Federal Register, Volume 81 Issue 33 (Friday, February 19, 2016) 2016 Federal Register, 81 FR 8408-8418; Centralized Library: U.S. Fish and Wildlife Service -

[Federal Register Volume 81, Number 33 (Friday, February 19, 2016)]
[Rules and Regulations]
[Pages 8408-8418]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-03296]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2013-0092; 4500030113]
RIN 1018-AY77

Endangered and Threatened Wildlife and Plants; Reclassifying
Hesperocyparis abramsiana (=Cupressus abramsiana) as Threatened

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
threatened species status under the Endangered Species Act of 1973
(Act), as amended, for Hesperocyparis abramsiana (=Cupressus
abramsiana) (Santa Cruz cypress), a plant species found in Santa Cruz
and San Mateo Counties in west-central California. We also finalize the
correction to the scientific name of Santa Cruz cypress on the List of
Endangered and Threatened Plants. The effect of this regulation will be
to change the listing status of Santa Cruz cypress from an endangered
species to a threatened species on the List of Endangered and
Threatened Plants.

DATES: This rule becomes effective March 21, 2016.

ADDRESSES: This final rule is available on the internet at http://www.regulations.gov under Docket No. FWS-R8-ES-2013-0092 and at http://www.fws.gov/ventura/. Comments and materials we received, as well as
supporting documentation we used in preparing this rule, are available
for public inspection at http://www.regulations.gov. All of the
comments, materials, and documentation that we considered in this
rulemaking are available by appointment, during normal business hours
at: U.S. Fish and Wildlife Service, Ventura Fish and Wildlife Office,
2493 Portola Road, Suite B, Ventura, California 93003; telephone 805-
644-1766; facsimile 805-644-3958.

FOR FURTHER INFORMATION CONTACT: Stephen P. Henry, Field Supervisor,
U.S. Fish and Wildlife Service, Ventura Fish and Wildlife Office, 2493
Portola Road, Suite B, Ventura, CA 93003; telephone 805-644-1766;
facsimile 805-644-3958. Persons who use a telecommunications device for
the deaf (TDD) may call the Federal Information Relay Service (FIRS) at
800-877-8339.

SUPPLEMENTARY INFORMATION:

Previous Federal Action

On September 3, 2013, we proposed to reclassify the Santa Cruz
cypress from an endangered species to a threatened species (78 FR
54221) on the List of Endangered and Threatened Plants in part 17 of
title 50 of the Code of Federal Regulations (CFR). Please refer to the
proposed reclassification rule for the Santa Cruz cypress (78 FR 54221;
September 3, 2013) for a detailed description of the previous Federal
actions concerning this species. This final rule constitutes our final
action regarding the petition to reclassify the Santa Cruz cypress from
endangered to threatened (Pacific Legal Foundation 2011, pp. 1-11).

Background

For a detailed discussion of Santa Cruz cypress's description,
taxonomy, life history, habitat, soils, distribution, abundance, age
and size distribution, and role of fire in regeneration, please see the
Santa Cruz Cypress Hesperocyparis [Cupressus] abramsiana Species Report
(Service 2015, pp. 1-57) (Species Report), which is available for
review under Docket No. FWS-R8-ES-2013-0092 at http://www.regulations.gov. Please refer to the proposed reclassification rule
for the Santa Cruz cypress (78 FR 54221; September 3, 2013) (Service
2013b) for a summary of information about the species and the proposed
change in taxonomy: In this final rule, we replace the entry for
Cupressus abramsiana from 50 CFR 17.12(h) with an entry for
Hesperocyparis abramsiana.

Summary of Biological Status and Factors Affecting the Species

This section introduces and summarizes the biological status and
factors affecting Santa Cruz cypress identified at each period of the
species' review history. We have described the level of threats using a
scale of low, moderate, and high (as discussed in Appendix 1 of the
Species Report). A low-level threat indicates a threat that has the
potential to occur at any time, although the possibility is unlikely
that this threat will affect the species across its range or interrupt
the species' persistence into the future. A moderate-level threat
indicates a threat that is currently affecting the long-term
persistence of the species in a particular population or across its
range, but does not pose an imminent threat to the persistence of the
species. A high-level threat indicates a well-documented, imminent
threat to a large number of individuals that has the potential to
disrupt the long-term persistence of the species in a particular
population or across its range.
At the time of listing, the primary threats to Santa Cruz cypress
were residential development, agricultural conversion, logging, oil and
gas drilling, genetic introgression, and alteration of the natural
frequency of fires that threatened to destroy portions of each
population (52 FR 675; January 8, 1987). Other (secondary) threats in
1987 included vandalism, disease, and inadequate regulatory mechanisms
(52 FR 675). Of the primary threats in 1987, residential development,
agricultural conversion, and logging threatened individual Santa Cruz
cypress trees and stands with imminent destruction. Other threats
identified in the Recovery Plan for the Santa Cruz Cypress (Service
1998) also included oil and gas development, reproductive isolation,
introgression, and competition from nonnative species.

[[Page 8409]]

On May 21, 2010, we notified the public in the Federal Register of
the availability of the 5-year review for Santa Cruz cypress (75 FR
28636). The 5-year review was completed on August 17, 2009 (Service
2009, entire), and resulted in a recommendation to change the status of
the species from an endangered species to a threatened species. At the
time of the 2009 5-year review, we reported that the threats to Santa
Cruz cypress from residential development, agricultural conversion, and
logging had decreased since the time of listing. This decrease was
achieved primarily through the acquisition of lands for conservation by
the California Department of Pesticide Regulation (CDPR) and the
California Department of Fish and Wildlife (CDFW) and through other
private land transfers. No evidence existed that oil and gas drilling
was a threat to the species. The 5-year review also found information
that the population size (number of individuals at each site) of the
species was greater than known at the time of listing. The threats from
alteration of fire frequencies, disease or predation, reproductive
isolation, genetic introgression, vandalism, and competition with
nonnative species remained at the same level as identified during the
development of the Recovery Plan (Service 1998).
The 5-year review identified low levels of regeneration (new
recruitment of seedlings and young plants) and the effects of climate
change as concerns for the long-term persistence of the Santa Cruz
cypress (Service 2009, pp. 9-13). Climate change was classified as a
moderate-level threat because projections indicated that the regional
Santa Cruz climate will become warmer and drier, which would directly
affect Santa Cruz cypress across its range over the next century
(Service 2009, pp. 10-11).
In accordance with section 4(a)(1) of the Act, our assessment of
the current status of a species is based on whether a species is in
danger of extinction or likely to become so because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence.
Current or potential future threats to Santa Cruz cypress include
alteration of the fire regime (Factors A and E), competition with
nonnative species (Factors A and E), climate change (Factor A), genetic
introgression (Factor E), and vandalism and unauthorized recreational
activities (Factors A and E). The acquisition of lands for conservation
by State agencies and designation of lands as sensitive areas by Santa
Cruz County have resulted in protection of all or large portions of
each population, but currently do not provide protections from the
threats listed above (Factor D). Other potential impacts evaluated and
found either to be of no concern, insignificant concern, or negligible
at this time include residential development, agricultural conversion,
logging, and oil and gas drilling (Factor A); overutilization (Factor
B); disease or predation (Factor C); and reproductive isolation (Factor
E). Please see Table 1, Table 4, and the ``Discussion of Threats to the
Species'' section of the Species Report for a thorough discussion of
all potential and current threats (Service 2015, pp. 3, 22-40).
We note, however, that, although the threats of residential
development and agricultural conversion to Santa Cruz cypress have been
ameliorated considerably compared to the time of listing (to the point
that we consider them insignificant at this time), they may still occur
at two of the populations (i.e., the Bracken Brae and Bonny Doon
populations), although the likelihood is less than previously
identified in the Recovery Plan. Specifically, while these lands are
not in permanent conservation ownership, the likelihood of potential
residential development is reduced at the Bracken Brae population
because the land is owned by a conservation-oriented landowner (Service
2015, p. 45) and Santa Cruz County designation of these lands as a
sensitive area places a restriction on certain kinds of development. We
do not expect this county designation as a sensitive area to change in
the future, even when the species is reclassified to threatened or if
it is eventually delisted. Additionally, potential impacts of
agricultural conversion is currently reduced (to an insignificant
level) at the Bonny Doon population as a result of a large proportion
of the population (i.e., approximately 70 percent) now occurring on
lands designated as a reserve (Service 2015, pp. 15, 16, 45). The
portion that is not part of the reserve (i.e., approximately 30
percent) is still subject to potential agricultural conversion,
although potential loss of this area outside the reserve is relatively
unlikely due to the county's designation of these lands as a sensitive
area, thus agricultural conversion is a low-magnitude threat overall
for the population and the species as a whole.
The following sections provide a summary of the current threats
impacting the Santa Cruz cypress. As identified above, these threats
include alteration of the fire regime (Factors A and E), competition
with nonnative species (Factors A and E), climate change (Factor A),
genetic introgression (Factor E), vandalism and unauthorized
recreational activities (Factors A and E), and the inadequacy of
existing regulatory mechanisms (Factor D). As identified above some of
the same potential activities that affect the habitat (Factor A) of
Santa Cruz cypress can also affect individuals (Factor E). Where
appropriate, we discuss impacts to both the habitat and to individuals
of Santa Cruz cypress together for ease of discussion and analysis.

Alteration of Fire Regime

The long-term persistence of Santa Cruz cypress populations can be
affected by the disruption of the natural fire frequency because Santa
Cruz cypress requires fire (or potentially mechanical disturbance in
lieu of, or in combination with, fire) to reproduce. Most Santa Cruz
cypress populations are located close to residential areas, where
natural fires from surrounding wildland areas are excluded by the
creation of fire breaks and fuels reduction projects. Both fire
exclusion and fire suppression lengthen the interval between fires,
thus altering the natural fire regime and increasing the risk of
extirpation from senescence (growth phase from full maturity to death).
Conversely, human ignitions contribute to fire intervals that are too
short, which in turn can inhibit Santa Cruz cypress from reaching its
reproductive potential if stands burn prior to trees reaching
reproductive age. With prevalent fire exclusion on lands surrounding
Santa Cruz cypress occurring, other techniques such as mechanical
disturbance of the ground, removal of litter and nonnative invasive
species, and clearing the canopy to allow sunlight to reach the ground
may need to be utilized to achieve regeneration of the species.
Currently, mechanical disturbance and litter removal at the Bonny Doon
Ecological Reserve are being implemented on a limited basis following
the Draft Management Plan developed for the Bonny Doon Ecological
Reserve (Service 2015, pp. 37, 41, 42). Additionally in 2005, CAL FIRE
developed a vegetation management plan for the Bonny Doon Ecological
Reserve that included enhancing sensitive habitat for listed species
and improving forest health

[[Page 8410]]

(CAL FIRE 2005, p. 3). This plan has not been fully implemented and is
currently delayed (Service 2015, p. 42).
The altered fire regime presents a high-level threat to the long-
term persistence of all of the Santa Cruz cypress populations and their
habitat. Santa Cruz cypress depends on fire to maintain appropriate
habitat conditions and to release many of the seeds stored in cones in
the canopy. As adult trees senesce and die, seed production decreases,
such that there is insufficient seed available to regenerate the stand
(McGraw 2007, p. 24; Service 2015, p. 25). In the absence of fire,
recruitment still occurs, but at a low level that is likely not
sufficient for stand replacement (McGraw 2011, p. 2; Service 2015, p.
25). To germinate in large numbers, the species requires open ground
and canopy conditions created by fires intense enough to kill the
parent tree. In the absence of fire the species is only able to
germinate opportunistically in rock outcroppings or small areas that
have been disturbed. Without appropriate disturbance from fire, the
stands could eventually senesce, resulting in minimal reproduction in
small rock outcrops that may be inadequate to maintain population
viability.
Within the range of the Santa Cruz cypress, recent and past fires
have been documented at the Bonny Doon (2008) and Eagle Rock
populations (Service 2015, pp. 23-24), although even-aged stands at the
Butano Ridge, Bracken Brae, and Majors Creek populations suggest that
past fires have occurred in these areas as well. We estimate that
approximately 50 percent (1,500 Santa Cruz cypress individuals) of the
Bonny Doon population was killed within the severely burned areas
(Service 2012, unpubl. data). This is based on visual inspection of the
burn intensity map and our knowledge of the distribution of this
population. In 1905, a severe fire also destroyed a large portion of
the Eagle Rock population (Wolf and Wagener 1948, p. 218). Prior to the
fire, there was a ``considerable stand'' of Santa Cruz cypresses, which
were used by the landowner for timber to build barns and other
buildings (Wolf and Wagener 1948, p. 218). According to Lyons (1988,
pp. 19-20), another fire burned through a majority of the Eagle Rock
population in 1942, killing most of the cypresses. Lyons (1988, p. 19)
noted that some larger individuals at the Eagle Rock site, estimated to
be 40-60 years old, appeared to have survived the fire.
Despite fire occurring within the known range of Santa Cruz
cypress, McGraw (2011, p. 2) states that the current demographics and
natural recruitment rates observed in the Majors Creek, Eagle Rock, and
Butano Ridge populations appear to be insufficient to maintain the
populations in the absence of fire (Service 2015, p. 22). Additionally,
active management to address this concern is not occurring at this
time. The altered fire regime presents a threat to the long-term
persistence of all of the Santa Cruz cypress populations, and we
consider altered fire regime to be a high-level threat to the species
(Service 2015 p. 24). See additional discussion in the ``Alteration of
Fire Regime'' section of the Species Report (Service 2015, pp. 23-25).
Most stands of Santa Cruz cypress contain reproductive individuals,
so most stands are currently facing a senescence risk from the absence
of fire. Recruitment in at least four populations (the portion of Bonny
Doon population that burned in the 2008 Martin Fire, and the Eagle
Rock, Butano Ridge, and Majors Creek populations) is evident; however,
the current level of recruitment is not sufficient to maintain the
populations in the absence of fire (Service 2015, p. 26). This is
likely also the case with the Bracken Brae population and the portion
of the Bonny Doon population that did not burn. Under these conditions
most trees would become senescent (post-reproductive) prior to a return
fire, resulting in lower stand vitality, reduced cone production, and
reduced seedling establishment. The risk of extirpation exists if
cypresses senesce and their seeds are no longer viable by the time fire
returns to a stand. This may occur if the fire interval is longer than
the lifespan of trees (Ne'eman et al. 1999, p. 240). For the purposes
of this discussion, we estimate the potential lifespan of individual
Santa Cruz cypress trees to be about 100 years based on Lyons' (1988,
pp. 2-39) estimate (see the ``Life History'' discussion in the Species
Report (Service 2015, pp. 8-9) for additional discussion).
As discussed above, without fire or other appropriate disturbance,
we expect low recruitment and decreasing reproduction as existing trees
become senescent. This scenario would most likely result in population
declines as a result of mortality of currently existing trees, and lack
of replacement due to low recruitment and declining reproduction. The
frequency, location, and intensity of fire in an area is variable and
difficult to predict, and depends on many factors including
environmental and human-caused factors, management, and suppression
efforts. For the Santa Cruz cypress there have only been one or two
recorded fires over the past 100 years within the areas occupied by the
species, and we do not expect the fire conditions, frequency, or
management to change significantly in the near future. As a result, we
do not currently consider the fire interval to be adequate to maintain
populations of the species over the long term and consider the extended
fire interval to be a threat that is likely to put the species at risk
of extinction in the future.

Competition With Nonnative Species

The presence of nonnative, invasive species impacts the long-term
persistence of Santa Cruz cypress and its habitat both currently and in
the future through competition and habitat modification. Many nonnative
species have been introduced into Santa Cruz cypress habitat through a
variety of past impacts (e.g., development, infrastructure).
Significant impacts result from Acacia dealbata (silver wattle) and
Genista monspessulana (French broom). Silver wattle and French broom
are currently impacting two populations (i.e., Majors Creek and Bonny
Doon) and are likely to impact, at minimum, two additional populations
(i.e., Eagle Rock and Bracken Brae) due to the cypress's proximity to
residential areas where ground disturbance activities promote nonnative
plant invasions.
Silver wattle is significantly impacting the Majors Creek
population and its habitat by creating dense canopies, which can
inhibit germination and growth of seedlings by blocking sunlight needed
for cypress growth (McGraw 2007, p. 23; Service 2015, pp. 31-32).
French broom is one of the most prevalent invasive species in Santa
Cruz County, distributed at elevations where all but a portion of one
Santa Cruz cypress population occurs (Moore 2002, p. 6; Service 2015,
p. 32). French broom is impacting the Bonny Doon population and its
habitat by inhibiting Santa Cruz cypress seedling establishment through
competition for open, recently disturbed soils that have access to
abundant sunlight. Additionally, but to a lesser degree, European
annual grasses (present at all populations) are known to impact Santa
Cruz cypress by precluding the establishment of seedlings. These
nonnative shrubs and annual grasses are impacting most of the
populations of Santa Cruz cypress and are expected to continue to do so
over the long term. We consider competition with nonnative species to
be a moderate-level threat to the Santa Cruz cypress. See additional
discussion in the ``Competition With

[[Page 8411]]

Nonnative Plant Species'' section of the Species Report (Service 2015,
pp. 31-33).

Climate Change

Our analyses under the Act include consideration of ongoing and
projected changes in climate. The terms ``climate'' and ``climate
change'' are defined by the Intergovernmental Panel on Climate Change
(IPCC). The term ``climate'' refers to the mean and variability of
different types of weather conditions over time, with 30 years being a
typical period for such measurements (IPCC 2013, p. 1450). The term
``climate change'' thus refers to a change in the mean or variability
of one or more measures of climate (e.g., temperature or precipitation)
that persists for an extended period, whether the change is due to
natural variability or human activity (IPCC 2013, p. 1450). Various
changes in climate may have direct or indirect effects on species.
These effects may be positive, neutral, or negative, and they may
change over time, depending on the species and other relevant
considerations, such as threats in combination and interactions of
climate with other variables (for example, habitat fragmentation) (IPCC
2014, pp. 4-11). Within central-western California (i.e., California
coastal counties from San Francisco south to Santa Barbara, including
the range of the Santa Cruz cypress), predictions indicate warmer
winter temperatures, earlier warming in the spring, and increased
summer temperatures (Point Reyes Bird Observatory (PRBO) Conservation
Science 2011, p. 35), all of which will likely result in shifts in
vegetation types. This can, for example, result in increased
competition between species like Santa Cruz cypress and other native
and nonnative species (Loarie et al. 2008, pp. 1-10), or result in
habitat changes resulting from altered fire frequency and water
availability (Service 2015, pp. 28-29). Drier conditions and increased
fire frequency that may result from climate change could also make
conditions somewhat more favorable for Santa Cruz cypress. However, we
anticipate continuing fire suppression and fire exclusion practices
would outweigh any potential favorable effects. Thus, while impacts of
climate change could potentially have either positive or negative
effects to Santa Cruz cypress, the altered fire regime as a result of
fire exclusion and fire suppression practices remains a primary threat
to the species. We therefore consider climate change to be a moderate-
level threat to the Santa Cruz cypress. See additional discussion in
the ``Climate Change'' section of the Species Report (Service 2015, pp.
26-29).

Genetic Introgression

If individuals of different cypress species are planted in close
proximity, they can exchange pollen and may produce fertile hybrid
offspring, as has been documented in a number of plant species (Rhymer
and Simberloff 1996, pp. 98-99). By this means, genes from one species
can infiltrate into another, a process called genetic introgression.
Santa Cruz cypress may be affected by introgression from residential
plantings of Hesperocyparis macrocarpa (Monterey cypress) near the
Bonny Doon population (V. Haley 1993, pers. obs.), plantings of
Cupressus glabra (Arizona cypress) near the Eagle Rock population, and
potentially by plantings near other populations due to their close
proximity to residential areas where plantings of other cypress species
could occur. Examination of genetic variation among Santa Cruz cypress
populations and between Santa Cruz cypress and neighboring species
(Millar and Westfall 1992, p. 350) indicates the potential that
hybridization may occur between Santa Cruz cypress and the neighboring
species. The main harmful genetic effect of such hybridization on
native species is the loss of both genetic diversity and the ability of
native populations to continue to persist due to potential loss of
locally adapted characteristics. The resulting hybrid taxa can also
reduce the growth of, or replace, native species and compete for
resources otherwise available (Vila et al. 2000, pp. 207-217).
We consider genetic introgression to be a low-level threat to the
Santa Cruz cypress because it is probably a concern for only two
populations. Genetic introgression has not been documented for Santa
Cruz cypress, but is a potential threat given the proximity of non-
native cypress and the ease with which cypress species hybridize.
However, introgression is a long-term process in itself, generally
taking many generations for significant population-level impacts to
occur. Given the long generation time of the species, genetic
introgression is currently considered a potential threat rather than an
imminent threat. See additional discussion in the ``Genetic
Introgression'' section of the Species Report (Service 2015, pp. 30-
31).

Vandalism and Unauthorized Recreational Activities

Vandalism and unauthorized recreational activities have been
documented to impact multiple Santa Cruz cypress populations and their
habitat. These activities result in construction of unauthorized trails
(such as those within the Majors Creek population at Wilder Creek State
Park) (CDPR 2000; K. Barry, Service, 2012, pers. obs.), which in turn
result in erosion (McGraw 2007, p. 22) and potentially prevention of
seedling establishment. Additionally, trails wear away substrate from
the base of mature cypress trees. Although vandalism and unauthorized
recreational activities are not considered to impact the populations
significantly at this time (considered a low-level threat because only
a small proportion of trees and habitat across the species' range are
affected by these activities), they remain a concern due to the
likelihood of increased inhabitants in the urban-wildland interface
where Santa Cruz cypress occurs. See additional discussion in the
``Vandalism and Unauthorized Recreational Activities'' section of the
Species Report (Service 2015, p. 33).

Existing Regulatory Mechanisms

Reclassifying Santa Cruz cypress from endangered to threatened
would not significantly change the protections afforded to this species
under the Act. Santa Cruz cypress conservation has been addressed in
some local, State, and Federal plans, laws, regulations, and policies.
Now that most of the trees reside in fully protected areas on State or
County park lands, the inadequacy of existing regulatory mechanisms is
considered a low-level threat to Santa Cruz cypress. The threat of
habitat alteration has been substantially reduced, and, therefore, the
concern regarding inadequate legal protections on the landscape scale
has been reduced. Although existing regulations have resulted in
conservation of Santa Cruz cypress habitat, inadequacy of existing
regulatory mechanisms is still considered a low-level threat because
the potential remains for destruction or alteration of Santa Cruz
cypresses and their habitat on private lands. However, the main concern
currently and into the future is the lack of ongoing management to
prevent senescence and ensure population persistence. If current Santa
Cruz cypress habitat becomes unfavorable to the species due to lack of
adequate management, Santa Cruz cypress may not persist even if the
land is sufficiently conserved. See additional discussion in the
``Legal Protection'' section of the Species Report (Service 2015, pp.
34-37).

Combination of Threats

The threat to the long-term persistence of Santa Cruz cypress is
compounded by multiple interacting factors, specifically: (1) The
alteration of

[[Page 8412]]

fire regimes and lack of species management; and (2) human activities,
nonnative species, and fire. With the prevalence of fire exclusion and
suppression near residential communities within the range of the
species, the opportunity for Santa Cruz cypress to regenerate in large
pulses following fire is reduced. This fire suppression coupled with
the lack of species-specific management is resulting in minimal
regeneration for the species as a whole, which could be exacerbated if
this situation continues into the future. The ability of land managers
to adequately maintain cypress populations on public lands is subject
to constraints and physical barriers, such as the difficulty or
inability of using fire as a management tool due to proximity to
development or because of air quality standards.
Additionally, human intrusion into previously undisturbed areas
contributes to colonization of nonnative plant species in the remote
areas of Santa Cruz cypress forests (see the ``Competition with
Nonnative Plant Species'' section of the Species Report (Service 2015,
pp. 31-33)). This activity exacerbates the likelihood for the creation
of open conditions (e.g., bike trails, road cuts, and firebreaks),
allowing nonnative plants to proliferate and compete with the cypress
for soil, nutrients, and light. If a wildfire is then introduced into
these new (open) conditions, nonnative species that compete with Santa
Cruz cypress could then easily spread. The presence or increase in
nonnative species can inhibit cypress seedlings by blocking the
sunlight they need to grow (McGraw 2007, p. 23). See ``Compounding
Threats'' section of the Species Report (Service 2015, pp. 37-38).

Overall Summary of Factors Affecting Santa Cruz Cypress

Impacts to the long-term persistence of Santa Cruz cypress
populations from alteration of the fire regime (Factors A and E)
remains a significant concern currently and in the future (i.e., at
least approximately 100 years, based on the potential lifespan of
individual Santa Cruz cypress trees per Lyons' (1988, pp. 2-39)
estimate and based on past fire interval (two to three documented fires
in two populations over the past 110 years)). Because the germination
and establishment of new seedlings depends either on natural fire or a
managed substitute (e.g., controlled burns or mechanical disturbance),
appropriate fire or disturbance regimes are needed to manage the
demographic profile of the five populations. Lack of fire or other
disturbance to promote germination and seedling establishment poses a
senescence risk to the stands and populations of Santa Cruz cypress
(Service 2015, p. 30). Without recruitment of new individuals, trees in
the current even-aged stands may become senescent (or no longer
reproductive) and no longer produce cones and seeds necessary for long-
term reproductive success and persistence of the populations (which has
been observed in Santa Cruz cypress populations by McGraw (2007, pp.
20-21)). While most of the populations have been protected through
acquisition of lands for conservation, no active management is
currently occurring to manage the demographic profile of the
populations. Research on suitable management methods has only begun
recently at Bonny Doon Ecological Reserve (McGraw 2011, entire); future
management of this population is expected to provide additional
understanding of conditions that would promote regeneration, thus
providing beneficial management recommendations that could be applied
to all populations.
Although the altered fire regime is identified as a high-level
impact to Santa Cruz cypress at this time, the level of impact does not
currently place the species in danger of extinction because of the
expected continued presence of the populations into the future based on
the lifespan of individuals and the current age structure, and the
recruitment (albeit minimal overall) that has been observed to date.
Because the majority of individuals in the populations are
reproductive, additional recruitment can be expected, although it
likely will not be at a level sufficient to sustain the populations
over the long term.
In addition to altered fire regime, other impacts to Santa Cruz
cypress and its habitat are currently occurring or potentially
occurring in the future, but to a lesser degree than the overall impact
from an altered fire regime. These include competition with nonnative,
invasive species (Factors A and E); climate change (Factor A); genetic
introgression (Factor E); and vandalism or unauthorized recreational
activities (Factors A and E). Nonnative plants are competing with Santa
Cruz cypress by invading open areas where cypress seedlings could
become established, thus competing for soil, nutrients, and light
(Service 2015, pp. 31-33). Climate change may cause vegetation shifts
and promote more frequent and larger stand removal wildfires under
which the species has not evolved (Service 2015, pp. 26-29). Genetic
introgression of Santa Cruz cypress with at least two different cypress
species could result in hybridization and result in the loss of Santa
Cruz cypress's competitive advantage in its preferred habitat (Service
2015, pp. 31-32). Vandalism and unauthorized recreational activities
may inhibit seedling establishment and increase erosion (Service 2015,
p. 33). Additionally, although substantial mechanisms are currently in
place to protect Santa Cruz cypress and its habitat, the existing
regulatory mechanisms are inadequate to fully protect the species from
the threats described above (Factor D). Based on our current analysis
and the current level of management being implemented, the remaining
impacts are expected to influence Santa Cruz cypress's habitat
suitability and its ability to reproduce and survive in the future.
In summary, impacts from development, agricultural conversion,
logging, and oil and gas development, which were considered imminent at
the time of listing, have been substantially reduced or ameliorated.
Other impacts identified at or since listing (i.e., alteration of fire
regime; competition with nonnative, invasive species; climate change;
genetic introgression; and vandalism, including unauthorized
recreational activities) continue to impact Santa Cruz cypress or are
expected to impact the species in the future. Although individually
these impacts (with the exception of altered fire regime) are of low or
moderate concern to the species, their cumulative impact can promote
and accelerate unnatural conditions (Service 2015, pp. 37-38). For
example, human intrusion into previously undisturbed areas contributes
to colonization of nonnative plant species in the remote areas of Santa
Cruz cypress forests, which in turn may result in increased wildfires
and potentially increased community concern for wildfire suppression
activities. These types of interactions could become a greater concern
to Santa Cruz cypress in the future if there is increased human
activity in cypress forests.
The high-level impact of an altered fire regime to Santa Cruz
cypress and its habitat is of greatest concern at this time. The threat
to long-term persistence of Santa Cruz cypress posed by this high-level
impact is exacerbated by the lack of species management, resulting in
continued effects to the age structure and demographic profile of the
species. Although operating on the species currently, the impacts from
an altered fire regime, either alone or in combination with the other
impacts

[[Page 8413]]

identified above, do not place the species at immediate risk of
extinction. Reproduction and recruitment is evident (although not at a
level sufficient for long-term persistence) based on recent data in at
least four populations (i.e., the portion of the Bonny Doon population
that burned in the 2008 Martin Fire, and at the Eagle Rock, Butano
Ridge, and Majors Creek populations) (Service 2015, p. 46). However, if
fire or other disturbance does not occur in the future to promote
germination and seedling establishment (whether through a natural fire
event or active management), senescence could result in a downward
population trend that is likely to place the species in danger of
extinction.

Distinguishing Threats for Both Cypress Varieties

As described in the proposed rule and Species Report (78 FR 54223;
September 3, 2013; Service 2015, pp. 7-8), recent taxonomic evaluations
of Hesperocyparis abramsiana identified two varieties: H. a. var.
butanoensis (Butano Ridge population) and H. a. var. abramsiana (Eagle
Rock, Bracken Brae, Bonny Doon, and Majors Creek populations) (Adams
and Bartel 2009, pp. 287-299). Therefore, the threats analysis provided
in the Species Report (Service 2015, entire) and summarized in this
document includes a separate evaluation for each of the five
populations, in part to distinguish the level of impact the current
threats have on the two separate varieties. The information summarized
below is evaluated and described in detail in the ``Discussion of
Threats to the Two Separate Varieties'' section of the Species Report
(Service 2015, pp. 38-40).
The Butano Ridge population (Hesperocyparis abramsiana var.
butanoensis) is primarily threatened by changes in the historical fire
regime and the impacts as a result of the changed fire regime (Factors
A and E). The population is located away from developed areas, but
because it is near a lumber operation, fire exclusion and suppression
activities that alter the fire regime are likely in the vicinity. Other
impacts identified at the time of listing are no longer impacting this
population or are no longer considered significant (e.g., logging, oil
and gas drilling), in large part due to this population now being fully
protected and managed within the boundaries of Pescadero Creek County
Park. Although this variety is not considered a separate species, its
status as a separate variety indicates its divergence from other
populations of the species. Further divergence, and potentially the
process of speciation, may continue through sustained reproductive
isolation from other Santa Cruz cypress populations. Additionally, this
is the only location for this variety, and it is composed of a single
stand, thus making it vulnerable to an impact such as disease if
exposed. However, at this time it is highly unlikely that potential
impacts such as development, disease, predation, and others (as
described in the Species Report (Service 2015, pp. 23-40)) would occur
at the Butano Ridge population. An altered fire regime is the main
concern present at this population, with potential concerns currently
or in the future related to competition with nonnative species (Factors
A and E) and climate change (Factor A).
Similar to the Butano Ridge population described above, the primary
impact to the Eagle Rock, Bracken Brae, Bonny Doon, and Majors Creek
populations (Hesperocyparis abramsiana var. abramsiana) is the
alteration of the fire regime (Factors A and E), which was identified
at the time of listing. This impact remains present at all populations
of the Santa Cruz cypress, although management actions at the Bonny
Doon Ecological Reserve have included some mechanical vegetation
removal in an attempt to reduce this impact (Service 2015, pp. 39-40).
Impacts from competition with nonnative species (Factors A and E) and
climate change (Factor A) also threaten the long-term persistence of
both varieties of Santa Cruz cypress (in addition to vandalism and
unauthorized recreational activities (Factors A and E), and genetic
introgression (Factor E) potentially impacting the H. a. var.
abramsiana populations), and there are no management actions proposed
to address these concerns. The existing regulatory mechanisms protect
the species from development activities but are inadequate to fully
protect the species from these other impacts (Factor D). Please see the
``Current Threats'' and ``Discussion of Threats to the Two Separate
Varieties'' sections of the Species Report for additional discussion
related to current or potential threats to these Santa Cruz cypress
populations (Service 2015, pp. 23-40).

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. A recovery plan for the Santa
Cruz cypress was developed in September 1998 (Service 1998, entire).
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.'' However, revisions to the list (adding, removing, or
reclassifying a species) must reflect determinations made in accordance
with sections 4(a)(1) and 4(b) of the Act. Section 4(a)(1) requires
that the Secretary determine whether a species is endangered or
threatened (or not) because of one or more of five threat factors.
Section 4(b) of the Act requires that the determination be made
``solely on the basis of the best scientific and commercial data
available.'' Therefore, recovery criteria should help indicate when we
would anticipate an analysis of the five threat factors under section
4(a)(1) to result in a determination that the species is no longer an
endangered species or threatened species because of any of the five
statutory factors.
Thus, while recovery plans provide important guidance to the
Service, States, and other partners on methods of minimizing threats to
listed species and measurable objectives against which to measure
progress towards recovery, they are not regulatory documents and cannot
substitute for the determinations and promulgation of regulations
required under section 4(a)(1) of the Act. A decision to revise the
status of or remove a species from the Federal List of Endangered and
Threatened Plants (50 CFR 17.12) is ultimately based on an analysis of
the best scientific and commercial data then 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.
The Recovery Plan states that Santa Cruz cypress can be
reclassified to threatened status when protection is secured for all
five populations and their habitat from the primary threats of logging,
agricultural conversion, and development (Service 1998, p. 30). This
criterion was intended to address the point at which imminent threats
to the species had been ameliorated so that the populations were no
longer in immediate risk of extirpation. Because of its limited range
and distribution, we determined that essentially all of the known
habitat is necessary to conserve the species. At the time the Recovery
Plan was prepared, we estimated that areal extent totaled 356 ac (144
ha). After more accurate mapping (McGraw 2007, entire), we now estimate
that areal

[[Page 8414]]

extent totals approximately 188 ac (76 ha) (Service 2015, p. 43).
Additionally, estimated abundance of individuals in all populations has
changed over time, from approximately 2,300 individuals at the time of
listing in 1987, to a current range of 33,000 to 44,000 individuals
(although the latter estimate is variable due to mortality and
regeneration following the 2008 Martin Fire that burned 520 ac (210 ha)
of land and a portion of the Bonny Doon population) (see Table 1 and
the Bonny Doon population discussion under the ``Population
Descriptions'' section of the Species Report (Service 2015, pp. 6, 15-
17)). It is important to note that the updated estimates for species
abundance and areal extent do not illustrate trends but rather improved
information about the species over time.
As explained in more detail in the Species Report (Service 2015, p.
43), three of five populations occur primarily or entirely on lands
that are being managed for conservation purposes, including the Butano
Ridge population at Pescadero Creek County Park, the Bonny Doon
population at Bonny Doon Ecological Reserve managed by the California
Department of Fish and Wildlife (CDFW), and the Eagle Rock population
at Big Basin State Park managed by the California Department of Parks
and Recreation (CDPR). A fourth population (Majors Creek) is primarily
on lands at Gray Whale Ranch State Park, with a small portion on
privately owned land. The fifth population (Bracken Brae) is entirely
on private lands owned by a conservation-oriented landowner; this land
is also designated by the County of Santa Cruz as environmentally
sensitive habitat, which places restrictions on most development.
Because four of the five populations, either wholly or primarily, occur
on park or reserve lands, most of the individuals in the Bonny Doon,
Butano Ridge, Majors Creek, and Eagle Rock populations are protected
against the threats identified as imminent (logging, agricultural
conversion, and development) at the time of listing and in the Recovery
Plan. Because the Bracken Brae population is being managed by a
conservation-oriented landowner and county restrictions are in place
that would restrict most development, development-related threats to
this population appear negligible. Therefore, we conclude that the
downlisting criterion has been substantially met.
The Recovery Plan also states that Santa Cruz cypress can be
delisted when all five populations are assured of long-term
reproductive success, with insurance against failure provided by the
availability of banked seed (Service 1998, p. 45). This criterion was
intended to address the point at which long-term threats to the
species' persistence had been addressed and its persistence ensured. As
explained in more detail in the Species Report (Service 2015, pp. 18-
20), Santa Cruz cypress requires fire or other disturbance for
germination of seeds and recruitment of new individuals into the
populations. As detailed above in the Summary of Biological Status and
Factors Affecting the Species section and in the Species Report
(Service 2015, pp. 23-25), alteration of fire regime and lack of
management are likely to significantly impact the long-term persistence
of the species. Additionally, only seed for the Bonny Doon, Majors
Creek, and Bracken Brae populations is stored in a conservation bank;
no seed has been banked for the Eagle Rock or Butano Ridge populations.
Therefore, based on our analysis of the best available information, we
conclude that the delisting criterion for the species has not been met.
In addition to the significant protections now afforded to Santa
Cruz cypress as outlined above, various studies have occurred since
development of the Recovery Plan that aid in our understanding of the
status of Santa Cruz cypress. For example:
Recent surveys indicate that four of the five stands of
Santa Cruz cypress contain a larger number of individuals than was
estimated at the time of listing and in the Recovery Plan (Service
2015, p. 43).
Although data indicate the majority of trees are
reproductive, many trees (as indicated by surveys conducted
specifically at Butano Ridge and Majors Creek populations) are even-
aged (occur in stands or populations with individuals all of
approximately the same age). Even-aged stands indicate that vigorous
recruitment (survival of seedlings to reproductive age and into the
adult population) is not evident (McGraw 2011, p. 26). In contrast,
vigorous recruitment would be indicated by stands or populations
including individuals of multiple sizes or age classes representing
various life stages of the species.
While seed production appears to be strong at each of the
sampled populations, recruitment, which depends more on extrinsic
factors such as the availability of appropriate habitat for seedling
survival, is more variable among stands even within a population.
These and other data that we have analyzed indicate that most
threats identified at listing and during the development of the
Recovery Plan are reduced in areas occupied by Santa Cruz cypress and
that the status of Santa Cruz cypress has improved, primarily due to
the habitat protection provided by CDFW, CDPR, the County of San Mateo,
and the County of Santa Cruz. However, threats associated with a lack
of habitat management and alterations of the fire regime continue to
impede the species' ability to recover.
Additional information on recovery and recovery plan implementation
are described in the ``Progress Toward Recovery'' section of the
Species Report (Service 2015, pp. 39-43).

Summary of Changes From the Proposed Rule

In the Species Report, we state ``Historical distribution of Santa
Cruz cypress beyond the five currently recognized populations is
unknown (Service 2015, p. 11).'' This should be corrected to say
``Historical distribution of Santa Cruz cypress beyond the range of
five currently recognized populations is unknown.'' As stated in the
Species Report, there are reports of a few scattered trees along Empire
Grade Road (Service 2015, p. 13) that are not believed to be
interbreeding with any of the five main populations. In addition to
this occurrence, there is a California Natural Diversity Database
(CNDDB 2014) record of a historical occurrence that was found near
Mount Hermon in the Santa Cruz Mountains (CNDDB element occurrence
index 72235). This record was not included in the previous report
because the exact area of collection was unspecified, and this
occurrence has never been reaffirmed after the initial collection was
made in 1940. The inclusion of this historical occurrence falls within
the currently recognized species range, and does not change the
existing information we have on this species.
We have not made any substantive changes in this final rule based
on the comments that were received during the comment period, but have
added or corrected text to clarify the information that was presented.
One peer reviewer provided new information stating that Santa Cruz
cypress populations are most likely experiencing a net reduction in
fire frequency relative to what they experienced prior to Euro-American
settlement, and it is unknown if regeneration of the populations can be
sustained in the absence of human intervention. This information was
incorporated into the Species Report for the species (Service 2015, pp.
18-20, 25).
On July 1, 2014, we published a final policy interpreting the
phrase ``significant portion of its range'' (79 FR

[[Page 8415]]

37578). We have revised our discussion of ``significant portion of its
range'' as it relates to the Santa Cruz cypress in the Determination
section below to be consistent with our new policy. Although the final
policy's approach for determining whether a ``significant portion of
its range'' analysis is required is different than that discussed in
the proposed rule (78 FR 54221), applying the policy did not affect the
outcome of the final status determination for the Santa Cruz cypress.

Summary of Comments and Recommendations

In the proposed rule published on September 3, 2013 (78 FR 54221),
we requested that all interested parties submit written comments on the
proposal by November 4, 2013. We also contacted appropriate Federal and
State agencies, scientific experts and organizations, and other
interested parties and invited them to comment on the proposal.
Newspaper notices inviting general public comment were published in the
local Santa Cruz Sentinel and San Mateo County Times. We did not
receive any requests for a public hearing.
During the comment period, we received four peer review comment
letters and one other comment on the proposed reclassification of Santa
Cruz cypress. All substantive information related to the
reclassification of the species or the taxonomic change for Santa Cruz
cypress provided during the comment period was fully considered in
development of this final determination and is addressed in the
responses to comments, below. All public and peer review comments are
available at www.regulations.gov (Docket No. FWS-R8-ES-2013-0092) and
from our Ventura Fish and Wildlife Office by request (see FOR FURTHER
INFORMATION CONTACT).

Peer Reviewer Comments

In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited expert opinion from six knowledgeable
individuals with scientific expertise that included familiarity with
Santa Cruz cypress and its habitat, the ecology of similar cypress
species, and the role of fire in cypress ecology and the Santa Cruz
mountains. We received responses from four of the peer reviewers.
We reviewed all comments received from the peer reviewers for
substantive issues and new information regarding the reclassification
of Santa Cruz cypress. Two peer reviewers supported our finding that
the Santa Cruz cypress warranted reclassification to threatened, and
provided no additional comments. Two other peer reviewers replied with
comments, and generally concurred with our methods, but disagreed about
the appropriateness of reclassifying the species without meeting the
recovery criteria identified in the Recovery Plan (Service 1998, p.
30). The two peer reviewers provided additional information,
clarifications, and recommendations on how to manage for the
conservation of Santa Cruz cypress and its habitat. All recommendations
have been acknowledged and will be considered during the development of
future management and recovery strategies.

Response to Peer Reviewer Comments

(1) Comment: Two peer reviewers stated that Santa Cruz cypress does
not meet the criteria for reclassification from endangered to
threatened found in the Recovery Plan for the Santa Cruz Cypress
(Service 1998, p. 30). Specifically, one reviewer commented that
protection has not been secured for all five populations and their
habitat from the threat of development, as stated in the criteria for
reclassification in the Recovery Plan. This reviewer identified the
Bracken Brae population as unprotected because it is owned by a private
landowner.
Our Response: In the Recovery and Recovery Plan Implementation
section above and in the ``Progress Toward Recovery'' section of the
Species Report (Service 2015, pp. 39-43), we acknowledge that all known
habitat is important to the conservation of the Santa Cruz cypress, and
that the Bracken Brae population is important for the recovery of the
species, and explain our rationale for why the recovery criterion has
been substantially met for downlisting. While the Bracken Brae
population is not in conservation ownership, county restrictions are in
place that would restrict development. As discussed above and further
in the next response, we conclude that development-related threats
appear negligible for this population. This situation, along with
protection of all or the majority of the other four populations on
State lands, leads us to conclude that the criterion to reclassify the
species to threatened has been substantially met.
Additionally, since the Recovery Plan criteria were developed, we
now know there are more individuals within all of the Santa Cruz
cypress populations than was known at the time of listing. The greater
number of individuals within each population, in combination with the
conservation of much of the habitat on public lands, suggests that this
species is no longer facing imminent destruction from the threats
identified in the Recovery Plan (i.e., logging, agricultural
conversion, and development). Thus, while the Recovery Plan provides
important guidance on the direction and strategy for recovery, and can
indicate when a rulemaking process may be initiated, the determination
to reclassify a species on the Federal List of Endangered and
Threatened Plants (50 CFR 17.12) is ultimately based on an analysis of
whether a species meets the definition of an endangered species or
threatened species. Please see the ``Progress Toward Recovery'' section
of the Species Report (Service 2015, pp. 39-43) and the Recovery and
Recovery Plan Implementation section above and in the proposed rule (78
FR 54221) for more detailed discussions of the Recovery Plan criteria.
(2) Comment: One peer reviewer did not agree that the threat of
land use conversion in the Bracken Brae population had been diminished
since the time of listing to a ``minor concern.'' This peer reviewer
specifically stated that the Bracken Brae population is not secured
from the threat of development or conversion because legal constraints
have not been placed on development of the land.
Our Response: The County of Santa Cruz has designated the area
where the Bracken Brae population occurs as an environmentally
sensitive habitat area which requires that this habitat be preserved
through County ordinance as part of the County's General Plan (Chapter
16.32.090(C)(1)(a) and (C)(2)(b)) (County of Santa Cruz 2012, entire).
Designated environmentally sensitive habitat, although not completely
secure from development activities, has certain specific development
restrictions that are intended to protect these areas and includes
restrictions specifically related to protecting Santa Cruz cypress
groves. In addition to the County restrictions, the species would still
remain listed as endangered by the State, and threatened by the Federal
Government, both of which offer protections for the species (when there
is a Federal nexus) and its habitat that are discussed in the ``Legal
Protection'' section of the Species Report (Service 2015, p. 34).
Although the Bracken Brae population does not have the same level
of habitat conservation as other Santa Cruz cypress populations, the
remaining County, State, and Federal protections will guide the future
use of the private land for the continued protection of the species.
Further, the land is currently owned by a conservation-oriented

[[Page 8416]]

landowner, and development is not anticipated. Therefore, we have
determined that the threat of land conversion for the Bracken Brae
population should still be classified as a minor concern compared to
other potential impacts. We also conclude that the intent of the
recovery criterion was to preserve the habitat from any imminent
threats (see Service 1998, pp. iii, 1, 29) and has been met.
(3) Comment: One peer reviewer stated that all of the Santa Cruz
cypress populations near developed areas were essentially unprotected
because development has an indirect impact on the ability of the
species to persist by altering the fire regime such that regeneration
is no longer possible at levels necessary to sustain populations.
Our Response: We agree that adjacent developed areas can have
indirect impacts on the alteration of the fire regime. In the Species
Report (Service 2015, p. 25), we discuss how either a longer or shorter
fire return interval can disrupt the ecology of the cypresses and be
detrimental to their long-term survival, and that fire-return intervals
are most likely to be disrupted near areas of residential or commercial
development. While we acknowledge that the populations near developed
areas are at a higher risk of a disrupted fire-return interval, we have
determined that the habitat is still protected from imminent
destruction and that the level of threat is commensurate to a
threatened rather than an endangered species.
(4) Comment: One peer reviewer commented that Santa Cruz cypress
populations are most likely experiencing a net reduction in fire
frequency relative to what they experienced prior to Euro-American
settlement, and it is unknown if regeneration of the populations can be
sustained in the absence of human intervention. The reviewer provided a
personal observation of how the absence of stand-replacing fires in a
similar cypress species (MacNab cypress [Hesperocyparis macnabiana])
can lead to the gradual decline of the population.
Our Response: See our response to comment (3) above for a
discussion and our evaluation of the impacts of fire ecology on Santa
Cruz cypress. We appreciated this new information based on the peer
reviewer's observation of a related species. Studies of closely related
species with similar life-history characteristics can offer insight
into the ecology of Santa Cruz cypress. Studies of similar species
(i.e., surrogate species) can bolster our knowledge of their life
history. This information builds upon our previous knowledge and
provides additional insight into the fire ecology necessary for Santa
Cruz cypress persistence. We consider this complementary biological and
ecological information and have included this information as an
addendum to the Species Report.

Comments from the State and Counties

Section 4(b)(5)(A)(ii) of the Act states, ``the Secretary shall . .
. give actual notice of the proposed regulation (including the complete
text of the regulation) to the State agency in each State in which the
species is believed to occur, and to each county or equivalent
jurisdiction in which the species is believed to occur, and invite the
comment of such agency, and each such jurisdiction, thereon.'' We
submitted the proposed regulation to the State of California but
received no formal comments from the State regarding the proposal.
Although formal comments were not received, we note that Santa Cruz
cypress is listed by the State as an endangered species; therefore, the
reclassification of the species from federally endangered to federally
threatened would likely have little or no effect on existing State
protections. We also provided notice to the Counties of San Mateo and
Santa Cruz at the time of the proposed rulemaking. We did not receive
any comments from the two counties.

Public Comments

We received one public comment letter during the comment period for
this rule.
(5) Comment: The commenter stated that Santa Cruz cypress should
remain at the highest level of protection ``because of climate change
and habitat loss.'' The commenter did not include any supporting
information or analyses regarding Santa Cruz cypress or the ecology of
the Santa Cruz area.
Response: We discuss both the effects of climate change and habitat
loss on Santa Cruz cypress in the Species Report (Service 2015, pp. 26-
29, 38). With respect to both of these impacts, the commenter did not
provide any new or additional supporting information that was specific
to the effects on Santa Cruz cypress which we have not already
evaluated. While we acknowledge that the effects of climate change and
habitat loss are still a concern for the species, we have determined
that the level of threat is commensurate to a threatened species rather
than an endangered species.
(6) Comment: The commenter expressed concern with the peer review
process, and questioned the bias of the peer review panel.
Response: In order to ensure the quality and credibility of the
scientific information we use to make decisions, we have implemented a
formal ``peer review'' process for listing and recovery documents, as
required according to our guidelines for peer review, which published
in the Federal Register on July 1, 1994 (59 FR 34270). We consult
experts to ensure that our decisions are based on sound science. The
selection of participants in a peer review is based on expertise, with
due consideration given to independence and potential conflicts of
interest. The peer reviewers for the Santa Cruz cypress were chosen
based on their expertise demonstrated by published research on western
hemisphere cypress taxonomy, population dynamics, serotiny (ecological
relationships of cone-bearing plants to fire), California fire regimes,
or the ecology of Santa Cruz area flora.

Determination

Section 4 of the Act (16 U.S.C. 1533), and its implementing
regulations at 50 CFR part 424, set forth the procedures for adding
species to the Federal Lists of Endangered and Threatened Wildlife and
Plants. An assessment of the need for a species' protection under the
Act is based on whether a species is in danger of extinction or likely
to become so because of any of five factors: (A) The present or
threatened destruction, modification, or curtailment of its habitat or
range; (B) overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence. As required by section 4(a)(1) of
the Act, we conducted a review of the status of this plant and assessed
the five factors to evaluate whether Santa Cruz cypress is in danger of
extinction or likely to become so in the foreseeable future throughout
all of its range.
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
faced by the Santa Cruz cypress. We reviewed information presented in
the 2011 petition, information available in our files and gathered
through our 90-day finding (77 FR 32922; June 24, 2012) in response to
this petition, and other available published and unpublished
information. We also consulted with species experts and land management
staff with CDFW, CDPR, the County of San Mateo, and the County of Santa
Cruz, who are actively managing for the conservation of Santa Cruz
cypress.

[[Page 8417]]

In considering what factors might constitute threats, we must look
beyond the mere exposure of the species to the factor to determine
whether the exposure causes actual impacts to the species. If there is
exposure to a factor, but no response, or only a positive response,
that factor is not a threat. If there is exposure and the species
responds negatively, the factor may be a threat and we then attempt to
determine how significant the threat is. If the threat is significant,
it may drive, or contribute to, the risk of extinction of the species
such that the species warrants listing as endangered or threatened as
those terms are defined by the Act. This does not necessarily require
empirical proof of a threat. The combination of exposure and some
corroborating evidence of how the species is likely impacted could
suffice. The mere identification of factors that could impact a species
negatively is not sufficient to compel a finding that listing is
appropriate; we require evidence that these factors are operative
threats that act on the species to the point that the species meets the
definition of endangered or threatened under the Act.
The Act defines an endangered species as any species that is ``in
danger of extinction throughout all or a significant portion of its
range'' and a threatened species as any species ``which is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range.'' We find that the Santa
Cruz cypress is not presently in danger of extinction throughout its
entire range based on the severity and immediacy of threats currently
impacting the species. As a result of recent information, we know that
there are a significantly larger number of Santa Cruz cypress
individuals than were known at the time of listing (Service 2009, p.
13; Service 2015, p. 45) and that there is significant conservation of
lands that support the populations. Significant impacts at the time of
listing that could have resulted in the extirpation of all or parts of
populations have been eliminated or reduced since listing. We conclude
that the previously recognized impacts to Santa Cruz cypress from
present or threatened destruction, modification, or curtailment of its
habitat or range (specifically, residential development, agricultural
conversion, logging, and oil and gas drilling) (Factor A);
overutilization for commercial, recreational, scientific, or
educational purposes (Factor B); disease or predation (Factor C); and
other natural or human-made factors affecting its continued existence
(specifically, reproductive isolation) (Factor E) do not rise to a
level of significance, either individually or in combination, such that
the species is currently in danger of extinction.
However, alteration of the fire regime (Factors A and E) has the
potential to disrupt the long-term persistence of the species across
its entire range (resulting in the species potentially facing a
senescence risk in the future) if fire continues to be excluded or
suppressed near these populations. At least four populations of Santa
Cruz cypress contain some proportion of reproductive individuals and
also exhibit some level of recruitment (the portion of Bonny Doon
population that burned in the 2008 Martin Fire, and the Eagle Rock,
Butano Ridge, and Majors Creek populations). However, without fire or
other appropriate disturbance to simulate fire, we expect the level of
reproduction and recruitment to decrease as existing trees become
senescent. Given the potential lifespan of the Santa Cruz cypress of
approximately 100 years, we would expect to see population declines
over this timeframe as a result of mortality of currently existing
trees, and lack of replacement due to low recruitment and declining
reproduction, leading eventually to the species becoming in danger of
extinction in the future.
Santa Cruz cypress also will continue to be impacted by competition
with nonnative, invasive species (Factors A and E); genetic
introgression (Factor E); vandalism and unauthorized recreational
activities (Factors A and E); and the effects of climate change (Factor
A and E). Additionally, the existing regulatory mechanisms are
inadequate to fully protect the species from the threats listed above
(Factor D). However, the severity and magnitude of threats, both
individually and in combination, and the likelihood that any one event
would affect all populations is significantly reduced as a result of
the removal of multiple threats, the reduced impact of most remaining
threats, and the extensive amount of conservation occurring throughout
the range of the species (including, but not limited to, the extensive
preservation of occupied lands in perpetuity and development of
management plans or guidance within at least one population (Bonny
Doon)).
In conclusion, after review of the best available scientific and
commercial information pertaining to the species and its habitat, we
have determined that the ongoing threats are not of sufficient
imminence, intensity, or magnitude to indicate that Santa Cruz cypress
is presently in danger of extinction throughout all its range. Although
threats to Santa Cruz cypress still exist and will continue into the
foreseeable future, the implementation of conservation measures or
regulatory actions has greatly reduced the imminence and severity of
threats to the Santa Cruz cypress and its habitat. All five populations
are primarily threatened by changes in the historical fire regime.
Additionally, threats from competition with nonnative species and
climate change exist for all populations. Our evaluation of the best
available information indicates that the overall level of threats is
not significantly different at any of these populations (Service 2015,
pp. 24-41), with the primary current threat to all populations being
alteration of fire regime. We, therefore, conclude that Santa Cruz
cypress is not currently in danger of extinction, but is threatened
with becoming an endangered species within the foreseeable future
throughout all of its range.
Because we have determined that Santa Cruz cypress is likely to
become endangered in the foreseeable future throughout all of its
range, no portion of its range can be ``significant'' for purposes of
the definitions of ``endangered species'' and ``threatened species.''
See the Service's final policy interpreting the phrase ``Significant
Portion of Its Range'' (79 FR 37578; July 1, 2014). Therefore, on the
basis of the best available scientific and commercial information, we
find that the Santa Cruz cypress now meets the definition of a
threatened species (i.e., is likely to become an endangered species
within the foreseeable future throughout all of its range) and are
reclassifying the Santa Cruz cypress from an endangered species to a
threatened species in accordance with sections 3(20) and 4(a)(1) of the
Act.

Effects of This Rule

This rule will revise 50 CFR 17.12(h) to reclassify Santa Cruz
cypress from endangered to threatened on the List of Endangered and
Threatened Plants. However, this reclassification does not
significantly change the protections afforded this species under the
Act. Pursuant to section 7 of the Act, all Federal agencies must ensure
that any actions they authorize, fund, or carry out are not likely to
jeopardize the continued existence of Santa Cruz cypress. Whenever a
species is listed as threatened, the Act allows promulgation of special
rules under section 4(d) that modify the standard protections for
threatened species found under section 9 of the Act and Service
regulations at

[[Page 8418]]

50 CFR 17.31 (for wildlife) and 17.71 (for plants), when it is deemed
necessary and advisable to provide for the conservation of the species.
No special section 4(d) rules are proposed, or anticipated to be
proposed, for Santa Cruz cypress, because there is currently no
conservation need to do so for this species. Recovery actions directed
at Santa Cruz cypress will continue to be implemented, as funding
allows, as outlined in the Recovery Plan for this species (Service
1998, entire).

Required Determinations

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. No tribal lands are within the range
of the Santa Cruz cypress.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

We determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), need not be
prepared in connection with regulations adopted pursuant to Section
4(a) of 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).

References Cited

A complete list of all references cited in this final rule is
available on the Internet at http://www.regulations.gov
under Docket
No. FWS-R8-ES-2013-0092 or upon request from the Field Supervisor,
Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Authors

The primary authors of this final rule are employees of the Pacific
Southwest Regional Office in Sacramento, California, in coordination
with employees of the Ventura Fish and Wildlife Office in Ventura,
California.

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.

Regulation Promulgation

Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as follows:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245; unless
otherwise noted.

0
2. Amend Sec. 17.12(h) as follows:
0
a. By removing the entry for ``Cupressus abramsiana'' under CONIFERS,
and
0
b. By adding an entry for ``Hesperocyparis abramsiana'' under CONIFERS
to read as follows:

Sec. 17.12 Endangered and threatened plants.

* * * * *
(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
-------------------------------------------------------- Historic
range Family Status When listed Critical
Special
Scientific name Common name
habitat
rules
--------------------------------------------------------------------------------------------------------------------------------------------------------

* *
* * * * *
Conifers

* *
* * * * *
Hesperocyparis abramsiana........ Santa Cruz cypress.. U.S.A.
(CA)........ Cupressaceae....... T 252
NA NA

* *
* * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

*
* * * *

Dated: February 1, 2016.
Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2016-03296 Filed 2-18-16; 8:45 am]
BILLING CODE 4333-15-P