because of the dearth of population trend,
reproduction, and demographic data, there is no sense of how
reintroductions have performed since 2017, when the last range-wide
species survey was undertaken. ODA recommended that the Service
demonstrate long-term viability of these reintroduction efforts through
focused, long-term monitoring before delisting the species.
Response (2): While there have not been more recent range-wide
species surveys since 2017, monitoring of 62 patches in 2022 (including
more than 86 percent of known Nelson's checker-mallow plants)
demonstrated the population remains high and restored sites continue to
contribute more than 90 percent of individuals (Service 2022, p. 5).
In addition, the Service notes in the SSA report that long-term
monitoring data are not currently available for the majority of
Nelson's checker-mallow sites and were not a component of our
resiliency assessment (Service 2021, p. 26). We are required to make
our determinations based on the best available scientific and
commercial data at the time the determination is made. Current data
indicate that since the Nelson's checker-mallow was listed as
threatened in 1993, the species has increased in both number and size
of populations, with a majority of populations under management plans
or public ownership, such that the species is no longer in danger of
extinction within the foreseeable future throughout all or a
significant portion of its range. Considering the best scientific and
commercial information available, Nelson's checker-mallow also does not
meet the Act's definition of a threatened species. Finally, the PDM
plan outlines a 10-year monitoring plan with specific criteria for site
selection, data collection and analysis methods, and reporting
requirements to track the species' status. The PDM plan also contains
thresholds for population numbers and distribution, and triggers for
management protections to ensure that Nelson's checker-mallow remains
secure from the risk of extinction following delisting.
Comment (3): ODA recommended that the Service increase its
reintroduction efforts in the northern recovery zones given the
statement in the SSA report that Coast Range, Portland, and Southwest
(SW) Washington are known to have the minimum number of populations but
do not meet the recovery goals for abundance.
Response (3): At the time the SSA report was written, recovery
goals for abundance in the Coast Range (15,000 plants), Portland (5,000
plants), and SW Washington (10,000 plants) recovery zones had not been
met. Since that time, more than 11 new introduction sites have been
established across the species' range. While the Coast Range and SW
Washington recovery zones remain below their abundance goals, the
Portland recovery zone now exceeds its abundance goal. Recent surveys
also show increasing trends in plant abundance across the species'
range with the total number of plants increasing from 334,968 at the
time of the SSA report (Service 2021, p. 15) to 426,032 in 2022
(Service 2022, pp. 2-3). Support for the ongoing conservation of
Nelson's checker-mallow has been high among government agencies,
nongovernmental conservation organizations, and some private
landowners. It is anticipated that priority recovery and management
actions, including additional reintroduction efforts, will continue at
approximately the current pace and that the species will continue to
benefit from this ongoing conservation support.
Comment (4): ODA expressed a concern about the species' ability to
adapt to climate change given the recent drought and extreme heat
coupled with the most successful recovery zones occurring at the
southern end of the species' range. They emphasized the need for a
better understanding of the magnitude and urgency of the threats and
that data beyond 2020/2021 would be helpful in understanding the
species' response to future climate conditions.
Response (4): The Service reviews the best scientific and
commercial information available when conducting a threats analysis.
The identification of factors that could impact a species negatively is
not sufficient to compel a finding that listing (or maintaining a
currently listed species) on the Federal Lists of Endangered or
Threatened Wildlife and Plants is appropriate. In determining whether a
species meets the definition of a threatened or endangered species, we
must evaluate all identified threats by considering the species'
expected response and the effects of the threats--in light of those
actions and conditions that will ameliorate the threats--on an
individual, population, and species level, as well as the cumulative
effect of the threats.
In our assessment of future viability of the species in the SSA
report, we considered a worst case scenario that assumed that the
anticipated effects of climate change would result in the reduction of
Nelson's checker-mallow populations by 50 percent within a period of 25
to 50 years (Service 2021, pp. 29-30). However, even under this
scenario, our analysis suggests that loss of resiliency will be modest,
with 60 sites remaining in moderate or high condition, no change in the
number of recovery zones that meet recovery goals, and no major changes
in redundancy or representation expected. Collectively, this suggests
that in 25 to 50 years, viability of the species will not be
significantly reduced (Service 2021, p. 31). In addition, Nelson's
checker-mallow has a deep taproot that allows it to access groundwater
and soil water that may help it survive extended periods of drought. At
present, quantitative estimates of the impacts of increased
temperatures and precipitation changes on Nelson's
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checker-mallow are not available outside of our analysis.
Current data are insufficient to analyze how populations are
affected by year-to-year variation in weather. All species have the
potential to be negatively impacted by climate change. Recovery efforts
have increased this species' resiliency, redundancy, and representation
such that the species is now better able to recover from impacts.
Effects may be further buffered if adaptive management strategies are
implemented at sites under public or conservation organization
ownership. Many of the populations of Nelson's checker-mallow are on
lands that will be managed in perpetuity. While 30 populations are in
the two southernmost zones, there are 12 additional independent
populations dispersed across other recovery zones that were considered
in the analysis of the species' resiliency, redundancy, and
representation. In addition, there are currently more than 900 pounds
of seed in storage with more in production, and reintroduction efforts
are expected to continue as part of prairie restoration at both public
and private sites.
Background
Nelson's checker-mallow is an herbaceous perennial plant in the
mallow family (Malvaceae). It produces 30 to 100 lavender to deep-pink
flowers arranged on an elongated, branched stalk. Plants range from 50
to 150 centimeters (20 to 60 inches) in height. Plants produce short,
thick, twisted rhizomes (creeping underground stems), as well as a
system of fine roots extending from a taproot (a stout main root)
(Service 2010, appendix F, pp. F-3-F-4).
Nelson's checker-mallow is found in the Willamette Valley and the
Coast Range of Oregon and Washington. It occupies a variety of prairie
habitats and soil types but is typically associated with open sites. In
the Willamette Valley, the species occasionally occurs in the
understory of Oregon ash (Fraxinus latifolia) woodlands or among woody
shrubs, but more frequently occupies native prairie remnants, including
those at the margins of sloughs, ditches, streams, roadsides, fence
rows, drainage swales, and fallow fields (Glad et al. 1994, pp. 314-
321). In the Coast Range, Nelson's checker-mallow typically occurs in
open, wet to dry meadows; in intermittent stream channels; and along
margins of coniferous forests (Glad et al. 1987, pp. 259-262).
Once established, Nelson's checker-mallow plants are hardy; if
plants become established at a site, they usually persist (Bartow 2020,
pers. comm.). Their long taproot allows them to access subsurface water
sources, and individual plants are long-lived (Dillon 2021, pers.
comm.). In addition, regeneration from the taproot is possible after
the aboveground and upper taproot portions of the plant have been
removed (Dillon 2021, pers. comm.).
A thorough review of the taxonomy, life history, and ecology of
Nelson's checker-mallow is presented in version 1.0 of the SSA report
(Service 2021, entire).
Recovery Criteria
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 Act's 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 the guidance
provided in a recovery plan.
The Recovery Plan for the Prairie Species of Western Oregon and
Southwestern Washington (recovery plan) divides the geographic area
covered by included species into recovery zones, which provides a
framework for recovering the species' historical ranges. Nelson's
checker-mallow historically occupied seven recovery zones: SW
Washington, Portland, Coast Range, Salem East, Salem West, Corvallis
East, and Corvallis West. The following discussion provides an
assessment of the species' status relative to the five delisting
criteria outlined in the recovery plan.
Delisting Criterion 1: Distribution and Abundance
The recovery plan specifies that the distribution of populations
should reflect the extent of the species' historical geographic
distribution to the extent practicable and identifies goals for a
minimum number of populations and target number of plants per recovery
zone, as follows: 5,000 plants in 1 population in the Portland recovery
zone; 10,000 plants in 2 populations in the SW Washington, Salem East,
and Corvallis East recovery zones; 15,000 plants in 3 populations in
the Coast Range recovery zone; and 20,000 plants in 4 populations in
the Salem West and Corvallis West recovery zones.
The recovery plan further specifies that, with the exception of the
Portland recovery zone, this may be achieved with a combination of at
least 2 populations that number at least 2,000 individuals; scattered
independent populations must number at least 200 individuals to add up
to the target number in each zone. The range-wide delisting goal is
100,000 plants occurring in 20 populations.
At the time of the SSA report, a total of 334,968 individual plants
were distributed across the historical range of the species.
Considering only the sites considered independent populations (having
at least 200 plants), there were 332,935 individual plants, found in 42
populations distributed across 6 of the 7 recovery zones (Service 2021,
pp. 15, 27). Recent surveys show continued increases in plant abundance
across the
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species' range, with the total number of plants increasing to 426,032
in 2022 (Service 2022, pp. 2-3).
At the time of the SSA report, the Corvallis West and Salem West
recovery zones met both the abundance and distribution goals outlined
in the recovery plan. Collectively, these 2 recovery zones contained 71
percent of the populations (30 populations) and 95 percent of the
individual plants (313,662 plants) known to exist. A third zone, Salem
East, contained 9,519 plants, occurring in three populations,
essentially meeting the distribution and abundance goals of 10,000
plants distributed among 2 populations. Three zones (Coast Range,
Portland, and SW Washington) had the minimum number of populations but
did not meet the recovery goals for abundance. The remaining zone,
Corvallis East, did not have any sites that met the definition of an
independent population.
Surveys in 2022 included a new site in the Corvallis East zone, so
all recovery zones are now occupied (Service 2022, p. 3). Introduced
populations in the Salem East and Portland zones have been established,
and those zones now meet overall abundance goals per the recovery plan.
Overall, the population at the sites that were included in our analysis
for the SSA increased from about 333,000 plants (Service 2021, p. 17)
to about 370,000 plants in 2022 (Service 2022, p. 3).
The abundance and distribution goal of 100,000 plants in 20
populations has been exceeded, with numbers of nearly 333,000 plants in
42 populations, per the SSA report (Service 2021, p. 17) and more than
370,000 plants in those 42 populations in 2022 (Service 2022, pp. 2-3).
While the plants and populations are not distributed among recovery
zones precisely as identified in the recovery plan, they are
distributed throughout the historical range of the species. We conclude
that the intent of this criterion, which is to minimize extinction risk
by ensuring a sufficient number and distribution of plants and
populations, has been satisfied.
Delisting Criterion 2: Population Trend and Evidence of Reproduction
The recovery plan notes that the number of individuals in the
population (or area of foliar cover) shall have been stable or
increasing over a period of at least 15 years. Stable does not mean
that the population size is static over time; over a period of 15
years, the number of individuals in the population may exhibit natural
year-to-year variability, but the trend must not be declining.
Populations must show evidence of reproduction by seed set or presence
of seedlings.
While taking into account varying methodologies and irregular
population monitoring throughout the species' range, the overall
abundance of Nelson's checker-mallow has increased markedly since
listing in 1993. Range-wide, both the number of independent populations
(having 200 plants or more) and the total number of plants continue to
increase. In addition, more populations have a larger number of
individuals than at the time of listing, as shown in table 1, below
(Service 2012, pp. 17-19; Service 2021, p. 18), and these data indicate
an overall positive trend since the time of listing and since the 2012
5-year review.
Table 1--Number of Sites With More Than 100 Plants and More Than 1,000
Plants for Example Years
------------------------------------------------------------------------
Sites with Sites with
Year 100-999 >=1,000
plants plants
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1993.......................................... 19 5
2012.......................................... 26 4
2021.......................................... 28 24
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Additionally, seedlings were observed on most sites, as confirmed
on 35 of 65 surveyed sites (Silvernail et al. 2016, pp. 21-24), and
overall abundance is increasing throughout the recovery zones. Given
that the number of individual plants has increased, and large
populations have been successfully established, we conclude that this
criterion has been met.
Delisting Criterion 3: Habitat Quality and Management
The recovery plan specifies that sites supporting populations of
Nelson's checker-mallow must meet the following three criteria related
to habitat quality and management:
1. Prairie quality. Sites supporting populations of Nelson's
checker-mallow must be managed for high-quality prairie habitat, which
consists of a diversity of native, non-woody plant species; low
frequency of aggressive, nonnative plant species and encroaching woody
species; and essential habitat elements for native pollinators.
2. Security of habitat. A substantial portion of the habitat for
the populations should either be owned or managed by a government
agency or private conservation organization that identifies maintenance
of the species and the prairie ecosystem upon which it depends as the
primary management objective for the site, or the site must be
protected by a permanent or long-term conservation easement or covenant
that commits present and future landowners to the conservation of the
species.
3. Management, monitoring, and control of threats. Each population
must be managed appropriately to ensure the maintenance or restoration
of quality prairie habitat and to control threats to the species. Use
of herbicides, mowing, burning, or livestock grazing in management
should be implemented with appropriate methods and timing to avoid
impacts to listed plant species. Management should be coordinated with
adjacent landowners to minimize effects of pesticide drift, changes in
hydrology, timber harvest, or road/utility maintenance. Species that
may hybridize with Nelson's checker-mallow should be managed as
appropriate to avoid contact with these taxa. Other potential threats
relating to scientific research, overcollection, vandalism,
recreational impacts, or natural herbivory/parasitism should be
successfully managed so as not to significantly impair recovery of the
species. Management and monitoring plans must be approved by the
Service and should include standardized monitoring and performance
criteria that will be used to assess the plans' effectiveness following
implementation and to allow for adaptive management, as necessary.
Management plans should include a focus on protecting habitat
heterogeneity within protected sites and across a range of elevations
and aspects to buffer the potential effects of climate change.
Of the 42 independent populations of Nelson's checker-mallow
(having 200 plants or more), 38 have formal management plans that
address habitat quality and threats. Of these 38 populations, 26 are in
public ownership and thus are considered protected in perpetuity from
development; one site is owned and protected by a nongovernmental
conservation organization; and the remaining 11 privately owned sites
are protected by conservation easements. Four of the 42 populations,
which account for less than 1 percent of the total number of Nelson's
checker-mallow plants, and 10 percent of the populations, have no
protection and lack management plans. Given that a majority of
populations are managed in accordance with a formal management plan and
are protected by virtue of ownership or conservation easement, we
conclude that this recovery criterion has been met.
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Delisting Criterion 4: Genetic Material Is Stored in a Facility
Approved by the Center for Plant Conservation
The recovery plan specifies that stored genetic material in the
form of seeds must represent the species' geographic distribution and
genetic diversity through collections across the full range of the
species. Collections from large populations are particularly important
as reservoirs of genetic variability within the species.
Nelson's checker-mallow seeds are currently stored at four separate
repositories. The majority of stored seeds, approximately 408 kilograms
(900 pounds) or about 112,500,000 seeds, are located at the Corvallis
Plant Materials Center (PMC) operated by the Natural Resources
Conservation Service (NRCS) of the U.S. Department of Agriculture
(USDA) in Corvallis, Oregon. Seeds in this collection were sourced
primarily from production fields, which are maintained specifically to
produce seed, and are used for habitat restoration, population
augmentation, and out-planting throughout the range of the species. In
addition, approximately 29,000 seeds are stored at the Rae Selling
Berry Seed Bank at Portland State University in Portland, Oregon. This
collection was sourced from Lane, Linn, Benton, Marion, Polk, Yamhill,
and Tillamook Counties in Oregon, and Lewis County in Washington. A
third, smaller collection of approximately 705 Nelson's checker-mallow
seeds from locations in Washington is held at the Miller Seed Vault at
the University of Washington's Botanical Gardens in Seattle,
Washington.
In addition to storage in these three regional repositories, a
subset of seeds from the Rae Selling Berry Seed Bank and the Miller
Seed Vault has been sent to the National Laboratory for Genetic
Resource Preservation at Colorado State University in Fort Collins,
Colorado. Both the Rae Selling Berry Seed Bank and Colorado State
University facility are certified by the Center for Plant Conservation.
Collectively, the stored seed represents the geographic range of
Nelson's checker-mallow, and part of this stored seed is in facilities
certified by the Center for Plant Conservation. Therefore, we conclude
that this criterion has been met.
Delisting Criterion 5: Post-Delisting Monitoring (PDM) Plans and
Agreements To Continue PDM Are in Place and Ready for Implementation at
the Time of Delisting
The recovery plan specifies that monitoring of populations
following delisting will verify the ongoing recovery of the species,
provide a basis for determining whether the species should be again
placed under the protection of the Act, and provide a means of
assessing the continuing effectiveness of management actions.
The PDM plan for Nelson's checker-mallow outlines an approach to
monitoring Nelson's checker-mallow for a period of 10 years after the
species is delisted. This plan addresses the current status of the
species and provides details associated with monitoring methods and
implementation, including site selection, data analysis, monitoring
schedules, and reporting expectations. It also describes potential
outcomes in the context of how secure the species remains after
delisting. In addition, the PDM plan outlines roles and
responsibilities and estimates associated costs. The PDM plan is
available at Docket No. FWS-R1-ES-2021-0154 on https://www.regulations.gov.
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and the implementing
regulations in title 50 of the Code of Federal Regulations set forth
the procedures for determining whether a species is an endangered
species or a threatened species, issuing protective regulations for
threatened species, and designating critical habitat for endangered and
threatened species. In 2019, jointly with the National Marine Fisheries
Service, the Service issued a final rule that revised the regulations
in 50 CFR part 424 regarding how we add, remove, and reclassify
endangered and threatened species and the criteria for designating
listed species' critical habitat (84 FR 45020; August 27, 2019). On the
same day, the Service also issued final regulations that, for species
listed as threatened species after September 26, 2019, eliminated the
Service's general protective regulations automatically applying to
threatened species the prohibitions that section 9 of the Act applies
to endangered species (84 FR 44753; August 27, 2019).
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 consider these same five
factors in delisting a species (50 CFR 424.11(c) and (e)).
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the species' expected response and
the effects of the threats--in light of those actions and conditions
that will ameliorate the threats--at an individual, population, and
species level. We evaluate each threat and its expected effects on the
species, then analyze the cumulative effect of all of the threats on
the species as a whole. We also consider the cumulative effect of the
threats in light of those actions and conditions that will have
positive effects on the species, such as any existing regulatory
mechanisms or conservation efforts. The Secretary determines whether
the species meets the definition of an ``endangered species'' or a
``threatened species'' only after conducting a 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
[[Page 71496]]
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.
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent our decision
on whether the species should be listed as an endangered or threatened
species under the Act. However, it does provide the scientific basis
that informs our regulatory decision, which involves the further
application of standards within the Act and its implementing
regulations and policies. The following is a summary of the key results
and conclusions from the SSA report; the full SSA report can be found
at Docket No. FWS-R1-ES-2021-0154 on https://www.regulations.gov.
To assess Nelson's checker-mallow viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency is the ability of the species to withstand environmental and
demographic stochasticity (for example, wet or dry, warm or cold
years), redundancy is the ability of the species to withstand
catastrophic events (for example, droughts, large pollution events),
and representation is the ability of the species to adapt to both near-
term and long-term changes in its physical and biological environment
(for example, climate conditions, pathogen). In general, species
viability will increase with increases in resiliency, redundancy, and
representation (Smith et al. 2018, p. 306). Using these principles, we
identified the species' ecological requirements for survival and
reproduction at the individual, population, and species levels, and
described the beneficial and risk factors influencing the species'
viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the species' life-history needs.
The next stage involved an assessment of the historical and current
condition of the species' demographics and habitat characteristics,
including an explanation of how the species arrived at its current
condition. The final stage of the SSA involved making predictions about
the species' responses to positive and negative environmental and
anthropogenic influences. Throughout all of these stages, we used the
best available information to characterize viability as the ability of
a species to sustain populations in the wild over time. We use this
information to inform our regulatory decisions.
Summary of Biological Status and Threats
In this discussion, we review the biological condition of the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability.
Ecological Needs
Nelson's checker-mallow usually occupies open habitats that are
free from encroachment of trees and shrubs. In the absence of
disturbance to set back succession, prairie habitat is subject to woody
species encroachment, gradually transitioning into shrub or woodland
habitat. Periodic disturbance, such as fire or fall mowing, are
necessary to maintain the open, high-light prairie habitats that
Nelson's checker-mallow populations thrive in. In addition, resilient
Nelson's checker-mallow populations need a sufficient number of
individuals to withstand stochastic events and disturbances. The
minimum viable population size for Nelson's checker-mallow is not
identified. However, the recovery plan specifies that independent
populations should number at least 200 individuals (Service 2010, p.
IV-20), which provides a basis for evaluating population status.
For Nelson's checker-mallow to be considered viable, the species
must be able to withstand catastrophic events and adapt to
environmental changes. This can be achieved with a sufficient number of
resilient populations distributed across its geographic range and
representing the range of ecological settings in which the species is
known to exist. The minimum number of populations required for Nelson's
checker-mallow has not been determined. However, distribution and
abundance goals laid out in the recovery plan (Service 2010, pp. IV-35-
IV-36) and described under Recovery Criteria, above, provide a
benchmark for evaluating the species.
Factors Influencing the Species
At the time of listing in 1993, the primary threats identified
affecting Nelson's checker-mallow were urban and agricultural
development, ecological succession that results in shrub and tree
encroachment of open prairie habitats, and competition with invasive
weeds. Planned construction and expansion of a reservoir on Walker
Creek (a tributary to the Nestucca River) was identified as a future
threat as associated inundation would result in the loss of many
plants, including the largest population of the species known to exist
at the time. The listing rule (58 FR 8235; February 12, 1993) also
noted the potentially negative effects of overcollection for scientific
and horticultural purposes, predation by weevils, and small population
size. Some inadequacies in regulatory mechanisms were also identified.
Subsequent to listing, climate change and hybridization were also
identified as potential threats to the viability of Nelson's checker-
mallow.
We considered all of these threats when considering whether the
species continues to warrant protection under the Act. The threat of
inundation never materialized; the proposed reservoir was not
constructed, given that Walker Creek was designated as part of Oregon's
State Scenic Waterway program in 1992, and as part of the National Wild
and Scenic Rivers program in 2019 (Oregon Department of Parks and
Recreation 2021, p. 1). These two designations make construction of a
reservoir in this area unlikely at this time or in the future due to
additional regulatory requirements. We previously determined that
overcollection does not occur to such a degree that it has a
population-level effect, and that regulatory mechanisms are adequately
reducing the effects of threats that could act at a population scale
(Service 2012, pp. 22-28). Weevil predation
[[Page 71497]]
occasionally impacts individual plants and may locally affect some
populations; however, it is seasonal in nature and unpredictable. We
did not find that weevil predation occurs at spatial and temporal
scales large enough to affect the overall status of Nelson's checker-
mallow given the plant's current population levels.
Many sites with small numbers of Nelson's checker-mallow remain
distributed throughout the species' range. However, the number of
populations with more than 1,000 plants has increased from 5 when the
species was listed in 1993 to 24 populations in 2021 (see table 1,
above; Service 2012, pp. 17-19; Service 2021, p. 18). Therefore, we
conclude that small population size no longer puts the species at risk
of extinction. The potential for hybridization among species of the
same genus remains present. However, we found that the best available
data indicate that hybridization does not pose a threat to the overall
status of the species. Additional discussion of these threats is
available in the recovery plan (Service 2010, pp. II-30-II-31 and
chapter III), the 2012 5-year review (Service 2012, pp. 22-28), and in
the 2021 SSA report (Service 2021, pp. 8-10).
The stressors identified as having population-level effects are
habitat-related stressors and climate change. The loss, degradation,
and fragmentation of prairie habitats have cascading effects that
result in smaller population sizes, loss of genetic diversity, reduced
gene flow among populations, destruction of population structure, and
increased susceptibility to local population extirpation caused by
environmental catastrophes (Service 2010, chapter III). Climate change
acts primarily by altering habitat quality. Collectively, these
stressors can contribute to reduced viability through reductions in
resiliency, redundancy, and representation. The discussion below
details the causes and consequences of these stressors on Nelson's
checker-mallow.
Alteration of Natural and Human-Mediated Disturbance Processes
Change in community structure due to plant succession has been a
serious long-term stressor to Nelson's checker-mallow. Habitats
occupied by this species contain native grassland species, as well as
numerous introduced taxa, and are prone to transition to a later seral
stage of vegetative development. The natural transition of prairie to
forest in the absence of disturbance such as fire can lead to the loss
of Nelson's checker-mallow sites (Service 2012, p. 24). However, active
management of habitat through mowing and prescribed burning is
effective in reducing Nelson's checker-mallow's exposure to this
stressor.
Habitat Conversion to Agricultural and Urban Use
Agricultural and urban development has modified and destroyed
prairie habitats, resulting in fragmented, widely distributed patches
(Service 2012, p. 24). Urban development in particular results in
permanent loss of habitat and is of special concern where existing
prairie habitat exists adjacent to urban areas (Service 2010, p. III-
2). The greatest habitat losses due to land conversion are historical,
although periodic additional losses of habitat on private lands may
occur. Exposure of Nelson's checker-mallow populations to this stressor
is mitigated by protections associated with public land ownership,
conservation measures described later in this document, and State
regulations requiring mitigation and restoration of degraded habitat
(see Conservation Efforts and Regulatory Mechanisms, below).
Invasion by Nonnative Plants
Habitats occupied by Nelson's checker-mallow contain a mix of
native and nonnative species. As described above, alteration of
disturbance processes results in woody encroachment of prairie
habitats. Nonnative woody species have been of particular concern, as
they can rapidly proliferate and degrade open prairie sites (Service
2012, p. 24). In addition, nonnative, thatch-forming grasses may
effectively limit recruitment (Institute for Applied Ecology (IAE)
2017, p. 1). Although invasion by nonnative plants remains a primary
stressor to Nelson's checker-mallow populations, management practices
including mowing, burning, and shrub removal are an effective approach
to mediating these effects.
Climate Change
In the Pacific Northwest, temperature increases of 3 to 6 degrees
Celsius ([deg]C) (5.4 to 10.8 degrees Fahrenheit ([deg]F)) are
predicted by the end of the 21st century (Bachelet et al. 2011, p.
414). Although winter precipitation is predicted to increase, increased
summer temperatures are expected to cause increased evapotranspiration,
resulting in reduced growing season soil moisture (Bachelet et al.
2011, p. 414) and ultimately affecting prairie habitat quality.
Detailed quantitative estimates of the effects of these conditions on
Nelson's checker-mallow populations are not available. However,
vulnerability assessments show the species to be moderately vulnerable
to the effects of climate change (Steel et al. 2011, p. 9).
In order for the species to be resilient to changing environmental
conditions and remain viable into the future, maintenance of large
populations in heterogenous habitats across the range of the species is
required (Service 2010, p. IV-6). Management activities that maintain
open prairie habitats, including mowing, burning, and shrub removal,
have resulted in an increase in the number of large populations
throughout the range of the species. As described below, the majority
of Nelson's checker-mallow sites are managed in accordance with
conservation programs that ensure maintenance of prairie conditions and
promote the existence of viable populations into the future.
Current Condition
We assessed the current condition of Nelson's checker-mallow by
using the best available information to estimate resiliency,
redundancy, and representation. We sourced data for this analysis
primarily from the Threatened and Endangered Plant Geodatabase (version
12/31/2019), developed by IAE under a cooperative agreement with the
Service for the purposes of tracking the status of species listed under
the Act in the Willamette Valley. Additional data were compiled from
supplementary reports (IAE 2019, entire), location-specific records,
and other information in our files. We use the term ``site'' rather
than ``population'' to refer to our analytical units throughout our
current and future conditions analyses to avoid confusion; the recovery
plan defines an independent population as one that contains more than
200 individual plants, but we evaluated sites of all sizes.
Resiliency
Resiliency, the ability of populations to withstand stochastic
events, is commonly determined as a function of metrics such as
population size, growth rate, or habitat quality and quantity. We
evaluated the current resiliency of Nelson's checker-mallow sites on
the basis of abundance, as well as measurable habitat characteristics
that represent the habitat-related stressors discussed above. The four
specific metrics we included in our assessment of resiliency
(abundance, prairie habitat condition, site management, and site
protection) are discussed in more detail below. A complete description
of our analytical approach to current
[[Page 71498]]
conditions is available in the SSA report (Service 2021, pp. 19-22).
Abundance was scored based upon the total number of plants within a
site, based on the most recent surveys. Sites were scored as 1 (Low:
fewer than 200 plants), 2 (Moderate: 200-1,999 plants), or 3 (High:
equal to or more than 2,000 plants). These categorical thresholds
correspond to recovery goals, which state that recovery targets may be
achieved with a combination of at least 2 populations that number at
least 2,000 individuals and sites with less than 200 plants are not
considered independent populations.
Prairie habitat condition is a measure of overall habitat quality
and was calculated using four distinct habitat metrics that are likely
to influence population resiliency: percent woody cover, percent native
cover, native plant richness (number of unique species present), and
invasive plant cover. For each site where data on these criteria are
available, we assigned a score of 1 (Poor), 2 (Fair), or 3 (Good) for
each habitat metric. We then determined overall prairie habitat
condition for each site by averaging individual habitat metric scores.
Additional detail about scoring categories for each individual metric
is available in the SSA report (Service 2021, pp. 19-22).
Site management reflects the potential for prairie habitat
degradation due to natural succession in the absence of natural and
anthropogenic disturbance regimes. Site management may also be
influential in mediating the effects of climate change through the
maintenance of large populations in heterogenous habitats distributed
across the range of the species. To account for existing site
management that serves to offset these stressors, we assigned each site
a score of 1 (Poor: not managed for prairie conditions or unknown), 2
(Fair: generally managed for prairie conditions but no management plan
in place), or 3 (Good: managed for prairie conditions with a management
plan in place).
Site protection is a measure of the potential for losing Nelson's
checker-mallow sites to agricultural and urban development. We used
site ownership and the existence of conservation agreements to assess
how well each site is protected from development, assigning each site a
score of 1 (Poor: private ownership with no conservation easement or
similar program), 2 (Fair: private ownership with conservation easement
or similar program), or 3 (Good: public ownership or private
conservation organization ownership).
To estimate resiliency for each site, we calculated a condition
score by averaging the scores for abundance, mean prairie habitat
condition, site management, and site protection. We weighted management
twice as much as the other factors due to its relative importance to
long-term population resiliency (Service 2010, p. IV-5; Service 2021,
p. 21). Based on overall scores, current condition of each site was
classified as high (score of greater than or equal to 2.5), moderate
(score of 1.75-2.49), or low (score of less than 1.75).
Currently, we know of 66 sites containing Nelson's checker-mallow.
Thirty-one of these sites (47 percent) are in high condition, while 29
of them (44 percent) are in moderate condition. Range-wide, only six
sites (9 percent) are in low condition (Service 2021, pp. 21-26). If
this analysis were limited to the 42 independent populations (having
200 plants or more), 31 populations (74 percent) would score as high
condition, 7 populations (17 percent) would score as moderate
condition, and 4 populations (9 percent) would score as low. These
results demonstrate relatively high resiliency across the range of
Nelson's checker-mallow.
Redundancy
Redundancy is defined as a species' ability to withstand
catastrophic events and is determined as a function of the number of
populations, as well as their distribution and connectivity. The
historical distribution of Nelson's checker-mallow populations is
largely unknown. Throughout its range, Nelson's checker-mallow is
restricted to remnant prairie habitats that are highly fragmented due
to a history of land conversion and natural succession following
alterations to disturbance cycles. However, since the time of listing
in 1993, habitat restoration, reintroductions, and habitat protection
have collectively improved the status of the species. Among the 42
independent populations, more than 330,000 individual plants are
distributed across 6 of the 7 recovery zones (Service 2021, pp. 15,
27), demonstrating overall good redundancy.
Representation
Representation refers to the ability of a species to adapt to
change, and is based upon considerations of geographic, genetic,
ecological, and niche diversity. Because we lack information about the
genetic diversity of the species, we rely on geographical and
ecological diversity in our assessment of representation. Populations
(sites with 200 plants or more) of Nelson's checker-mallow are
currently distributed in 6 of the 7 recovery zones and occur in both
the Willamette Valley and in the Coast Range. The species occupies a
range of prairie sites with various soil textures and moisture levels
and occurs in a wide range of plant communities including meadows,
marshes, wetlands, riparian/tree shrub forests, and disturbed areas.
This indicates that the species has the capacity to adapt to a variety
of environmental conditions and has good representation.
Future Viability
To assess the future viability of Nelson's checker-mallow, we
considered the factors that will influence the species in the
foreseeable future. We define the foreseeable future as 25 to 50 years.
This interval was chosen because it encompasses the length of time over
which we conclude we can make reliable predictions about the
anticipated effect of climate change. In addition, this period of time
is sufficient to observe population trends for the species, based on
its life-history characteristics. It also captures the terms of many of
the management plans and conservation easements that are in effect at
Nelson's checker-mallow sites.
We determined that Nelson's checker-mallow will continue to be
influenced by the factors that have historically influenced and are
currently influencing the species, albeit at different relative rates
into the future. Therefore, in our analysis of future viability, we
considered habitat-related changes and climate change. We considered
the specific sources of habitat loss, degradation, and fragmentation
(alteration of natural and human-mediated disturbance processes,
habitat conversion to agricultural and urban use, and invasion by
nonnative plants) in light of ongoing conservation support, including
habitat management and site protection.
We make several assumptions about ongoing conservation support in
the foreseeable future. Support for the conservation of Nelson's
checker-mallow has been high among government agencies, nongovernmental
conservation organizations, and some private landowners. We assume that
management of existing sites and priority recovery and management
actions for the species will continue at approximately the current
pace, and that the species will continue to benefit from this ongoing
conservation support. We base this assumption on the number of Nelson's
checker-mallow sites that have long-term or perpetual management
agreements. These plans vary in scope and complexity across ownerships,
but all provide at least a basic level of habitat management that
[[Page 71499]]
will benefit Nelson's checker-mallow. We expect adaptive management in
response to changing conditions at sites with current plans, and
efforts to develop new management plans at sites without plans. This is
based on the commitment of the wide variety of conservation partners
with whom we collaborate on similar prairie habitat conservation
efforts. These partners typically tier their conservation efforts to
the 2010 recovery plan that includes Nelson's checker-mallow with
several other listed plants and insects, emphasizing restoration and
maintenance of prairie habitat for the benefit of numerous species.
This provides an impetus for continued formalized management of these
sites and maintenance of Nelson's checker-mallow habitat.
Although sites not protected by virtue of ownership or conservation
easement may be at risk due to development in the future, these sites
are in the minority and their unprotected status is reflected in our
analysis.
Resiliency
To assess the future viability of Nelson's checker-mallow, we
considered a single scenario where we assumed that climate change will
result in a dramatic reduction in abundance across the species' range
but site management and protection will remain intact, as discussed
above. We then reassessed population condition, applying the same
methodology used for assessing current condition.
Published assessments do not provide detailed quantitative
estimates of the effects of climate change on Nelson's checker-mallow
populations. To evaluate the effects of climate change on individual
sites, we characterized a worst-case future scenario in terms we could
use in our analysis of future condition. In consultation with species
experts and conservation partners, we defined the worst-case scenario
as one where increased mortality and decreased recruitment culminate in
a 50 percent reduction in abundance at all sites. We consider a 50
percent reduction to represent the upper boundary of plausibility as
the actual effects of climate change on population sizes are likely to
be more moderate based on climate change vulnerability assessment
modeling (Steel et al. 2011, p. 30), and sites are expected to be
protected and adaptively managed as described above. Nevertheless,
assuming a 50 percent reduction provides a generous margin of error if
these assumptions are violated. We acknowledge that a uniform response
to climate change across the species' range is not likely, and that
some populations may fare better than others under future conditions.
However, this approach serves to demonstrate future viability under
challenging future conditions.
In the scenario described above, resiliency declined modestly, with
60 sites remaining in high or moderate condition (see figure 1, below).
The number of sites in high overall condition decreased from 31 to 25,
relative to current condition, while the number of sites in moderate
condition increased from 29 to 35. Sites reduced to moderate condition
are relatively well-distributed throughout the range of the species,
with one site occurring in the Coast Range recovery zone, three sites
occurring in the Corvallis West recovery zone, one site occurring in
the Portland recovery zone, and one site occurring in the Salem West
recovery zone. The number of sites in overall low condition (six sites)
does not change in the foreseeable future.
These changes in overall future condition are driven by changes in
abundance. In our future scenario, 6 additional sites fall below 200
individual plants and, therefore, receive a low score for abundance.
Sites with low abundance are more vulnerable to stochastic events and
carry a higher risk for extirpation in the future. If we only consider
sites that retain independent populations with 200 plants or more, the
number of populations in high condition decrease from 31 to 27, the
number in moderate condition remain at 7, and the number in low
condition decrease from 4 to 2 for future overall condition. The
relative importance of site management and protection in guarding
against habitat loss and maintaining site resiliency even in sites with
small numbers of plants is reflected in the relatively modest downward
shift in overall future condition, relative to current condition (see
figure 2, below).
Redundancy
Our analysis of future condition indicates that redundancy will be
maintained in the foreseeable future; 66 extant sites will remain well-
distributed throughout the current known range of the species.
Consequently, no major changes in the species' ability to withstand
catastrophes in the future is expected.
Representation
The distribution of extant Nelson's checker-mallow sites does not
change under the parameters of our future condition analysis.
Consequently, changes in ecological diversity are not projected to
materialize as a result of climate change, and the species is likely to
continue to occupy prairie habitat throughout its range and retain its
adaptive capacity.
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Collectively, our analysis of the resiliency, redundancy, and
representation demonstrates that in 25 to 50 years, the viability of
Nelson's checker-mallow will not be significantly reduced.
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have
analyzed the cumulative effects of identified threats and conservation
actions on the species. To assess the current and future condition of
the species, we evaluate the effects of all the relevant factors that
may be influencing the species, including threats and conservation
efforts. Because the SSA framework considers not just the presence of
the factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the
[[Page 71502]]
cumulative effects of the factors and replaces a standalone cumulative
effects analysis.
Conservation Efforts and Regulatory Mechanisms
Despite permanent habitat loss and modification, habitat
restoration and protection projects have been implemented on both
public and private lands throughout the range of Nelson's checker-
mallow. These projects offset some of the permanent habitat losses and,
as a result, Nelson's checker-mallow habitat is increasing (Bartow
2020, pers. comm.), particularly in the Corvallis West and Salem West
recovery zones. The Wetland Reserve Program and other Farm Bill
programs administered by the USDA's NRCS have been widely implemented
in the Willamette Valley. Other programs, such as the Service's
Partners for Fish and Wildlife program and the Act's section 10
programs (i.e., safe harbor agreements and habitat conservation plans),
are also available to landowners. These programs are focused on habitat
restoration and protection and have contributed significantly to
improving the status of Nelson's checker-mallow.
Range-wide, the majority of the 66 sites known to support Nelson's
checker-mallow benefit from some type of conservation measure, by
virtue of ownership or habitat management agreements or both. Fifty-
seven of the 66 total Nelson's checker-mallow sites are managed in
accordance with the conservation programs described above, which ensure
maintenance of prairie conditions required by the species. Of these
sites, 44 are owned by a public entity. Regarding the 42 independent
populations (having 200 plants or more), 38 have formal management
plans, 26 of which are in public ownership, which offers protection
from prairie habitat conversion to other uses. The terms of management
agreements vary, but they are typically valid for 10 to 30 years, with
some extending into perpetuity. Collectively, these management regimes
ensure habitat protections at a decades-long scale for most sites.
Determination of Nelson's Checker-Mallow's 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 Act's definition of an endangered species
or a threatened species. The Act defines an ``endangered species'' as a
species that is in danger of extinction throughout all or a significant
portion of its range, and a ``threatened species'' as a species that is
likely to become an endangered species within the foreseeable future
throughout all or a significant portion of its range. The Act requires
that we determine whether 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
After evaluating threats to the species and assessing the
cumulative effect of the threats under the Act's section 4(a)(1)
factors, we found that the primary drivers of the status of Nelson's
checker-mallow have been habitat loss, degradation, and fragmentation
due to alteration of natural and human-mediated disturbance processes
that maintain open prairie habitat, land conversion to agricultural and
urban use, and invasion by nonnative plants (Factor A). The best
available information indicates that, while still present to some
degree, overcollection (Factor B), predation (Factor C), small
population size (Factor E), and hybridization (Factor E) are no longer
threats to the viability of the species.
Potential inundation of the largest and most vigorous population
(Walker Flat) by reservoir development was seen as a major threat at
the time of listing. The threat of inundation never materialized as the
proposed reservoir was not constructed and is highly unlikely in the
future due to the regulatory mechanisms (Factor D) discussed above.
Other habitat threats (i.e., alteration of disturbance processes and
associated woody encroachment, the threat of invasive plants, land use
conversion) are still present on the landscape; however, the magnitude
and scope of these threats have decreased from historical levels, and
have been offset by a variety of management and conservation measures
in the 30 years since Nelson's checker-mallow was listed. Active
maintenance of prairie habitat through mowing and prescribed burning
has demonstrably reduced the threat posed by alteration of disturbance
processes and associated woody encroachment (Factor A). The threat of
invasive plants (Factor A) has also been significantly reduced as a
result of active management.
Range-wide, 58 of the 66 sites known to contain Nelson's checker-
mallow have formalized management plans. This number of formalized
management plans is expected to remain relatively constant into the
foreseeable future. Similarly, 60 Nelson's checker-mallow sites are
either in public ownership, have been acquired by nongovernmental
conservation organizations, or are enrolled in conservation easement
programs (Factor D), which has substantially reduced the risk of
habitat and population losses due to land-use conversion (Factor A).
The number of sites protected from conversion to agricultural or urban
use due to public or conservation organization ownership is expected to
remain relatively constant in the future. In sum, despite the continued
presence of habitat-related threats on the landscape, advances in site
management and protection have led to a significant reduction in
threats and overall improvement in the status of the species since
listing.
When Nelson's checker-mallow was listed, we estimated that the
species occurred at 48 sites, only 5 of which contained more than 1,000
individuals, and 30 percent of the known individuals of the species
were threatened with inundation due to the planned construction of a
dam. At the time of the SSA report, 334,968 individual plants were
distributed across the historical range of the species. They occurred
at 66 sites, 24 of which have at least 1,000 individuals, and
inundation was no longer considered a likely threat. Our analysis of
current conditions, based on abundance, habitat quality, site
management, and site protection, shows that 60 of those sites are in
either moderate or high condition, indicating relatively high
resiliency. The sites are distributed among six of the seven recovery
zones and occur in varied geographical and ecological settings,
demonstrating overall high redundancy and representation. Recent
surveys also show increasing trends in plant abundance across the
species' range, with the total number of plants increasing to 426,032
in 2022 (Service 2022, pp. 2-3).
Subsequent to listing, climate change and its potential to
negatively affect prairie habitat was identified as a potential threat
to Nelson's checker-mallow. We considered the potential consequences of
climate change on the species and evaluated a worst-case future
scenario that included a 50 percent reduction in the size of all known
populations across the range of the species in the next 25 to 50 years.
Even with such severe population
[[Page 71503]]
reduction, the species retained appreciable levels of resiliency,
redundancy, and representation, with only six sites showing a reduction
in resiliency, and the maintenance of geographical and ecological
distribution of the species.
We recognize that some habitat-related threats remain present, and
they have ongoing impacts to Nelson's checker-mallow populations. We
acknowledge that the specific effects of climate change on Nelson's
checker-mallow and its habitat are uncertain and may have a negative
impact. However, we found that current and expected patterns in site
protection and habitat management (Factor D) are sufficient to prevent
effects to the species such that it would meet the Act's definition of
an endangered species or a threatened species. Thus, after assessing
the best available information, we determine that Nelson's checker-
mallow is not in danger of extinction now or likely to become so within
the foreseeable future throughout all of its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
within the foreseeable future throughout all or a significant portion
of its range. The court in Center for Biological Diversity v. Everson,
435 F. Supp. 3d 69 (D.D.C. 2020) (Everson), vacated the provision 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'' (Final Policy; 79 FR
37578; July 1, 2014) that provided if the Services determine that a
species is threatened throughout all of its range, the Services will
not analyze whether the species is endangered in a significant portion
of its range.
Therefore, we proceed to evaluating whether the species is
endangered or likely to become so within the foreseeable future in a
significant portion of its range--that is, whether there is any portion
of the species' range for which it is true that both (1) the portion is
significant, and (2) the species is in danger of extinction now or
likely to become so within the foreseeable future in that portion.
Depending on the case, it might be more efficient for us to address the
``significance'' question or the ``status'' question first. We can
choose to address either question first. Regardless of which question
we address first, if we reach a negative answer with respect to the
first question that we address, we do not need to evaluate the other
question for that portion of the species' range.
Following the court's holding in Everson, 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) or likely to
become so within the foreseeable future (i.e., threatened). In
undertaking this analysis for Nelson's checker-mallow, 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 may be endangered or threatened.
We evaluated the range of Nelson's checker-mallow to determine if
the species is in danger of extinction now or likely to become so in
the foreseeable future in any portion of its range. The range of a
species can theoretically be divided into portions in an infinite
number of ways. We focused our analysis on portions of the species'
range that may meet the definition of an endangered or threatened
species. For Nelson's checker-mallow, we considered whether the threats
or their effects on the species are greater in any biologically
meaningful portion of the species' range than in other portions such
that the species is in danger of extinction now or likely to become so
within the foreseeable future in that portion.
We examined the following threats: habitat loss, degradation,
fragmentation due to alteration of natural and human-mediated
disturbance processes that maintain open prairie habitat; land
conversion to agricultural and urban use; invasion by nonnative plants;
and climate change, including cumulative effects.
The threat of habitat loss from alteration of disturbance
processes, land-use conversion, and invasion of nonnative plants has
decreased in all portions of the species' range since the time of
listing, largely due to land protection efforts and active habitat
management. Although these residual threats influence the species
variably across its range, there is no portion of the range where there
is currently a concentration of threats at a biologically meaningful
scale, relative to other areas of the range. In the foreseeable future,
climate change may interact synergistically with other threats to
negatively affect habitat quality. We acknowledge that uniform response
across the species' range is not likely, and that some populations may
fare worse than others under future conditions. However, the best
available information does not indicate that any portion of the
species' range will deteriorate disproportionately in the foreseeable
future. We anticipate that any negative consequence of co-occurring
threats will be successfully addressed through the same active
management actions that have contributed to the ongoing recovery of
Nelson's checker-mallow and that are expected to continue into the
future.
We found no portion of the Nelson's checker-mallow range where the
biological condition of the species differs from its condition
elsewhere in its range such that the status of the species differs from
its condition elsewhere in its range.
Therefore, no portion of the species' range provides a basis for
determining that the species is in danger of extinction now or likely
to become so within the foreseeable future in a significant portion of
its range, and we determine that the species is not in danger of
extinction now or likely to become so within the foreseeable future in
any significant portion of its range. This does not conflict with the
courts' holdings in Desert Survivors v. U.S. Department of the
Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D. Cal. 2018), and Center
for Biological Diversity v. Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz.
2017), because, in reaching this conclusion, we did not need to
consider whether any portions are significant and, therefore, did not
apply the aspects of the Final Policy's definition of ``significant''
that those court decisions held were invalid.
Determination of Status
Our review of the best available scientific and commercial
information indicates that Nelson's checker-mallow does not meet the
definition of an endangered species or a threatened species in
accordance with sections 3(6) and 3(20) of the Act. In accordance with
our regulations at 50 CFR 424.11(e)(2), because Nelson's checker-mallow
does not meet the Act's definition of an endangered or a threatened
species, we are removing Nelson's checker-mallow from the Federal List
of Endangered and Threatened Plants.
Effects of This Rule
This final rule revises 50 CFR 17.12(h) by removing Nelson's
checker-mallow from the Federal List of Endangered and Threatened
Plants. The prohibitions and conservation measures provided by the Act,
particularly through sections 7 and 9, will no longer apply to this
species. Federal agencies will no longer be required to consult with
the Service under section 7 of the Act in the event
[[Page 71504]]
that activities they authorize, fund, or carry out may affect Nelson's
checker-mallow. There is no critical habitat designated for this
species, so there is no effect to 50 CFR 17.96.
Post-Delisting Monitoring
Section 4(g)(1) of the Act requires us, in cooperation with the
States, to implement a monitoring program for not less than 5 years for
all species that have been delisted due to recovery. PDM refers to
activities undertaken to verify that a species delisted due to recovery
remains secure from the risk of extinction after the protections of the
Act no longer apply. The primary goal of PDM is to monitor the species
to ensure that its status does not deteriorate, and if a decline is
detected, to take measures to halt the decline so that proposing it as
endangered or threatened is not again needed. If at any time during the
monitoring period data indicate that protective status under the Act
should be reinstated, we can initiate listing procedures, including, if
appropriate, emergency listing.
We are delisting Nelson's checker-mallow due to recovery based on
our analysis in the SSA report, expert opinions, and conservation
actions taken. We have prepared a PDM plan that discusses the current
status of the taxon and describes the methods for monitoring its
status. The PDM plan: (1) summarizes the status of Nelson's checker-
mallow at the time of delisting; (2) describes frequency and duration
of monitoring; (3) discusses monitoring methods and sampling regimes;
(4) defines what triggers will be evaluated to address the need for
additional monitoring; (5) outlines reporting requirements and
procedures; (6) provides a schedule for implementing the PDM plan; and
(7) defines responsibilities. It is our intent to work with our
partners towards maintaining the recovered status of Nelson's checker-
mallow. To view a copy of the PDM plan, see ADDRESSES, above.
Required Determinations
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be
prepared in connection with determining a species' listing status under
the Endangered Species Act. We published a notice outlining our reasons
for this determination in the Federal Register on October 25, 1983 (48
FR 49244).
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 federally recognized
Tribes on a government-to-government basis. In accordance with
Secretary's 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. Several Nelson's checker-mallow sites
occur on Confederated Tribe of Grand Ronde (Tribe) lands, and some
sites may lie within the usual and accustomed places for Tribal
collection and gathering of resources. The Tribe has a plan in place to
manage and monitor Nelson's checker-mallow and a new memorandum of
understanding with the Service for data sharing.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at https://www.regulations.gov and upon request from
the Service's Oregon Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this final rule are the staff members of the
Fish and Wildlife Service's Species Assessment Team and the Oregon 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.
Sec. 17.12 [Amended]
0
2. In Sec. 17.12, in paragraph (h), amend the List of Endangered and
Threatened Plants by removing the entry for ``Sidalcea nelsoniana''
under FLOWERING PLANTS.
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-22759 Filed 10-16-23; 8:45 am]
BILLING CODE 4333-15-P