Endangered and Threatened Wildlife and Plants; Threatened Species Status for the Wright's Marsh Thistle (Cirsium wrightii) With a 4(d) Rule and Designation of Critical Habitat, 61460-61498 [2020-19337]
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Federal Register / Vol. 85, No. 189 / Tuesday, September 29, 2020 / Proposed Rules
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R2–ES–2018–0071;
FF09E21000 FXES11110900000 201]
RIN 1018–BC34
Endangered and Threatened Wildlife
and Plants; Threatened Species Status
for the Wright’s Marsh Thistle (Cirsium
wrightii) With a 4(d) Rule and
Designation of Critical Habitat
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), propose to
list the Wright’s marsh thistle (Cirsium
wrightii), a plant species from New
Mexico, as a threatened species and
designate critical habitat under the
Endangered Species Act of 1973, as
amended (Act). After a review of the
best available scientific and commercial
information, we find that listing the
species is warranted. Accordingly, we
propose to list the Wright’s marsh
thistle as a threatened species with a
rule issued under section 4(d) of the Act
(‘‘4(d) rule’’). If we finalize this rule as
proposed, it would add this species to
the List of Endangered and Threatened
Plants and extend the Act’s protections
to the species. We also propose to
designate critical habitat for Wright’s
marsh thistle under the Act. The
proposed critical habitat totals
approximately 64.3 hectares (ha) (159
acres (ac)) in Chaves, Eddy, Guadalupe,
Otero, and Socorro Counties, New
Mexico. We also announce the
availability of a draft economic analysis
of the proposed designation of critical
habitat for Wright’s marsh thistle.
DATES: We will accept comments
received or postmarked on or before
November 30, 2020. Comments
submitted electronically using the
Federal eRulemaking Portal (see
ADDRESSES, below) must be received by
11:59 p.m. Eastern Time on the closing
date. We must receive requests for
public hearings, in writing, at the
address shown in FOR FURTHER
INFORMATION CONTACT by November 13,
2020.
ADDRESSES: You may submit comments
by one of the following methods:
(1) Electronically: Go to the Federal
eRulemaking Portal: https://
www.regulations.gov. In the Search box,
enter FWS–R2–ES–2018–0071, which is
the docket number for this rulemaking.
Then, click on the Search button. On the
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SUMMARY:
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resulting page, in the Search panel on
the left side of the screen, under the
Document Type heading, click on the
Proposed Rule box to locate this
document. You may submit a comment
by clicking on ‘‘Comment Now!’’
(2) By hard copy: Submit by U.S. mail
to: Public Comments Processing, Attn:
FWS–R2–ES–2018–0071; U.S. Fish and
Wildlife Service, MS: JAO/1N, 5275
Leesburg Pike, Falls Church, VA 22041–
3803.
We request that you send comments
only by the methods described above.
We will post all comments on https://
www.regulations.gov. This generally
means that we will post any personal
information you provide us (see
Information Requested, below, for more
information).
Availability of supporting materials:
For the critical habitat designation, the
coordinates or plot points or both from
which the maps are generated are
included in the administrative record
and are available at the New Mexico
Ecological Services website https://
www.fws.gov/southwest/es/NewMexico/
index.cfm and at https://
www.regulations.gov under Docket No.
FWS–R2–ES–2018–0071. Any
additional tools or supporting
information that we may develop for the
critical habitat designation will also be
available at the Service website set out
above, and may also be included in the
preamble and/or at https://
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Shawn Sartorius, Field Supervisor, New
Mexico Ecological Services Field Office,
2105 Osuna Rd. NE, Albuquerque, NM
87113; telephone 505–346–2525;
facsimile 505–346–2542. Persons who
use a telecommunications device for the
deaf (TDD) may call the Federal Relay
Service at 800–877–8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under
the Act, if a species is determined to be
an endangered or threatened species
throughout all or a significant portion of
its range, we are required to promptly
publish a proposal in the Federal
Register and make a determination on
our proposal within 1 year. Critical
habitat shall be designated, to the
maximum extent prudent and
determinable, for any species
determined to be an endangered or
threatened species under the Act.
Listing a species as an endangered or
threatened species and designations and
revisions of critical habitat can only be
completed by issuing a rule.
What this document does.
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• Proposes to list Wright’s marsh
thistle as a threatened species. Wright’s
marsh thistle is a candidate species for
which we have on file sufficient
information on biological vulnerability
and threats to support preparation of a
listing proposal, but for which
development of a listing rule has been
precluded by other higher priority
listing activities. This proposed rule
reassesses all available information
regarding the status of and threats to
this species.
• Proposes a rule issued under
section 4(d) of the Act (‘‘4(d) rule’’) that
would make it unlawful to remove and
reduce to possession the species from
areas under Federal jurisdiction;
maliciously damage or destroy the
species on areas under Federal
jurisdiction; or remove, cut, dig up, or
damage or destroy the species on any
other area in knowing violation of any
law or regulation of any State or in the
course of any violation of a State
criminal trespass law. Nothing in the
proposed 4(d) rule affects in any way
other provisions of the Act, such as the
designation of critical habitat under
section 4, the recovery planning
provisions of section 4(f), and the
consultation requirements under section
7.
• Proposes to designate critical
habitat for the species on approximately
64.3 ha (159 ac) in Chaves, Eddy,
Guadalupe, Otero, and Socorro
Counties, New Mexico.
The basis for our action. Under the
Act, we can determine that a species is
an endangered or threatened species
based on any of five factors: (A) The
present or threatened destruction,
modification, or curtailment of its
habitat or range; (B) overutilization for
commercial, recreational, scientific, or
educational purposes; (C) disease or
predation; (D) the inadequacy of
existing regulatory mechanisms; or (E)
other natural or manmade factors
affecting its continued existence. We
have determined that stressors related to
Factors A and E are causing Wright’s
marsh thistle to be threatened.
Section 4(a)(3) of the Act requires the
Secretary of the Interior (Secretary) to
designate critical habitat concurrent
with listing to the maximum extent
prudent and determinable. Section
4(b)(2) of the Act states that the
Secretary must make the designation on
the basis of the best scientific data
available and after taking into
consideration the economic impact, the
impact on national security, and any
other relevant impacts of specifying any
particular area as critical habitat.
Section 3(5)(A) of the Act defines
critical habitat as (i) the specific areas
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within the geographical area occupied
by the species, at the time it is listed,
on which are found those physical or
biological features (I) essential to the
conservation of the species and (II)
which may require special management
considerations or protections; and (ii)
specific areas outside the geographical
area occupied by the species at the time
it is listed, upon a determination by the
Secretary that such areas are essential
for the conservation of the species.
Peer review. In accordance with our
joint policy on peer review published in
the Federal Register on July 1, 1994 (59
FR 34270), and our August 22, 2016,
memorandum updating and clarifying
the role of peer review of listing actions
under the Act, we sought the expert
opinions of three appropriate and
independent specialists during the
analysis of the status of the species and
the creation of the SSA report (USFWS
2017). The purpose of peer review was
to ensure that our listing determination
and critical habitat designation are
based on scientifically sound data,
assumptions, and analyses. The peer
reviewers have expertise in Wright’s
marsh thistle’s biology, life history,
habitat, and range, and in the physical
or biological features of its habitat. One
of three peer reviewers provided
comments on the species status
assessment, which were integrated into
the SSA report; these comments will be
available along with other public
comments in the docket for this
proposed rule (see https://
www.regulations.gov, Docket No. FWS–
R2–ES–2018–0071).
Because we will consider all
comments and information we receive
during the comment period on this
proposed rule, our final determinations
may differ from this proposal. Based on
the new information we receive (and
any comments on that new
information), we may conclude that the
species is endangered instead of
threatened, or we may conclude that the
species does not warrant listing as either
an endangered species or a threatened
species. Such final decisions would be
a logical outgrowth of this proposal, as
long as we: (1) Base the decisions on the
best scientific and commercial data
available after considering all of the
relevant factors; (2) do not rely on
factors Congress has not intended us to
consider; and (3) articulate a rational
connection between the facts found and
the conclusions made, including why
we changed our conclusion.
Information Requested
We intend that any final action
resulting from this proposed rule will be
based on the best scientific and
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commercial data available and be as
accurate and as effective as possible.
Therefore, we request comments or
information from other concerned
governmental agencies, Native
American tribes, the scientific
community, industry, or any other
interested parties concerning this
proposed rule. We particularly seek
comments concerning:
(1) Wright’s marsh thistle’s biology,
range, and population trends, including:
(a) Biological or ecological
requirements of the species, including
habitat requirements for all life cycle
stages, seed production and dispersal,
and seed germination and growth;
(b) Genetics and taxonomy;
(c) Historical and current range,
including distribution patterns;
(d) Historical and current population
levels, and current and projected trends;
and
(e) Past and ongoing conservation
measures for the species, its habitat, or
both.
(2) Factors that may affect the
continued existence of the species,
which may include habitat modification
or destruction, overutilization, disease,
predation, the inadequacy of existing
regulatory mechanisms, or other natural
or manmade factors.
(3) Biological, commercial trade, or
other relevant data concerning any
threats (or lack thereof) to this species
and existing regulations that may be
addressing those threats.
(4) Additional information concerning
the historical and current status, range,
distribution, and population size of this
species, including the locations of any
additional populations of this species.
(5) Information on regulations that are
necessary and advisable to provide for
the conservation of the Wright’s marsh
thistle and that the Service can consider
in developing a 4(d) rule for the species.
In particular, information concerning
the extent to which we should include
any of the section 9 prohibitions in the
4(d) rule or whether any other forms of
take should be excepted from the
prohibitions in the 4(d) rule.
(6) The reasons why we should or
should not designate habitat as ‘‘critical
habitat’’ under section 4 of the Act (16
U.S.C. 1531 et seq.), including
information to inform the following
factors such that a designation of critical
habitat may be determined to be not
prudent:
(a) The species is threatened by taking
or other human activity and
identification of critical habitat can be
expected to increase the degree of such
threat to the species;
(b) The present or threatened
destruction, modification, or
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curtailment of a species’ habitat or range
is not a threat to the species, or threats
to the species’ habitat stem solely from
causes that cannot be addressed through
management actions resulting from
consultations under section 7(a)(2) of
the Act;
(c) Areas within the jurisdiction of the
United States provide no more than
negligible conservation value, if any, for
a species occurring primarily outside
the jurisdiction of the United States;
(d) No areas meet the definition of
critical habitat.
(7) Specific information on:
(a) The amount and distribution of
Wright’s marsh thistle habitat;
(b) What areas, that were occupied at
the time of listing and that contain the
physical or biological features essential
to the conservation of the species,
should be included in the critical
habitat designation and why;
(c) Special management
considerations or protections that may
be needed in the critical habitat areas
we are proposing, including managing
for the potential effects of climate
change; and
(d) What areas not occupied at the
time of listing that are essential for the
conservation of the species. We
particularly seek comments:
(i) Regarding whether occupied areas
are inadequate for the conservation of
the species; and,
(ii) Providing specific information
that supports the determination that
unoccupied areas will, with reasonable
certainty, contribute to the conservation
of the species and, contain at least one
physical or biological feature essential
to the conservation of the species.
(8) Land use designations and current
or planned activities in the subject areas
and their possible impacts on proposed
critical habitat.
(9) Any probable economic, national
security, or other relevant impacts of
designating any area as critical habitat
that may be included in the final
designation, and the related benefits of
including or excluding areas.
(10) Information on the extent to
which the description of probable
economic impacts in the draft economic
analysis is a reasonable estimate of the
likely economic impacts.
(11) Whether any specific areas we are
proposing for critical habitat
designation should be considered for
exclusion under section 4(b)(2) of the
Act, and whether the benefits of
potentially excluding any specific area
outweigh the benefits of including that
area under section 4(b)(2) of the Act.
(12) Whether we could improve or
modify our approach to designating
critical habitat in any way to provide for
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greater public participation and
understanding, or to better
accommodate public concerns and
comments.
Please include sufficient information
with your submission (such as scientific
journal articles or other publications) to
allow us to verify any scientific or
commercial information you include.
Please note that submissions merely
stating support for, or opposition to, the
action under consideration without
providing supporting information,
although noted, will not be considered
in making a determination, as section
4(b)(1)(A) of the Act directs that
determinations as to whether any
species is an endangered or a threatened
species must be made ‘‘solely on the
basis of the best scientific and
commercial data available.’’
You may submit your comments and
materials concerning this proposed rule
by one of the methods listed in
ADDRESSES. We request that you send
comments only by the methods
described in ADDRESSES.
If you submit information via https://
www.regulations.gov, your entire
submission—including any personal
identifying information—will be posted
on the website. If your submission is
made via a hardcopy that includes
personal identifying information, you
may request at the top of your document
that we withhold this information from
public review. However, we cannot
guarantee that we will be able to do so.
We will post all hardcopy submissions
on https://www.regulations.gov.
Comments and materials we receive,
as well as supporting documentation we
used in preparing this proposed rule,
will be available for public inspection
on https://www.regulations.gov.
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Public Hearing
Section 4(b)(5) of the Act provides for
a public hearing on this proposal, if
requested. Requests must be received by
the date specified in DATES. Such
requests must be sent to the address
shown in FOR FURTHER INFORMATION
CONTACT. We will schedule a public
hearing on this proposal, if requested,
and announce the date, time, and place
of the hearing, as well as how to obtain
reasonable accommodations, in the
Federal Register and local newspapers
at least 15 days before the hearing. For
the immediate future, we will provide
these public hearings using webinars
that will be announced on the Service’s
website, in addition to the Federal
Register. The use of these virtual public
hearings is consistent with our
regulation at 50 CFR 424.16(c)(3).
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Previous Federal Actions
On October 15, 2008, we received a
petition from WildEarth Guardians
requesting that we list Wright’s marsh
thistle as an endangered or threatened
species under the Act. Additionally, the
petitioner requested that critical habitat
be designated concurrent with the
listing of Wright’s marsh thistle (thistle).
On September 10, 2009, we published a
90-day finding in the Federal Register
(74 FR 46542) that the petition
presented substantial information that
listing Wright’s marsh thistle may be
warranted. The 90-day finding stated
that the petition provided substantial
information indicating that listing
Wright’s marsh thistle may be
warranted. At that time, we initiated a
status review of the species.
On February 11, 2010, WildEarth
Guardians filed suit against the Service
for failure to issue a 12-month finding
on the petition (WildEarth Guardians v.
Salazar, No. 10–cv–00122 BRB–DJS
(D.N.M.)). Under a stipulated settlement
agreement, the 12-month finding was
due to the Federal Register by October
31, 2010. On November 4, 2010, after
review of all available scientific and
commercial information, we published a
12-month petition finding (75 FR
67925), in which we found that listing
Wright’s marsh thistle as endangered or
threatened throughout its range is
warranted, but that listing of the thistle
was precluded by higher priority actions
to amend the Lists of Endangered and
Threatened Wildlife and Plants. As a
result of the 12-month finding, we
added Wright’s marsh thistle to our
candidate species list, with a listing
priority number of 8, indicating that the
thistle faced imminent threats that were
of moderate magnitude. Thereafter, we
reassessed the status of the species
annually and determined that listing the
thistle remained warranted but was
precluded by higher priority activities
under the Act (see 77 FR 69994,
November 21, 2012; 78 FR 70104,
November 22, 2013; 79 FR 72450,
December 5, 2014; 80 FR 80584,
December 24, 2015; 81 FR 87246,
December 2, 2016).
Supporting Documents
A species status assessment (SSA)
team prepared an SSA report for the
Wright’s marsh thistle. The SSA team
was composed of Service biologists, in
consultation with other species experts.
The SSA report represents a
compilation of the best scientific and
commercial data available concerning
the status of the species, including the
impacts of past, present, and future
factors (both negative and beneficial)
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affecting the species. The Service sent
the SSA report to 3 independent peer
reviewers and received 1 response.
I. Proposed Listing Determination
Background
Species Description
Wright’s marsh thistle (Gray 1853, p.
101), a member of the Asteraceae
(sunflower) family, produces a 0.9- to
2.4-meter (m) (3- to 8-foot (ft)) single
stalk covered with succulent leaves.
There are two regional varieties of this
species. The more eastern populations
in the Pecos River valley of New Mexico
have pink flowers and dark green foliage
with higher plant height, while the more
western and southern populations in
New Mexico (and the previous
populations in Arizona and Mexico)
have white or pale pink flowers and
pale green foliage (Sivinski 2011, pp.
27–28). The differences serve as
evidence of ecological adaptability
within the species, and we believe these
differences represent genetic diversity
between the eastern and western
populations.
Life History
Depending on local environmental
conditions, Wright’s marsh thistle can
display life-history traits of a biennial (a
plant completing development in 2
years, flowering in its second year) or a
weak monocarpic perennial (a plant that
flowers, sets seed, and then dies). Cross
pollination is achieved by insect
pollinators, primarily bees. Like other
species in the genus Cirsium, Wright’s
marsh thistle produces numerous seeds
per flowering plant. After germination,
seedlings develop into an intermediate
rosette form for most of a year or longer
before bolting (producing a stem) and
growing into the mature, flowering
plant. It does not reproduce vegetatively
(asexually from parent plant). In order
to progress through its life cycle, the
thistle requires adequate soil alkalinity,
water availability for permanent root
saturation, and access to full sunlight.
Specifically, seeds require watersaturated soils and access to fairly direct
sunlight for germination. Rosettes also
require water-saturated soils and access
to fairly direct sunlight in order to grow
into a mature plant. Mature plants must
also maintain permanent root saturation
via water-saturated soils and tend to
thrive better in full sunlight. For more
details of the biology and life history of
Wright’s marsh thistle, please refer to
chapter 2 of the SSA report (USFWS
2017).
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Habitat and Distribution
Wright’s marsh thistle is a rare
wetland species that grows in marshy
habitats with year-round, watersaturated soils, at elevations between
1,150 and 2,390 m (3,450 and 7,850 ft)
in elevation (Sivinski 1996, p. 1; 2005,
pp. 3–4). Wright’s marsh thistle is an
obligate of seeps, springs, and wetlands
that have saturated soils with surface or
subsurface water flow (Sivinski 1996, p.
1; USFWS 1998, p. 2; Worthington 2002,
p. 2; NMRPTC 2009, p. 1). Within those
spring and seep areas, it is usually
associated with alkaline soils (Sivinski
2005, p. 3).
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Historical Range
Wright’s marsh thistle was
historically known to occur in Arizona
and New Mexico in the United States,
and Chihuahua and Sonora in Mexico
(Sivinski 2012, p. 2). The single location
in Arizona was a historical 1851
collection from San Bernardino Cienega,
which straddles the international border
with Mexico, and no longer has suitable
wetland habitat on the Arizona side of
the border (Baker 2011, p. 7). There
were 10 historical occurrences in New
Mexico; however, in a recent search
effort at one of the sites (Lake County),
the thistle was not found (Sivinski 2011,
p. 40), and another of the 10 records
(Rattlesnake Springs, Eddy County) is
now thought to be a hybrid between
Wright’s marsh thistle and the Texas
thistle (C. texanum) (NMRPTC 2009, p.
2). Reports of Wright’s marsh thistle
from Texas were common (Keil 2006, p.
131; Sivinski 1996, pp. 2–4), but in
subsequent examinations of Texas
specimens purporting to be Wright’s
marsh thistle, the specimens were found
to be Texas thistle or other Cirsium
species (75 FR 67928; November 4,
2010).
The status of the Wright’s marsh
thistle in Mexico is presumed
extirpated. There have been few verified
historical collections, and the most
recent site visit to Fronteras, Mexico,
and Cerro Angostura, Mexico, indicated
that the habitat had been mostly dried
out and is no longer suitable (Sivinski
2017, entire).
Therefore, Wright’s marsh thistle has
been extirpated from all previously
known locations in Arizona, two
historical locations in New Mexico, and
all known locations in Mexico, and it
was misidentified and likely not ever
present in Texas.
Current Range
In New Mexico, eight general
confirmed locations of Wright’s marsh
thistle cover an area of approximately
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43 ha (106 ac): Santa Rosa, in
Guadalupe County; Bitter Lake National
Wildlife Refuge (NWR), in Chaves
County; Blue Spring, in Eddy County;
La Luz Canyon, Karr/Haynes Canyon,
Silver Springs, and Tularosa Creek, in
Otero County; and Alamosa Creek, in
Socorro County (Bridge 2001, p. 1;
Sivinski and Bleakly 2004, p. 2;
NMRPTC 2009, p. 1; Sivinski 1994, p.
1; Sivinski 1996, p. 2; Sivinski 2005, p.
1, 3–5; Sivinski 2009; USFWS 1998, p.
1; Worthington 2002, p. 1–3). In Otero
County, the Sacramento Mountains have
four unique populations of the species
clustered within about 16 kilometers
(km) (10 miles (mi)) of each other on the
west slope of the mountains. The
remaining four localities are widely
disjunct, separated from the Sacramento
localities by about 120 to 225 km (75 to
140 mi) and from each other by about
120 to 345 km (75 to 215 mi). In the
Sacramento Mountains, two of these
four localities occur on the Lincoln
National Forest, one locality is on
private land, and the remaining locality
is on the Mescalero Apache Reservation.
In the Pecos River Valley, one locality
is on public lands on Bitter Lake NWR;
one is on private land near Blue Springs
and the Black River; and one is in the
vicinity of Santa Rosa on private,
municipal, and State lands. The
remaining locality is on private land on
Alamosa Creek, Socorro County.
Localities vary in relative population
size from fewer than 20 individuals
covering only about 0.02 ha (0.03 ac) at
the Silver Springs locality (Sivinski
2012, p. 21), to several thousand
individuals on Bitter Lake NWR,
covering almost 9.3 ha (23 ac).
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533)
and its implementing regulations (50
CFR part 424) set forth the procedures
for determining whether a species is an
‘‘endangered species’’ or a ‘‘threatened
species.’’ The Act defines an
endangered species as a species that is
‘‘in danger of extinction throughout all
or a significant portion of its range,’’ and
a threatened species as a species that is
‘‘likely to become an endangered
species within the foreseeable future
throughout all or a significant portion of
its range.’’ The Act requires that we
determine whether any species is an
‘‘endangered species’’ or a ‘‘threatened
species’’ because of any of the following
factors:
(A) The present or threatened
destruction, modification, or
curtailment of its habitat or range;
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(B) Overutilization for commercial,
recreational, scientific, or educational
purposes;
(C) Disease or predation;
(D) The inadequacy of existing
regulatory mechanisms; or
(E) Other natural or manmade factors
affecting its continued existence.
These factors represent broad
categories of natural or human-caused
actions or conditions that could have an
effect on a species’ continued existence.
In evaluating these actions and
conditions, we look for those that may
have a negative effect on individuals of
the species, as well as other actions or
conditions that may ameliorate any
negative effects or may have positive
effects.
We use the term ‘‘threat’’ to refer in
general to actions or conditions that are
known to or are reasonably likely to
negatively affect individuals of a
species. The term ‘‘threat’’ includes
actions or conditions that have a direct
impact on individuals (direct impacts),
as well as those that affect individuals
through alteration of their habitat or
required resources (stressors). The term
‘‘threat’’ may encompass—either
together or separately—the source of the
action or condition or the action or
condition itself.
However, the mere identification of
any threat(s) does not necessarily mean
that the species meets the statutory
definition of an ‘‘endangered species’’ or
a ‘‘threatened species.’’ In determining
whether a species meets either
definition, we must evaluate all
identified threats by considering the
expected response by the species, and
the effects of the threats—in light of
those actions and conditions that will
ameliorate the threats—on an
individual, population, and species
level. We evaluate each threat and its
expected effects on the species, then
analyze the cumulative effect of all of
the threats on the species as a whole.
We also consider the cumulative effect
of the threats in light of those actions
and conditions that will have positive
effects on the species, such as any
existing regulatory mechanisms or
conservation efforts. The Secretary
determines whether the species meets
the definition of an ‘‘endangered
species’’ or a ‘‘threatened species’’ only
after conducting this cumulative
analysis and describing the expected
effect on the species now and in the
foreseeable future.
The Act does not define the term
‘‘foreseeable future,’’ which appears in
the statutory definition of ‘‘threatened
species.’’ Our implementing regulations
at 50 CFR 424.11(d) set forth a
framework for evaluating the foreseeable
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future on a case-by-case basis. The term
‘‘foreseeable future’’ extends only so far
into the future as the Services can
reasonably determine that both the
future threats and the species’ responses
to those threats are likely. In other
words, the foreseeable future is the
period of time in which we can make
reliable predictions. ‘‘Reliable’’ does not
mean ‘‘certain’’; it means sufficient to
provide a reasonable degree of
confidence in the prediction. Thus, a
prediction is reliable if it is reasonable
to depend on it when making decisions.
It is not always possible or necessary
to define foreseeable future as a
particular number of years. Analysis of
the foreseeable future uses the best
scientific and commercial data available
and should consider the timeframes
applicable to the relevant threats and to
the species’ likely responses to those
threats in view of its life-history
characteristics. Data that are typically
relevant to assessing the species’
biological response include speciesspecific factors such as lifespan,
reproductive rates or productivity,
certain behaviors, and other
demographic factors.
Analytical Framework
The SSA report for Wright’s marsh
thistle (USFWS 2017) documents the
results of our comprehensive biological
status review for the species, including
an assessment of the potential threats to
the species. The SSA report does not
represent a decision by the Service on
whether the species should be proposed
for listing as an endangered or
threatened species under the Act. It
does, however, provide the scientific
basis that informs our regulatory
decisions, which involves the further
application of standards within the Act
and its implementing regulations and
policies.
To assess Wright’s marsh thistle
viability, we used the three conservation
biology principles of resiliency,
redundancy, and representation (Shaffer
and Stein 2000, pp. 306–310). Briefly,
resiliency supports the ability of the
species to withstand environmental and
demographic stochasticity (for example,
wet or dry, warm or cold years),
redundancy supports the ability of the
species to withstand catastrophic events
(for example, droughts, large pollution
events), and representation supports the
ability of the species to adapt over time
to long-term changes in the environment
(for example, climate changes). In
general, the more resilient and
redundant a species is and the more
representation it has, the more likely it
is to sustain populations over time, even
under changing environmental
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conditions. Using these principles, we
identified the species’ ecological
requirements for survival and
reproduction at the individual,
population, and species levels, and
described the beneficial and risk factors
influencing the species’ viability.
The SSA process can be categorized
into three sequential stages. During the
first stage, we evaluated the individual
species’ life-history needs. The next
stage involved an assessment of the
historical and current condition of the
species’ demographics and habitat
characteristics, including an
explanation of how the species arrived
at its current condition. The final stage
of the SSA involved making predictions
about the species’ responses to positive
and negative environmental and
anthropogenic influences. This process
used the best available information to
characterize viability as the ability of a
species to sustain populations in the
wild over time. We use this information
to inform our regulatory decision.
Summary of Biological Status and
Threats
In this discussion, we review the
biological condition of the species and
its resources, and the threats that
influence the species’ current and future
condition, in order to assess the species’
overall viability and the risks to that
viability.
To determine the species’ current
condition, we ranked each population
based on six factors relating to
population and habitat variables
including habitat quantity, number of
patches, abundance, reproduction,
permanent root saturation, and full sun.
For each of these six factors, we defined
criteria for low, moderate, and high
conditions, which are outlined in table
3.3 in chapter 3 of the SSA report. These
criteria were used to determine an
overall condition for each of the eight
extant populations (USFWS 2017). The
overall condition of a population refers
to the likelihood of persistence over
time. We expect a population in high
overall condition to have a greater than
90 percent likelihood of persistence
over the foreseeable future (in other
words a 10 percent or less likelihood of
extirpation). For a population in
moderate condition, we estimate that
the likelihood of persistence over the
foreseeable future would be
approximately 66 to 90 percent (10 to 33
percent likelihood of extirpation). For a
population in low condition, we
estimated a likelihood of persistence of
approximately 25 to 66 percent over the
foreseeable future (33 to 75 percent
likelihood of extirpation) and a
population in very low condition to
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have a likelihood of persistence of
approximately 0 to 25 percent over the
foreseeable future (75 to 100 percent
likelihood of extirpation).
For Wright’s marsh thistle to maintain
viability, its populations or some
portion thereof must be able to
withstand stochastic disturbance.
Resource needs that influence the
resiliency of populations include
constant soil saturation, alkaline soils,
abundance of insect pollinators, and
availability of direct sunlight.
Additionally, secondary resource needs
include agents of seed dispersal (wind,
water, mammals, and birds), and water
availability for seed germination. For
more details on these resource needs
and their impact on species viability,
refer to chapter 2 of the SSA report
(USFWS 2017). Factors that influence
those resource needs will determine
whether Wright’s marsh thistle
populations are able to sustain adequate
numbers within habitat patches of
adequate area and quality to maintain
survival and reproduction in spite of
disturbance, thereby increasing the
resiliency of populations.
Maintaining representation in the
form of genetic or environmental
diversity is important to maintain
Wright’s marsh thistle’s capacity to
adapt to future environmental changes.
A healthy community of insect
pollinators, particularly bees and
butterflies, leads to genetic diversity by
the process of cross pollination between
patches within a population. The
differences in flower color (and perhaps
differences in mature plant maximum
growth height) represent differences in
ecological adaptability between the
eastern and western populations of the
thistle, which may also represent a form
of genetic diversity. There is a need to
maintain the genetic and environmental
diversity between the eastern and
western groups, as their potential
genetic and life-history attributes may
buffer the thistle’s response to
environmental changes over time.
Wright’s marsh thistle has likely lost
genetic and environmental diversity as
populations have been reduced or
extirpated. As such, maintaining the
remaining representation in the form of
genetic and environmental diversity
may be important to the capacity of
Wright’s marsh thistle to adapt to future
environmental change.
Wright’s marsh thistle needs to have
multiple resilient populations
distributed throughout its range to
provide for redundancy. The more
populations, and the wider the
distribution of those populations, the
more redundancy the species will
exhibit. In addition, populations of the
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species can exhibit internal redundancy
through the presence of multiple
patches within the population. For
example, the eastern populations of
Wright’s marsh thistle have multiple
patches of occupied habitat within each
population location, while the western
populations typically have only one
patch. The presence of multiple patches
contributes to the ability of the
population to maintain resiliency when
faced with various risk factors.
Redundancy reduces the risk that a large
portion of the species’ range will be
negatively affected by a catastrophic
natural or anthropogenic event at a
given point in time. Species that are
well-distributed across their historical
range are considered less susceptible to
extinction and have higher viability
than species confined to a small portion
of their range (Carroll et al. 2010, entire;
Redford et al. 2011, entire).
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Current Condition of Wright’s Marsh
Thistle
As stated above, the best available
information indicates that Wright’s
marsh thistle is currently only found in
eight localities in New Mexico. We
believe the plant has been extirpated in
Arizona, Mexico, and two locations in
New Mexico, and never occurred in
Texas. According to our current
condition rankings outlined in chapter 3
of the SSA report, of the eight extant
populations in New Mexico, three have
been determined to have moderate
resiliency, two have low resiliency, and
three have very low resiliency and are
at risk of extirpation. We consider the
thistle to have representation in the
form of genetic and environmental
diversity resulting in two distinct
phenotypes in the eastern and western
populations, as described above. Within
the two representation areas (east and
west), three populations are extant in
the east, and five populations are extant
in the west. While there is greater
redundancy in terms of number of
populations in the western phenotype,
the five extant populations in the
western representation are much
smaller in both the area occupied and
population size. Therefore, the western
populations are less resilient. This
circumstance impacts the overall
viability of the species by reducing the
overall resiliency of the thistle to
stochastic events.
Influence Factors for Wright’s Marsh
Thistle
The largest threats to the future
viability of Wright’s marsh thistle relate
to habitat degradation from various
stressors influencing the availability of
the thistle’s resource needs (e.g., water
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availability). A brief summary of these
primary stressors is presented below,
followed by a table identifying the
particular stressors, and the magnitude
of those stressors, affecting each of the
eight populations (Table 1). We also
include a discussion of current
conservation measures for the thistle
and any existing regulatory mechanisms
that may ameliorate or reduce the
impact of the stressors. For a full
description of these stressors, refer to
chapter 4 of the SSA report (USFWS
2017).
Decreased Water Availability
The drying of Wright’s marsh thistle
habitat over approximately the last 25
years has led to shrinking population
boundaries, a reduction in the numbers
of plants, and, in some cases, a loss of
all individuals at several localities
(Sivinski 1996; Sivinski 2005, pp. 3–4;
Sivinski 2012). Because the thistle
occurs only in areas that are watersaturated, populations have a high
potential for extirpation when the
habitat dries up. Loss of water from
Wright’s marsh thistle habitat occurs
through changing precipitation patterns
or drought, or as a result of human
impacts from groundwater pumping
(withdrawal) or diversion of surface
water, which can lead to the
degradation and extirpation of the
species’ habitat (Sivinski 1996, p. 5;
Sivinski 2005, p. 1; USFS 2008, p. 19).
In addition to experiencing periods of
drought, much of the habitat of Wright’s
marsh thistle has been and continues to
be severely altered and degraded
because of past and present land and
water management practices that have
led to ground and surface water
depletion. For specific examples for
each population, please refer to chapter
4, section 1 of the SSA report (USFWS
2017). All of the extant localities may be
affected by long-term drought, whereas
four of the largest localities at Blue
Spring, Bitter Lake NWR, Santa Rosa,
and Alamosa Creek have the potential to
be further modified by ongoing and
future water management practices.
Drought, along with ground and surface
water depletion, serve to decrease the
amount of water available in Wright’s
marsh thistle habitat, which impacts the
species’ need for permanent root
saturation. Reductions in precipitation
and temperature are predicted, which
suggests that these impacts will increase
in the future, leading to further impacts
to the thistle (NOAA 2017).
Decreased Water Availability: Drought
According to the United States
Drought Monitor (2017), large portions
(over 30 percent) of New Mexico,
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including Wright’s marsh thistle habitat,
experienced drought from
approximately April 2011 until mid2014. Within New Mexico, monsoonal
summer precipitation can be very
patchy, with some areas receiving
considerably less rainfall than others.
Newton et al. (2012) provides
information on drought conditions in
the range of the species, specifically in
the Pecos River valley and Sacramento
Mountains. The three eastern
populations of Wright’s marsh thistle in
the Pecos River valley have not been
affected by drought to the same extent
as the western populations, because the
Pecos River valley’s marshy habitats are
maintained by large regional aquifers.
The western populations often rely on
wet periods during summer months to
recharge the ground water. In the
Sacramento Mountains, because these
wet periods are extremely rare events
(Newton et al. 2012, p. 66), drought has
notably impacted the area’s
groundwater tables (USFS 2008, p. 22).
For this reason, the seasonal
distribution of yearly precipitation can
result in temporary drought conditions
and reduced water availability for some
Wright’s marsh thistle localities within
this mountain range.
Wright’s marsh thistle is vulnerable to
reduced water availability because the
species occupies relatively small areas
of spring or seep habitat in an arid
region that is plagued by drought and
ongoing aquifer withdrawals (e.g., in the
Roswell Basin). If future episodes of
drought increase in frequency, duration,
or intensity, additional dewatering and
decrease of the thistle’s habitat are
likely to occur. Projected increases in
temperature and increased variability in
precipitation in locations where
Wright’s marsh thistle is currently
located demonstrate the vulnerability of
the habitat to reductions in water
availability. The vulnerability of the
habitat to increased drought depends, in
large part, on the sources of their water
supply. Habitats that are sustained
mainly by precipitation in the
Sacramento Mountains (five
populations) are the most likely to be
affected by increased drought, making
drought a significant stressor to these
populations. Alternatively, localities
that are supplied primarily by
groundwater in the Pecos River Basin
(three populations) will likely have the
greatest resistance to increased drought
due to water stored in aquifers, making
drought a slightly less significant
stressor to the populations (e.g., see Poff
et al. 2002, pp. 18–19).
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Decreased Water Availability: Ground
and Surface Water Depletion
Wright’s marsh thistle is a wetland
plant that can be extirpated when its
habitat dries out. The effects of ongoing
and past maintenance and operation of
existing water diversions can also limit
the size of thistle populations (USACE
2007, p. 29). Sivinski (1994, pp. 1–2;
1996, p. 4; 2005, p. 1; 2006, p. 4)
reported loss and degradation of habitat
from water diversion or draining of
wetlands that historically supported
Wright’s marsh thistle in Chaves, Otero,
and Sierra Counties, New Mexico. The
extent of ongoing and future water
diversions is related to the extent of
urban and agricultural development
within a given area. Thus, the
significance of the impacts of this
stressor to each population can be
correlated to the number of water
diversions within the area for both
urban and agricultural purposes.
Specific details on impacts to each
population can be found in chapter 4 of
the SSA report (USFWS 2017). The
alteration and loss of habitat that
currently supports Wright’s marsh
thistle, due to groundwater and surface
water depletion, will continue and
likely increase in the foreseeable future.
This projection is based on current and
future development plans in areas
surrounding each population; specific
details are located in chapter 4 of the
SSA report (USFWS 2017).
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Decreased Water Availability: Effects of
Climate Change
Because Wright’s marsh thistle
occupies relatively small areas of spring
or seep habitat in an arid region plagued
by drought and ongoing aquifer
withdrawals (e.g., in the Roswell Basin),
it is expected to be vulnerable to
changes in climate that decrease the
availability of water to suitable habitat.
Springs and wet valleys have been
affected by drought in at least three
canyons of the Sacramento Mountains,
New Mexico, resulting in reduced
population sizes. Similar water loss may
occur within other Wright’s marsh
thistle localities (USFWS 2017). If
changes in climate lead to future
drought, additional dewatering and
reduction of habitat for the thistle may
occur.
Downscaled projections as of 2018
were available for our analysis of
Wright’s marsh thistle from the Climate
Explorer program in the U.S. Climate
Resilience Toolkit (NOAA 2017). The
Climate Explorer is based on 32 models
and produces a mean which can be used
to predict changes in air temperature
and precipitation for counties, cities or
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specific zip codes in the contiguous
United States and portions of Canada
and Mexico. Scenario RCP 4.5 is a
moderate emissions scenario for
atmospheric concentrations of
greenhouse gases. Based on climate
change projections for emissions at RCP
4.5, all locations where Wright’s marsh
thistle is currently located show
increases in mean daily maximum
temperature over the next 50 years by
approximately 1.7 degrees Celsius (°C)
(3 degrees Fahrenheit (°F)). For
example, in Chaves County, New
Mexico, mean daily maximum
temperature is expected to rise from
approximately 24.7 °C (76.5 °F) in 2010,
to approximately 26.9 °C (80.5 °F) in
2060. Climate change scenario RCP 8.5
projects climate conditions based on
higher CO2 emissions. This scenario
results in a projected change of
approximately 3 °C (5.5 °F) over the next
50 years in Chaves County, New Mexico
leading to a mean daily maximum of
28.2 °C (82.7 °F).
While mean daily precipitation is not
expected to vary drastically over the
next 50 years, the variability in
precipitation throughout the year will
increase. For example, in Otero County,
mean daily average precipitation is
projected to decrease during certain
times of the year and increase during
other times of the year relative to
current conditions. In addition, the
timing of maximum precipitation events
may occur during different months than
experienced in the past. This variability
in precipitation will contribute to more
periods of extreme drought and severe
flooding events, which may impact the
availability of water during times
critical to life-history traits of Wright’s
marsh thistle (NOAA 2017).
Specific details on the effects of
climate change are located in chapter 4
of the SSA report (USFWS 2017).
Projected increases in temperature and
increased variability in precipitation in
locations where Wright’s marsh thistle
is currently located demonstrate the
vulnerability of the species’ habitat to
changes in climate that will exacerbate
the impact of existing stressors relating
to availability of water and the extent of
current and ongoing water withdrawals.
Decreased Water Availability: Summary
In summary, ground and surface
water withdrawal and potential future
increases in the frequency, duration, or
intensity of drought, individually and in
combination, pose a threat to Wright’s
marsh thistle and its habitat in the
future. In addition, as Wright’s marsh
thistle has small, isolated populations,
we expect the stressor of decreased
water availability to further impact the
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species’ overall viability. Thus, we
expect that this threat will likely remain
a significant stressor to the thistle and
will likely intensify in the foreseeable
future.
Livestock Grazing
In the semi-arid southwestern United
States, wet marshes and other habitat of
Wright’s marsh thistle attract ungulates
(e.g., livestock, elk, and deer) because of
the availability of water and highquality forage (Hendrickson and
Minckley 1984, p. 134). Livestock
grazing is present at localities in the
Sacramento Mountains, Santa Rosa,
Blue Springs, and Alamosa Springs. At
the Santa Rosa locality, photographs
indicate that the growth of Wright’s
marsh thistle and the integrity of its
habitat have been negatively affected by
livestock herbivory and trampling
(Sivinski 2012 pp. 33–53). Dry periods
likely increase the effects of livestock
trampling and herbivory on Wright’s
marsh thistle when other water and
forage plants are not available (75 FR
67925). Grazing may be more
concentrated within habitats similar to
those occupied by Wright’s marsh
thistle during drought years, when
livestock are prone to congregate in
wetland habitats or where forage
production is greater than in adjacent
dry uplands (USFS 2003, entire).
Livestock may trample individual plants
and eat the thistle when other green
forage is scarce, and when the seedlings
or rosettes are developing and abundant.
Further, livestock may eat mature plant
inflorescences (the complete flower
head), which could reduce seed
production. For example, the threatened
Sacramento Mountains thistle (C.
vinaceum) (52 FR 22933), which is also
found in New Mexico and associated
with habitats similar to those occupied
by Wright’s marsh thistle, is eaten by
livestock and appears to be the preferred
forage at some times of the year. It may
provide some of the only green forage
during droughts (NMRPTC 2009, p. 2).
Also, it is possible that livestock grazing
within and adjacent to spring
ecosystems could alter or remove
habitat or limit the distribution of the
thistle (USFWS 2017).
Effects of grazing on Wright’s marsh
thistle depend on timing; winter grazing
(after seed dispersal and before seedling
growth in spring) probably has a low
effect on survival and reproduction,
although there could be some trampling
of rosettes. On the other hand, spring
and early summer grazing probably
reduces growth, survival, and
reproduction. Late summer and early
fall grazing is most severe, as flowering
plants typically set seed at this time;
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therefore, grazing during this period
would inhibit reproduction. Finally, if a
patch of Wright’s marsh thistle was
heavily grazed during the time of
bolting or flowering over 2 or more
consecutive years, the seed bank and
long-term population trend in the
affected patch could be negatively
impacted. For example, observations of
the impacts of grazing at some of the
Wright’s marsh thistle localities show
that fewer thistles mature into flowering
adults when the population experiences
grazing pressure (Sivinski 2012 pp. 33–
53). Livestock activities are considered
a widespread stressor at the current
time; localized impacts have been
observed and there is a high potential
for effects to populations. Increased use
of wet springs and marshes by livestock
during drought conditions constitutes a
significant stressor in the future.
In summary, we find that livestock
grazing poses a current and future threat
to Wright’s marsh thistle and its habitat
through direct mortality and habitat
degradation, and we expect that this
threat will likely intensify at some
localities (Sacramento Mountains, Santa
Rosa, Blue Spring, Alamosa Springs)
due to projected increases in drought
periods that cause livestock to
concentrate around Wright’s marsh
thistle localities. Because the thistle
only occurs in small, isolated
populations, the impacts of grazing
could be a significant stressor to the
species.
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Native and Nonnative Plants
Some native and nonnative plants
pose a threat to Wright’s marsh thistle
and its habitat through habitat
encroachment and competition for
resources at most localities. The native
plants include cattails (Typha spp.);
nonnative species include the common
reed (Phragmites australis), purple
loosestrife (Lythrum salicaria), Russian
olive (Elaeagnus angustifolia), saltcedar
(Tamarix spp.), and Russian thistle
(Salsola spp.) (Sivinski 1996, p. 6).
These particular native and nonnative
species all have the same effect on
Wright’s marsh thistle by functioning as
invasive species with respect to the
thistle’s habitat. Though cattails and
Wright’s marsh thistle may have
evolved in the same area, decreased
water availability has altered habitat
conditions such that cattails have a
competitive advantage in Wright’s
marsh thistle habitat. These plants
present unique challenges and potential
threats to the habitat, including shade
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effects on Wright’s marsh thistle
seedlings and rosettes.
For example, the common reed, a
nonnative invasive plant introduced
from Europe and Asia, increases the
potential for wildfire and is increasing
in density at some locations in New
Mexico. The dense plant growth blocks
sunlight to other plants growing in the
immediate area and occupies all
available habitat (PCA 2005, p. 1). The
increase of the common reed in Wright’s
marsh thistle habitat is a current threat
to the species through increased
wildfire risk, competition, and changes
in hydrology (impacts on degree of soil
saturation), especially when habitat is
disturbed through burning or drying.
The impacts vary based on location,
with the greatest impacts occurring at
Santa Rosa, Bitter Lake NWR, Blue
Spring, and Tularosa Creek.
We expect that the threats caused by
native and nonnative plant competition
and habitat loss will likely continue and
possibly intensify, due to lack of
vegetation management practices at
several locations (Santa Rosa, Blue
Spring, Tularosa Creek) and the
pervasiveness of native and nonnative
plants despite ongoing efforts for habitat
restoration at other locations (Bitter
Lake NWR). As this species is
comprised of small, isolated
populations, the impacts of native and
nonnative plants could pose a
significant stressor to the thistle.
Attempts to manage native and
nonnative plants through herbicide use
and mowing may also exacerbate effects
to Wright’s marsh thistle as these
techniques are difficult to preferentially
apply to only the native and nonnative
plant species when habitat is shared. In
addition, we expect increases in drought
periods to exacerbate the effects of this
stressor.
Oil and Gas Development and Mining
Oil and gas development occurs
within and adjacent (i.e., within 10
miles) of some areas occupied by
Wright’s marsh thistle including Santa
Rosa, Bitter Lake NWR, and Blue Spring
(New Mexico State Lands Office, 2017;
NMDGF 2007, pp. 18–19; NMDGF 2005,
p. 35). There are also mining activities
adjacent (i.e., within 5 miles) to other
areas such as a potential beryllium mine
at Alamosa Springs, and subsurface
drilling and exploration of the mineral
bertrandite on Sullivan Ranch near
Alamosa Springs (New Mexico Mining
and Minerals Division 2010; New
Mexico State Lands Office, 2017;
Sivinski 2012, p. 9). As of February
2020, the Service has no information on
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61467
any new actions towards developing the
potential beryllium mine at Alamosa
Springs. The main impacts from oil and
gas development and mining include
the potential for contamination.
Contamination from oil and gas
development has been observed within
close proximity (i.e., within 16 km (10
mi) of some Wright’s marsh thistle
localities (New Mexico State Lands
Office, 2017). While laws and
regulations related to water quality have
reduced the risk of contamination in
and near occupied locations from oil
and gas production, the likelihood that
a spill could impact these habitats is
still present based on the high volume
of oil and gas leases near these areas.
Potential contamination from both oil
and gas development and mining could
have several impacts on plants (such as
Wright’s marsh thistle), including the
following: increased available nutrients,
which may favor competitive or
nonnative plant growth; altered soil pH
(either higher or lower), which can kill
plants; absorption of chemicals, which
can poison plants or cause poor growth
or dead spots on leaves; and plant
mortality. In addition, oil and other
contaminants from development and
drilling activities throughout these areas
could enter the aquifer supplying the
springs and seeps inhabited by Wright’s
marsh thistle when the limestone layers
are pierced by drilling activities. An
accidental oil spill or groundwater
contamination has the potential to
pollute water sources that support
Wright’s marsh thistle, and mining
activities could alter or destroy habitat.
The largest occupied habitat area is
less than 16 ha (40 ac), and more than
half the known populations are less
than 2 ha (5 ac) in size. Even a small,
localized spill has the potential to
contaminate and destroy a population.
The loss of even one of the eight
populations would result in loss of
representation and redundancy to the
species as a whole. Because this species
is comprised of small, isolated
populations, these stressors could
potentially negatively affect the thistle,
but it is unclear whether these impacts
would be localized or widespread
stressors as the interaction between
contaminant spills and groundwater and
surface water hydrology is poorly
understood. Therefore, we have
determined that oil and gas
development and mining functions as a
stressor to the future viability of the
species via impacts to water sources that
provide habitat for Wright’s marsh
thistle.
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TABLE 1—STRESSORS IMPACTING EACH OF THE EIGHT POPULATIONS OF WRIGHT’S MARSH THISTLE
[USFWS 2017, chapter 4]
Stressors to population
Decreased water availability
Population
Drought
Groundwater
and surface
water
depletion
Livestock
grazing
Native and
nonnative
plants
Oil and gas
development
XX
XX
XX
XXX
........................
XX
XX
XX
X
X
XX
XX
XX
XX
XX
XX
XX
X
........................
X
X
X
........................
X
........................
........................
X
X
........................
........................
........................
........................
Effects of
climate
change
Eastern Populations
Santa Rosa Basin ....................................
Bitter Lake NWR ......................................
Blue Spring ..............................................
XX
XX
XX
XX
XX
XXX
Western Populations
Alamosa Springs ......................................
Tularosa Creek ........................................
Silver Springs ...........................................
La Luz Canyon .........................................
Karr/Haynes Canyon ................................
XXX
XXX
XXX
XXX
XXX
XX
XX
XXX
XXX
XXX
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Note: XXX indicates a significant stressor to the population, XX indicates a moderate stressor to the population, and X indicates a mild
stressor to the population.
Conservation Measures and Regulatory
Mechanisms
Minimal conservation of Wright’s
marsh thistle is occurring on the Federal
level. The Bitter Lake NWR manages
invasive reeds in their moist soil/
wetland units where the species is
located. This management helps
increase sunlight availability and
decrease competition with nonnative
species. The NWR also recently received
a grant to complete seed collection
efforts for Wright’s marsh thistle. The
Lincoln National Forest does not have
active conservation for the thistle, but
implements a 61-m (200-ft) buffer
around occupied sites when projects
occur within or near occupied areas.
At the State level, Wright’s marsh
thistle is listed as endangered, under the
authority of the New Mexico Statutes
Annotated 1978, at title 19 of the New
Mexico Administrative Code at chapter
21, part 2, section 9 (19 NMAC 21.2.9).
The provisions in New Mexico state law
prohibit the taking of endangered plants
on all lands of New Mexico (except
tribal lands), except under valid permit
issued by the State, and encourage
conservation by State government
agencies. In this instance, ‘‘taking’’
means the removal, with the intent to
possess, transport, export, sell, or offer
for sale. Further, if Wright’s marsh
thistle is listed under the Act, the State
may enter into agreements with Federal
agencies to administer and manage any
area required for the conservation,
management, enhancement, or
protection of listed species. Funds for
these activities could be made available
under section 6 of the Act (Cooperation
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with the States). Thus, the Federal
protection afforded to this plant by
listing it as an endangered or threatened
species would be reinforced and
supplemented by protection under State
law. In addition to the state endangered
listing for Wright’s marsh thistle, some
protection is offered to the species
through Title 19 of the New Mexico
Administrative Code at chapter 15, part
2 (19 NMAC 15.2) which outlines
general environmental provisions for
water and wildlife relating to oil and gas
operations including information on
methods to reduce risk of contamination
to the surrounding habitat. While this
reduces the risks associated with oil and
gas production to nearby occupied
locations of the thistle, the high volume
of oil and gas leases near these sites
means the risk of impacts from a spill
still persist.
Future Scenarios Considered
As there are a range of possibilities
regarding the intensity of stressors (i.e.,
decreased water availability to habitat,
ungulate grazing, native and nonnative
plants, oil and gas development, and
mining) acting on the populations, we
forecast Wright’s marsh thistle’s
resiliency, representation, and
redundancy under four plausible
scenarios in the SSA report. For these
scenarios, we considered four different
trajectories for all threats acting on the
species (i.e., all threats increasing at two
different rates, decreasing, or remaining
at the current level). We did not look at
interactions between threats (i.e., one
threat increasing with another threat
decreasing), as data were not sufficient
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for this type of analysis. These four
scenarios incorporate the best available
information on projection of threat data
up to 50 years in the future. Sources of
data include, but are not limited to,
development (urban, agricultural, oil
and gas and mining) plans for various
areas and climate change models. For
example, we referenced the City of
Alamogordo’s 50-year development plan
for projections of future water
withdrawals. In regards to climate
change models, we used a moderate
emissions climate change scenario of
RCP 4.5 from the 2017 U.S. Climate
Resilience Toolkit, which provides a
range of projections for temperature and
precipitation through 2100 (NOAA
2017). We also used the U.S. Geological
Survey’s Monthly Water Balance Model
Futures Portal that provides projections
out to the year 2095 for changes in
evapotranspiration (USGS 2017, entire).
Some, but not all, of the threats could
be projected beyond 50 years into the
future. Therefore, to develop our future
scenarios, we only used projection
information up to 50-years into the
future, the timeframe that includes
projections for all future threats and for
which we could predict the expected
future resiliency and overall condition
for each population based on our
knowledge of the species’ expected
response to identified threats.
First, the ‘‘Continuing Current
Conditions’’ scenario projects the
condition of Wright’s marsh thistle
populations if the current risks to
population viability continue with the
same trajectory as experienced
currently. Decreased water availability
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continues to impact the populations via
continuing levels of drought, along with
ground and surface water depletion.
Grazing continues where it has been
occurring, and the impacts will
accumulate. Competition from native
and nonnative plants continues, along
with any current impacts from oil and
gas development. For this scenario, we
used the mean level of projected values
in temperature (an increase in mean
daily maximum temperature of
approximately 0.83 °C (1.5 °F) over 50
years).
Second, the ‘‘Optimistic’’ scenario
projects the condition of Wright’s marsh
thistle populations if conservation
measures are put in place to limit the
impacts of current risks to population
viability, including conservation efforts
to address decreased water availability,
livestock grazing, and competition with
native and nonnative plants. For this
scenario, we used the low level of
projected values in temperature (an
increase in mean daily maximum
temperature of approximately 0.56 °C
(1.0 °F) over 50 years and increases in
mean monthly potential
evapotranspiration of 0 to 10
millimeters (mm) (0 to 0.4 inches (in))
over 50 years), leading to less severe
effects of drought on the riparian
ecosystems of which Wright’s marsh
thistle is a part.
Third, the ‘‘Major Effects’’ scenario
projects the condition of Wright’s marsh
thistle if stressors on the populations are
increased. We expect a decrease in
water availability, along with increased
negative impacts from grazing, native
and nonnative plants, oil and gas
development, and mining. For this
scenario, we used the moderate level of
projected values in temperature (an
increase in mean daily maximum
temperature of approximately 1.7 °C (3.0
°F) over 50 years, and increases in mean
monthly potential evapotranspiration of
10 to 30 mm (0.4 to 1.2 in) over 50
years), with increased impacts of
drought.
Finally, the ‘‘Severe Effects’’ scenario
projects the condition of Wright’s marsh
thistle populations under the
assumption that stressors on the
populations are highly increased.
Compared to the ‘‘Major Effects’’
scenario, we expect a further decrease in
water availability, along with further
increased negative impacts from
ungulate grazing, native and nonnative
plants, oil and gas development, and
mining. For this scenario, we used the
high level of projected values in
temperature (an increase in mean daily
maximum temperature of approximately
2.8 °C (5.0 °F) over 50 years and
increases in mean monthly potential
evapotranspiration of 30 to 80 mm (1.2
to 3.1 in) over 50 years) with increased
impacts of drought.
Thus, we considered the range of
potential likely scenarios that represent
different possibilities for how the
stressors outlined above may influence
the future condition of the species. The
results of this analysis for each scenario
are presented below in Table 2. For
specific details on how each scenario
impacted the six factors (habitat
quantity, number of patches,
abundance, reproduction, permanent
root saturation, and full sun)
contributing to overall condition of each
population, refer to chapter 5 of the SSA
report (USFWS 2017).
TABLE 2—CONDITION RATINGS FOR EACH OF THE EIGHT POPULATIONS OF WRIGHT’S MARSH THISTLE UNDER FOUR
POSSIBLE FUTURE SCENARIOS
[USFWS 2017, Chapter 5]
Population
Scenario 1:
Continuing current
conditions
Current condition
Scenario 2:
Optimistic
Scenario 3:
Major effects
Scenario 4:
Severe effects
Eastern Populations
Santa Rosa Basin ....................................
Bitter Lake NWR ......................................
Blue Spring ..............................................
Moderate .............
Moderate .............
Moderate .............
Moderate .............
Moderate .............
Low ......................
High .....................
High .....................
Moderate .............
Moderate .............
Moderate .............
Low ......................
Low.
Low.
Low.
Low ......................
Very Low .............
Very Low .............
Very Low .............
Low ......................
Low ......................
Extirpated ............
Very Low .............
Very Low .............
Low ......................
Low ......................
Very Low .............
Very Low .............
Very Low .............
Low ......................
Very Low .............
Extirpated ............
Extirpated ............
Extirpated ............
Low ......................
Extirpated.
Extirpated.
Extirpated.
Extirpated.
Extirpated.
Western Populations
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Alamosa Springs .....................................
Tularosa Creek ........................................
Silver Springs ..........................................
La Luz Canyon ........................................
Karr/Haynes Canyon ...............................
We note that, by using the SSA
framework to guide our analysis of the
scientific information documented in
the SSA report, we have not only
analyzed individual effects on the
species, but we have also analyzed their
potential cumulative effects. We
incorporate the cumulative effects into
our SSA analysis when we characterize
the current and future condition of the
species. Our assessment of the current
and future conditions encompasses and
incorporates the threats individually
and cumulatively. Our current and
future condition assessment is iterative
because it accumulates and evaluates
the effects of all the factors that may be
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influencing the species, including
threats and conservation efforts.
Because the SSA framework considers
not just the presence of the factors, but
to what degree they collectively
influence risk to the entire species, our
assessment integrates the cumulative
effects of the factors and replaces a
standalone cumulative effects analysis.
Determination of the Status of Wright’s
Marsh Thistle
Section 4 of the Act (16 U.S.C. 1533),
and its implementing regulations (50
CFR part 424) set forth the procedures
for determining whether a species meets
the definition of an endangered species
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or a threatened species. The Act defines
‘‘endangered species’’ as a species ‘‘in
danger of extinction throughout all or a
significant portion of its range,’’ and
‘‘threatened species’’ as a species ‘‘likely
to become an endangered species within
the foreseeable future throughout all or
a significant portion of its range.’’ The
Act requires that we determine whether
a species meets the definition of
‘‘endangered species’’ or ‘‘threatened
species’’ because of any of the following
factors: (A) The present or threatened
destruction, modification, or
curtailment of its habitat or range; (B)
overutilization for commercial,
recreational, scientific, or educational
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purposes; (C) disease or predation; (D)
the inadequacy of existing regulatory
mechanisms; or (E) other natural or
manmade factors affecting its continued
existence.
Status Throughout All of Its Range
We have carefully assessed the best
scientific and commercial information
available regarding the past, present,
and future threats and the cumulative
effect of the threats under the section
4(a)(1) factors to Wright’s marsh thistle.
Wright’s marsh thistle is a narrow
endemic (restricted to a small range)
with a historical, documented decline.
The historical range of the species
included 10 locations in New Mexico, 2
locations in Arizona, and 2 locations in
Mexico. Wright’s marsh thistle has been
extirpated from all previously known
locations in Arizona and Mexico, as
well as two locations in New Mexico. In
addition, the currently extant
populations have declined in
population numbers over time based on
comparisons between 1995 and 2012
surveys (Sivinski 1996 entire, 2012
entire). As a result, the remaining extant
area of the eight populations has
contracted in recent years, and is
currently approximately only 43 ha (106
ac). Of the remaining eight extant
populations, three have moderate
resiliency, two have low resiliency, and
three have very low resiliency and are
likely at risk of extirpation (USFWS
2017). The species historically had
representation in the form of two
morphologically distinct and
geographically separate forms; the
species continues to maintain
representation currently in these forms,
although population sizes have
decreased.
Wright’s marsh thistle faces threats
from habitat degradation due to
decreased water availability, livestock
grazing, native and nonnative plants,
and oil and gas development and
mining (Factor A). These threats, which
are expected to be exacerbated by
continued drought and the effects of
climate change (Factor E), were
important factors in our assessment of
the future viability of Wright’s marsh
thistle. In addition, small, isolated
populations and lack of connectivity
contribute to the thistle’s low resiliency
to stochastic events (Factor E). We
expect a further decrease in water
availability, along with increased
negative impacts from grazing, native
and nonnative plants, oil and gas
development, and mining. Given
current and anticipated future decreases
in resiliency, populations would
become more vulnerable to extirpation
from stochastic events, in turn, resulting
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in concurrent losses in representation
and redundancy. The range of plausible
future scenarios of the species’ habitat
conditions and population factors
suggest possible extirpation in as many
as five of eight currently extant
populations. The most optimistic model
predicted that while no populations
were likely to become extirpated, three
of the eight populations were expected
to have very low resiliency.
As assessed in the SSA report and
displayed above in Table 2, the current
condition rankings for the eight extant
populations show that three populations
are in moderate condition, two
population are in low condition, and
three populations are in very low
condition. Wright’s marsh thistle also
exhibits representation across two
morphologically distinct and
geographically separate forms. While
threats are currently acting on the thistle
throughout its range, the three eastern
populations (Santa Rosa, Bitter Lake,
and Blue Springs) were found to have
high or moderate resiliency for their
current condition. Therefore, we did not
find that the thistle is currently in
danger of extinction throughout all of its
range, based on the current condition of
the species; thus, an endangered status
is not appropriate.
Wright’s marsh thistle meets the
definition of a threatened species
because it is facing threats across its
range that have led to reduced
resiliency, redundancy, and
representation. According to our
assessment of plausible future scenarios,
the species is likely to become an
endangered species within the
foreseeable future throughout all of its
range. For the purposes of this
determination, the foreseeable future is
considered approximately 25 years into
the future. This timeframe was arrived
at by looking at the various future
projections associated with data from
the Intergovernmental Panel on Climate
Change (IPCC), U.S. Climate Resilience
Toolkit, future development plans from
the City of Alamogordo and Santa Rosa,
and grazing management information
from the U.S. Forest Service. These data
sources covered a variety of time frames,
but all covered a span of at least 50
years. We therefore looked at the
projections from these sources in each
of our future scenarios out to three time
steps: 10 years, 25 years, and 50 years.
We found that as the projections for the
various stressors went past 25 years in
the scenarios, the uncertainties
associated with some of those
projections, particularly water use and
depletion, increased. Thus, for the
purposes of this determination, we were
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most confident in setting the foreseeable
future at 25 years.
Our analysis of the species’ current
and future conditions show that the
population and habitat factors used to
determine the resiliency, representation,
and redundancy for Wright’s marsh
thistle are likely to continue to decline
to the degree that the thistle is likely to
become in danger of extinction within
the foreseeable future throughout all or
a significant portion of its range. While
the ‘‘Optimistic’’ scenario resulted in
two of the populations with moderate
current condition improving to high
condition due to increased conservation
measures, the other three scenarios all
resulted in decreased resiliency for
some if not most populations. The
‘‘Continuing Condition’’ scenario
resulted in one of the current eight
extant populations becoming extirpated,
the ‘‘Major Effects’’ scenario resulted in
three of the current eight extant
populations becoming extirpated, and
the ‘‘Severe Effects’’ scenario resulted in
five of the current eight extant
populations becoming extirpated. Based
on our understanding of the increasing
trends in threats as analyzed into the
foreseeable future (i.e., 25 years), the
likelihood of occurrence of the ‘‘Major
Effects’’ and ‘‘Severe Effects’’ scenarios
increases as time progresses. The
decreased resiliency of populations
projected in three of the four scenarios
would lead to subsequent losses in
redundancy and representation, and an
overall decline in species viability in
the foreseeable future. Further details on
the likelihood of scenarios can be found
in chapter 5 of the SSA report (USFWS
2017).
Due to the continuation of threats at
increasing levels, we anticipate a severe
reduction in the thistle’s future overall
range and the extirpation of several
populations. Furthermore, we anticipate
that the variety of factors acting in
combination on the remaining habitat
and populations are likely to reduce the
overall viability of the species to a
dangerously low level. In addition, the
conservation measures currently in
place are not adequate to overcome the
negative impacts from increasing
threats, and future conservation
measures are not considered highly
plausible. The risk of extinction will be
high because the remaining populations
are small, are isolated, and have limited
or no potential for recolonization after
local population extirpations. Thus,
after assessing the best available
information, we determine that Wright’s
marsh thistle is not currently in danger
of extinction, but is likely to become in
danger of extinction within the
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foreseeable future, throughout all of its
range.
Status Throughout a Significant Portion
of Its Range
Under the Act and our implementing
regulations, a species may warrant
listing if it is in danger of extinction or
likely to become so in the foreseeable
future throughout all or a significant
portion of its range. The court in Center
for Biological Diversity v. Everson, 2020
WL 437289 (D.D.C. Jan. 28, 2020)
(Center for Biological Diversity), vacated
the aspect of the 2014 Significant
Portion of its Range Policy that provided
that the Services do not undertake an
analysis of significant portions of a
species’ range if the species warrants
listing as threatened throughout all of its
range. Therefore, we proceed to
evaluating whether the species is
endangered in a significant portion of its
range—that is, whether there is any
portion of the species’ range for which
both (1) the portion is significant; and,
(2) the species is in danger of extinction
in that portion. Depending on the case,
it might be more efficient for us to
address the ‘‘significance’’ question or
the ‘‘status’’ question first. We can
choose to address either question first.
Regardless of which question we
address first, if we reach a negative
answer with respect to the first question
that we address, we do not need to
evaluate the other question for that
portion of the species’ range.
Following the court’s holding in
Center for Biological Diversity, we now
consider whether there are any
significant portions of the species’ range
where the species is in danger of
extinction now (i.e., endangered). In
undertaking this analysis for Wright’s
marsh thistle, we choose to address the
status question first—we consider
information pertaining to the geographic
distribution of both the species and the
threats that the species faces to identify
any portions of the range where the
species is endangered.
For Wright’s marsh thistle, we
considered whether the threats are
geographically concentrated in any
portion of the species’ range at a
biologically meaningful scale. In light of
the species’ needs (i.e., permanent root
saturation; alkaline soils; full, direct, or
nearly full sunlight; and abundant
pollinators), we examined the following
threats (including cumulative threats):
Habitat degradation due to decreased
water availability, livestock grazing,
native and non-native plants, and oil
and gas development and mining;
continued drought and the effects of
climate change; and small, isolated
populations. Each population of
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Wright’s marsh thistle was determined
to have some level of impact from each
threat listed above, with variations in
source and intensity. For example,
habitat degradation due to decreased
water availability at the Santa Rosa
population location is influenced by
agricultural use, while the La Luz
Canyon population location is
influenced primarily by municipal use.
In another example, livestock grazing
tends to be present with greater
intensity near the Santa Rosa population
location than near the La Luz Canyon
population location. While there may be
some variation in the source and
intensity of each individual threat at
each population location, we found no
concentration of threats in any portion
of Wright’s marsh thistle’s range at a
biologically meaningful scale. Thus,
there are no portions of the species’
range where the species has a different
status from its rangewide status.
Therefore, no portion of the species’
range provides a basis for determining
that the species is in danger of
extinction in a significant portion of its
range, and we determine that the
species is likely to become in danger of
extinction within the foreseeable future
throughout all of its range. This is
consistent with the courts’ holdings in
Desert Survivors v. Department of the
Interior, No. 16–cv–01165–JCS, 2018
WL 4053447 (N.D. Cal. Aug. 24, 2018),
and Center for Biological Diversity v.
Jewell, 248 F. Supp. 3d, 946, 959 (D.
Ariz. 2017).
Determination of Status
Our review of the best available
scientific and commercial information
indicates that Wright’s marsh thistle
meets the definition of a threatened
species. Therefore, we propose to list
Wright’s marsh thistle as a threatened
species in accordance with sections
3(20) and 4(a)(1) of the Act.
Available Conservation Measures
Conservation measures provided to
species listed as endangered or
threatened under the Act include
recognition, recovery actions,
requirements for Federal protection, and
prohibitions against certain practices.
Recognition through listing results in
public awareness and conservation by
Federal, State, Tribal, and local
agencies; private organizations; and
individuals. The Act encourages
cooperation with the States and other
countries and calls for recovery actions
to be carried out for listed species. The
protection required by Federal agencies
and the prohibitions against certain
activities are discussed, in part, below.
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61471
The primary purpose of the Act is the
conservation of endangered and
threatened species and the ecosystems
upon which they depend. The ultimate
goal of such conservation efforts is the
recovery of these listed species, so that
they no longer need the protective
measures of the Act. Subsection 4(f) of
the Act calls for the Service to develop
and implement recovery plans for the
conservation of endangered and
threatened species. The recovery
planning process involves the
identification of actions that are
necessary to halt or reverse the species’
decline by addressing the threats to its
survival and recovery. The goal of this
process is to restore listed species to a
point where they are secure, selfsustaining, and functioning components
of their ecosystems.
Recovery planning includes the
development of a recovery outline
shortly after a species is listed and
subsequent preparation of a draft and
final recovery plan. The recovery
outline guides the immediate
implementation of urgent recovery
actions and describes the process to be
used to develop a recovery plan.
Revisions of the plan may be done to
address continuing or new threats to the
species, as new substantive information
becomes available. The recovery plan
also identifies recovery criteria for
review of when a species may be ready
for reclassification from endangered to
threatened (‘‘downlisting’’) or for
removal from protected status
(‘‘delisting’’), and methods for
monitoring recovery progress. Recovery
plans also establish a framework for
agencies to coordinate their recovery
efforts and provide estimates of the cost
of implementing recovery tasks.
Recovery teams (composed of species
experts, Federal and State agencies,
nongovernmental organizations, and
stakeholders) are often established to
develop recovery plans. When
completed, the recovery outline, draft
recovery plan, and the final recovery
plan will be available on our website
(https://www.fws.gov/endangered).
Implementation of recovery actions
generally requires the participation of a
broad range of partners, including other
Federal agencies, States, Tribes,
nongovernmental organizations,
businesses, and private landowners.
Examples of recovery actions include
habitat restoration (e.g., restoration of
native vegetation), research, captive
propagation and reintroduction, and
outreach and education. The recovery of
many listed species cannot be
accomplished solely on Federal lands
because their range may occur primarily
or solely on non-Federal lands. To
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achieve recovery of these species
requires cooperative conservation efforts
on private, State, and Tribal lands.
If this species is listed, funding for
recovery actions will be available from
a variety of sources, including Federal
budgets, State programs, and cost share
grants for non-Federal landowners, the
academic community, and
nongovernmental organizations. In
addition, pursuant to section 6 of the
Act, the State of New Mexico would be
eligible for Federal funds to implement
management actions that promote the
protection or recovery of Wright’s marsh
thistle. Information on our grant
programs that are available to aid
species recovery can be found at: https://
www.fws.gov/grants.
Although Wright’s marsh thistle is
only proposed for listing under the Act
at this time, please let us know if you
are interested in participating in
recovery efforts for this species.
Additionally, we invite you to submit
any new information on this species
whenever it becomes available and any
information you may have for recovery
planning purposes (see FOR FURTHER
INFORMATION CONTACT).
Section 7(a) of the Act requires
Federal agencies to evaluate their
actions with respect to any species that
is proposed or listed as an endangered
or threatened species and with respect
to its critical habitat, if any is
designated. Regulations implementing
this interagency cooperation provision
of the Act are codified at 50 CFR part
402. Section 7(a)(4) of the Act requires
Federal agencies to confer with the
Service on any action that is likely to
jeopardize the continued existence of a
species proposed for listing or result in
destruction or adverse modification of
proposed critical habitat. If a species is
listed subsequently, section 7(a)(2) of
the Act requires Federal agencies to
ensure that activities they authorize,
fund, or carry out are not likely to
jeopardize the continued existence of
the species or destroy or adversely
modify its critical habitat. If a Federal
action may affect a listed species or its
critical habitat, the responsible Federal
agency must enter into consultation
with the Service.
Federal agency actions within the
species’ habitat that may require
conference or consultation or both as
described in the preceding paragraph
include management and any other
landscape-altering activities on Federal
lands administered by the U.S. Fish and
Wildlife Service and U.S. Forest
Service; issuance of section 404 Clean
Water Act (33 U.S.C. 1251 et seq.)
permits by the U.S. Army Corps of
Engineers; and construction and
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maintenance of roads or highways by
the Federal Highway Administration.
It is our policy, as published in the
Federal Register on July 1, 1994 (59 FR
34272), to identify to the maximum
extent practicable at the time a species
is listed, those activities that would or
would not constitute a violation of
section 9 of the Act. The intent of this
policy is to increase public awareness of
the effect of a proposed listing on
proposed and ongoing activities within
the range of the species proposed for
listing. The discussion below regarding
protective regulations under section 4(d)
of the Act complies with our policy.
II. Proposed Rule Issued Under Section
4(d) of the Act
Background
Section 4(d) of the Act contains two
sentences. The first sentence states that
the ‘‘Secretary shall issue such
regulations as he deems necessary and
advisable to provide for the
conservation’’ of species listed as
threatened. The U.S. Supreme Court has
noted that statutory language like
‘‘necessary and advisable’’ demonstrates
a large degree of deference to the agency
(see Webster v. Doe, 486 U.S. 592
(1988)). Conservation is defined in the
Act to mean ‘‘the use of all methods and
procedures which are necessary to bring
any endangered species or threatened
species to the point at which the
measures provided pursuant to [the Act]
are no longer necessary.’’ Additionally,
the second sentence of section 4(d) of
the Act states that the Secretary ‘‘may by
regulation prohibit with respect to any
threatened species any act prohibited
under section 9(a)(1), in the case of fish
or wildlife, or section 9(a)(2), in the case
of plants.’’ Thus, the combination of the
two sentences of section 4(d) provides
the Secretary with wide latitude of
discretion to select and promulgate
appropriate regulations tailored to the
specific conservation needs of the
threatened species. The second sentence
grants particularly broad discretion to
the Service when adopting the
prohibitions under section 9.
The courts have recognized the extent
of the Secretary’s discretion under this
standard to develop rules that are
appropriate for the conservation of a
species. For example, courts have
upheld rules developed under section
4(d) as a valid exercise of agency
authority where they prohibited take of
threatened wildlife, or include a limited
taking prohibition (see Alsea Valley
Alliance v. Lautenbacher, 2007 U.S.
Dist. Lexis 60203 (D. Or. 2007);
Washington Environmental Council v.
National Marine Fisheries Service, 2002
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U.S. Dist. Lexis 5432 (W.D. Wash.
2002)). Courts have also upheld 4(d)
rules that do not address all of the
threats a species faces (see State of
Louisiana v. Verity, 853 F.2d 322 (5th
Cir. 1988)). As noted in the legislative
history when the Act was initially
enacted, ‘‘once an animal is on the
threatened list, the Secretary has an
almost infinite number of options
available to him with regard to the
permitted activities for those species. He
may, for example, permit taking, but not
importation of such species, or he may
choose to forbid both taking and
importation but allow the transportation
of such species’’ (H.R. Rep. No. 412,
93rd Cong., 1st Sess. 1973).
Exercising its authority under section
4(d), the Service has developed a
proposed rule that is designed to
address Wright’s marsh thistle’s specific
threats and conservation needs.
Although the statute does not require
the Service to make a ‘‘necessary and
advisable’’ finding with respect to the
adoption of specific prohibitions under
section 9, we find that this rule as a
whole satisfies the requirement in
section 4(d) of the Act to issue
regulations deemed necessary and
advisable to provide for the
conservation of the Wright’s marsh
thistle. As discussed above under
Summary of Biological Status and
Threats, the Service has concluded that
Wright’s marsh thistle is likely to
become in danger of extinction within
the foreseeable future primarily due to
habitat loss and modification. The
provisions of this proposed 4(d) rule
would promote conservation of the
species by encouraging management of
the landscape in ways that meet
landowner’s management priorities
while providing for the conservation
needs of Wright’s marsh thistle. The
provisions of this proposed rule are one
of many tools that the Service would
use to promote the conservation of the
Wright’s marsh thistle. This proposed
4(d) rule would apply only if and when
the Service makes final the listing of
Wright’s marsh thistle as a threatened
species.
Provisions of the Proposed 4(d) Rule
This proposed 4(d) rule would
provide for the conservation of Wright’s
marsh thistle by prohibiting, except as
otherwise authorized or permitted, any
person subject to the jurisdiction of the
United States from the following:
Removing and reducing to possession
the species from areas under Federal
jurisdiction; maliciously damaging or
destroying the species on any area
under Federal jurisdiction; or removing,
cutting, digging up, or damaging or
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destroying the species on any area
under Federal jurisdiction in knowing
violation of any law or regulation of any
State or in the course of any violation
of a State criminal trespass law. Almost
30 percent of occupied Wright’s marsh
thistle habitat is on Federal land.
As discussed in the Summary of
Biological Status and Threats (above),
habitat loss and modification are
affecting the viability of Wright’s marsh
thistle. A range of activities that occur
on Federal land have the potential to
impact the thistle, including changes in
water availability, ungulate grazing, and
oil and gas development. The regulation
of these activities through this 4(d) rule
would help enhance the conservation of
Wright’s marsh thistle by preserving the
species’ remaining populations on
Federal lands and decrease synergistic,
negative effects from other stressors. As
a whole, the proposed 4(d) rule would
help in the efforts to recover the species.
We may issue permits to carry out
otherwise prohibited activities,
including those described above,
involving threatened plants under
certain circumstances. Regulations
governing permits for threatened plants
are codified at 50 CFR 17.72, which
states that ‘‘the Director may issue a
permit authorizing any activity
otherwise prohibited with regard to
threatened species.’’ That regulation
also states, ‘‘The permit shall be
governed by the provisions of this
section unless a special rule applicable
to the plan is provided in sections 17.73
to 17.78.’’ We interpret that second
sentence to mean that permits for
threatened species are governed by the
provisions of section 17.72 unless a
special rule provides otherwise. We
recently promulgated revisions to
section 17.71 providing that section
17.71 will no longer apply to plants
listed as threatened in the future. We
did not intend for those revisions to
limit or alter the applicability of the
permitting provisions in section 17.72,
or to require that every special rule spell
out any permitting provisions that apply
to that species and special rule. To the
contrary, we anticipate that permitting
provisions would generally be similar or
identical for most species, so applying
the provisions of section 17.72 unless a
special rule provides otherwise would
likely avoid substantial duplication.
Moreover, this interpretation brings
section 17.72 in line with the
comparable provision for wildlife at 50
CFR 17.32, in which the second
sentence states, ‘‘Such permit shall be
governed by the provisions of this
section unless a special rule applicable
to the wildlife, appearing in sections
17.40 to 17.48, of this part provides
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otherwise.’’ Under 50 CFR 17.12, with
regard to threatened plants, a permit
may be issued for the following
purposes: Scientific purposes, to
enhance propagation or survival, for
economic hardship, for botanical or
horticultural exhibition, for educational
purposes, or other purposes consistent
with the purposes of the Act. Additional
statutory exemptions from the
prohibitions are found in sections 9 and
10 of the Act.
The Service recognizes the special
and unique relationship with our state
natural resource agency partners in
contributing to conservation of listed
species. State agencies often possess
scientific data and valuable expertise on
the status and distribution of
endangered, threatened, and candidate
species of wildlife and plants. State
agencies, because of their authorities
and their close working relationships
with local governments and
landowners, are in a unique position to
assist the Services in implementing all
aspects of the Act. In this regard, section
6 of the Act provides that the Services
shall cooperate to the maximum extent
practicable with the States in carrying
out programs authorized by the Act.
Therefore, any qualified employee or
agent of a State conservation agency
which is a party to a cooperative
agreement with the Service in
accordance with section 6(c) of the Act,
who is designated by his or her agency
for such purposes, would be able to
conduct activities designed to conserve
Wright’s marsh thistle that may result in
otherwise prohibited activities without
additional authorization.
Nothing in this proposed 4(d) rule
would change in any way the recovery
planning provisions of section 4(f) of the
Act, the consultation requirements
under section 7 of the Act, or the ability
of the Service to enter into partnerships
for the management and protection of
Wright’s marsh thistle. However,
interagency cooperation may be further
streamlined through planned
programmatic consultations for the
species between Federal agencies and
the Service, where appropriate. We ask
the public, particularly State agencies
and other interested stakeholders that
may be affected by the proposed 4(d)
rule, to provide comments and
suggestions regarding additional
guidance and methods that the Service
could provide or use, respectively, to
streamline the implementation of this
proposed 4(d) rule (see Information
Requested, above).
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III. Proposed Designation of Critical
Habitat
Background
Critical habitat is defined in section 3
of the Act as:
(1) The specific areas within the
geographical area occupied by the
species, at the time it is listed in
accordance with the Act, on which are
found those physical or biological
features.
(a) Essential to the conservation of the
species, and
(b) Which may require special
management considerations or
protection; and
(2) Specific areas outside the
geographical area occupied by the
species at the time it is listed, upon a
determination that such areas are
essential for the conservation of the
species.
Our regulations at 50 CFR 424.02
define the geographical area occupied
by the species as an area that may
generally be delineated around species’
occurrences, as determined by the
Secretary (i.e., range). Such areas may
include those areas used throughout all
or part of the species’ life cycle, even if
not used on a regular basis (e.g.,
migratory corridors, seasonal habitats,
and habitats used periodically, but not
solely by vagrant individuals).
Conservation, as defined under
section 3 of the Act, means to use and
the use of all methods and procedures
that are necessary to bring an
endangered or threatened species to the
point at which the measures provided
pursuant to the Act are no longer
necessary. Such methods and
procedures include, but are not limited
to, all activities associated with
scientific resources management such as
research, census, law enforcement,
habitat acquisition and maintenance,
propagation, live trapping, and
transplantation, and, in the
extraordinary case where population
pressures within a given ecosystem
cannot be otherwise relieved, may
include regulated taking.
Critical habitat receives protection
under section 7 of the Act through the
requirement that Federal agencies
ensure, in consultation with the Service,
that any action they authorize, fund, or
carry out is not likely to result in the
destruction or adverse modification of
critical habitat. The designation of
critical habitat does not affect land
ownership or establish a refuge,
wilderness, reserve, preserve, or other
conservation area. Such designation
does not allow the government or public
to access private lands. Such
designation does not require
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implementation of restoration, recovery,
or enhancement measures by nonFederal landowners. Where a landowner
requests Federal agency funding or
authorization for an action that may
affect a listed species or critical habitat,
the Federal agency would be required to
consult with the Service under section
7(a)(2) of the Act. However, even if the
Service were to conclude that the
proposed activity would result in
destruction or adverse modification of
the critical habitat, the Federal action
agency and the landowner are not
required to abandon the proposed
activity, or to restore or recover the
species; instead, they must implement
‘‘reasonable and prudent alternatives’’
to avoid destruction or adverse
modification of critical habitat.
Under the first prong of the Act’s
definition of critical habitat, areas
within the geographical area occupied
by the species at the time it was listed
are included in a critical habitat
designation if they contain physical or
biological features (1) which are
essential to the conservation of the
species and (2) which may require
special management considerations or
protection. For these areas, critical
habitat designations identify, to the
extent known using the best scientific
and commercial data available, those
physical or biological features that are
essential to the conservation of the
species (such as space, food, cover, and
protected habitat). In identifying those
physical or biological features that occur
in specific areas, we focus on the
specific features that are essential to
support the life-history needs of the
species, including, but not limited to,
water characteristics, soil type,
geological features, prey, vegetation,
symbiotic species, or other features. A
feature may be a single habitat
characteristic, or a more complex
combination of habitat characteristics.
Features may include habitat
characteristics that support ephemeral
or dynamic habitat conditions. Features
may also be expressed in terms relating
to principles of conservation biology,
such as patch size, distribution
distances, and connectivity.
Under the second prong of the Act’s
definition of critical habitat, we can
designate critical habitat in areas
outside the geographical area occupied
by the species at the time it is listed,
upon a determination that such areas
are essential for the conservation of the
species. When designating critical
habitat, the Secretary will first evaluate
areas occupied by the species. The
Secretary will only consider unoccupied
areas to be essential where a critical
habitat designation limited to
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geographical areas occupied by the
species would be inadequate to ensure
the conservation of the species. In
addition, for an unoccupied area to be
considered essential, the Secretary must
determine that there is a reasonable
certainty both that the area will
contribute to the conservation of the
species and that the area contains one
or more of those physical or biological
features essential to the conservation of
the species.
Section 4 of the Act requires that we
designate critical habitat on the basis of
the best scientific data available.
Further, our Policy on Information
Standards Under the Endangered
Species Act (published in the Federal
Register on July 1, 1994 (59 FR 34271)),
the Information Quality Act (section 515
of the Treasury and General
Government Appropriations Act for
Fiscal Year 2001 (Pub. L. 106–554; H.R.
5658)), and our associated Information
Quality Guidelines, provide criteria,
establish procedures, and provide
guidance to ensure that our decisions
are based on the best scientific data
available. They require our biologists, to
the extent consistent with the Act and
with the use of the best scientific data
available, to use primary and original
sources of information as the basis for
recommendations to designate critical
habitat.
When we are determining which areas
should be designated as critical habitat,
our primary source of information is
generally the information from the SSA
report and information developed
during the listing process for the
species. Additional information sources
may include any generalized
conservation strategy, criteria, or outline
that may have been developed for the
species; the recovery plan for the
species; articles in peer-reviewed
journals; conservation plans developed
by States and counties; scientific status
surveys and studies; biological
assessments; other unpublished
materials; or experts’ opinions or
personal knowledge.
Habitat is dynamic, and species may
move from one area to another over
time. We recognize that critical habitat
designated at a particular point in time
may not include all of the habitat areas
that we may later determine are
necessary for the recovery of the
species. For these reasons, a critical
habitat designation does not signal that
habitat outside the designated area is
unimportant or may not be needed for
recovery of the species. Areas that are
important to the conservation of the
species, both inside and outside the
critical habitat designation, will
continue to be subject to: (1)
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Conservation actions implemented
under section 7(a)(1) of the Act; (2)
regulatory protections afforded by the
requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their
actions are not likely to jeopardize the
continued existence of any endangered
or threatened species; and, (3) the Act’s
prohibitions on certain actions that may
affect the species or its habitat.
Federally funded or permitted projects
affecting listed species outside their
designated critical habitat areas may
still result in jeopardy findings in some
cases. These protections and
conservation tools will continue to
contribute to recovery of this species.
Similarly, critical habitat designations
made on the basis of the best available
information at the time of designation
will not control the direction and
substance of future recovery plans,
habitat conservation plans, or other
species conservation planning efforts if
new information available at the time of
these planning efforts calls for a
different outcome.
Prudency Determination
Section 4(a)(3) of the Act, as
amended, and implementing regulations
(50 CFR 424.12), require that, to the
maximum extent prudent and
determinable, the Secretary shall
designate critical habitat at the time the
species is determined to be an
endangered or threatened species. Our
regulations (50 CFR 424.12(a)(1)) state
that the Secretary may, but is not
required to, determine that a
designation would not be prudent in the
following circumstances:
(i) The species is threatened by taking
or other human activity and
identification of critical habitat can be
expected to increase the degree of such
threat to the species;
(ii) The present or threatened
destruction, modification, or
curtailment of a species’ habitat or range
is not a threat to the species, or threats
to the species’ habitat stem solely from
causes that cannot be addressed through
management actions resulting from
consultations under section 7(a)(2) of
the Act;
(iii) Areas within the jurisdiction of
the United States provide no more than
negligible conservation value, if any, for
a species occurring primarily outside
the jurisdiction of the United States;
(iv) No areas meet the definition of
critical habitat; or
(v) The Secretary otherwise
determines that designation of critical
habitat would not be prudent based on
the best scientific data available.
As discussed earlier in this document,
there is currently no imminent threat of
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collection or vandalism identified under
Factor B for this species, and
identification and mapping of critical
habitat is not expected to initiate any
such threat. In our SSA and proposed
listing determination for Wright’s marsh
thistle, we determined that the present
or threatened destruction, modification,
or curtailment of habitat or range is a
threat to Wright’s marsh thistle and that
those threats in some way can be
addressed by section 7(a)(2)
consultation measures. The species
occurs wholly in the jurisdiction of the
United States, and we are able to
identify areas that meet the definition of
critical habitat. Therefore, because none
of the circumstances enumerated in our
regulations at 50 CFR 424.12(a)(1) has
been met and because there are no other
circumstances the Secretary has
identified for which this designation of
critical habitat would be not prudent,
we have determined that the
designation of critical habitat is prudent
for Wright’s marsh thistle.
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Critical Habitat Determinability
Having determined that designation is
prudent, under section 4(a)(3) of the Act
we must find whether critical habitat for
Wright’s marsh thistle is determinable.
Our regulations at 50 CFR 424.12(a)(2)
state that critical habitat is not
determinable when one or both of the
following situations exist:
(i) Data sufficient to perform required
analyses are lacking, or
(ii) The biological needs of the species
are not sufficiently well known to
identify any area that meets the
definition of ‘‘critical habitat.’’
When critical habitat is not
determinable, the Act allows the Service
an additional year to publish a critical
habitat designation (16 U.S.C.
1533(b)(6)(C)(ii)).
We reviewed the available
information pertaining to the biological
needs of the species and habitat
characteristics where this species is
located. This and other information
represent the best scientific data
available and led us to conclude that the
designation of critical habitat is
determinable for Wright’s marsh thistle.
Physical or Biological Features
In accordance with section 3(5)(A)(i)
of the Act and regulations at 50 CFR
424.12(b), in determining which areas
within the geographical area occupied
by the species at the time of listing to
designate as critical habitat, we consider
the physical or biological features that
are essential to the conservation of the
species and which may require special
management considerations or
protection. The regulations at 50 CFR
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424.02 define ‘‘physical or biological
features essential to the conservation of
the species’’ as the features that occur in
specific areas and that are essential to
support the life-history needs of the
species, including, but not limited to,
water characteristics, soil type,
geological features, sites, prey,
vegetation, symbiotic species, or other
features. A feature may be a single
habitat characteristic or a more complex
combination of habitat characteristics.
Features may include habitat
characteristics that support ephemeral
or dynamic habitat conditions. Features
may also be expressed in terms relating
to principles of conservation biology,
such as patch size, distribution
distances, and connectivity. For
example, physical features essential to
the conservation of the species might
include gravel of a particular size
required for spawning, alkali soil for
seed germination, protective cover for
migration, or susceptibility to flooding
or fire that maintains necessary earlysuccessional habitat characteristics.
Biological features might include prey
species, forage grasses, specific kinds or
ages of trees for roosting or nesting,
symbiotic fungi, or a particular level of
nonnative species consistent with
conservation needs of the listed species.
The features may also be combinations
of habitat characteristics and may
encompass the relationship between
characteristics or the necessary amount
of a characteristic needed to support the
life history of the species.
In considering whether features are
essential to the conservation of the
species, the Service may consider an
appropriate quality, quantity, and
spatial and temporal arrangement of
habitat characteristics in the context of
the life-history needs, condition, and
status of the species. These
characteristics include, but are not
limited to:
(1) Space for individual and
population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or
other nutritional or physiological
requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or
rearing (or development) of offspring;
and
(5) Habitats that are protected from
disturbance.
habitat should include seeps, springs,
cienegas, and streams spreading water
normally both above and below ground,
with surface or subsurface water flow.
The water present in this habitat should
be sufficient to allow for permanent root
saturation of Wright’s marsh thistle in
order to provide conditions needed for
successful reproduction and survival.
Alkaline soils are required by all four
life stages of Wright’s marsh thistle’s life
cycle: Seeds, seedlings, rosettes, and
mature plants. These soils are typically
found associated with alkaline springs
and seeps ranging from low desert up to
ponderosa pine forest. Often, water may
be available on the landscape in a
variety of riparian areas; however,
without the presence of alkaline soils in
conjunction with water availability,
Wright’s marsh thistle is unlikely to
maintain viability.
Full sunlight is necessary for
development of rosettes into mature
plants, as well as the survival of mature
plants. Optimal habitat includes areas
which provide access to sufficient
sunlight exposure with no obstructions
of sunlight during most life stages of
Wright’s marsh thistle. These areas
should not have dense vegetative cover,
which creates competition for sunlight
and can negatively impact maturation
and flowering of the thistle.
Food, Water, Air, Light, Minerals, or
Other Nutritional or Physiological
Requirements
Water availability is a requirement for
three of the four life stages of Wright’s
marsh thistle’s life cycle: Seedlings,
rosettes, and mature plants. Optimal
We derive the specific physical or
biological features essential to the
conservation of Wright’s marsh thistle
from studies of the species’ habitat,
ecology, and life history as described
below. Additional information can be
found in the SSA report (USFWS 2017,
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Sites for Breeding, Reproduction, or
Rearing (or Development) of Offspring
Diverse native floral communities are
necessary to attract pollinators in order
to complete cross pollination of
Wright’s marsh thistle plants. These
communities vary depending on
location but may include bulrush
(Scirpus spp.), beaked spikerush
(Eleocharis rostellata), Pecos sunflower
(Helianthus paradoxus), rush (Juncus
spp.), cattail (Typha spp.), and other
native flowering plants (Sivinski 1996,
pp. 2–4). Many generalist pollinators
may visit Wright’s marsh thistle
(Sivinski 2017, entire). The most
common pollinators of the thistle are
bees, especially bumble bees (Bombus
spp.) (Sivinski 2017, entire). A diverse
native floral community ensures
sufficient pollinators to promote cross
pollination within and among patches
of Wright’s marsh thistle.
Summary of Essential Physical or
Biological Features
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p. 39) available on https://
www.regulations.gov under Docket No.
FWS–R2–ES–2018–0071). We have
determined that the following physical
or biological features are essential to the
conservation of Wright’s marsh thistle:
• Water-saturated soils with surface
or subsurface water flow that allows
permanent root saturation and seed
germination;
• Alkaline soils;
• Full sunlight; and
• Diverse floral communities to
attract pollinators.
Special Management Considerations or
Protection
When designating critical habitat, we
assess whether the specific areas within
the geographical area occupied by the
species at the time of listing contain
features which are essential to the
conservation of the species and which
may require special management
considerations or protection. As
mentioned above, in the case of Wright’s
marsh thistle, these features include
water-saturated soils with surface or
subsurface water flow that allows
permanent root saturation and seed
germination, alkaline soils, full sunlight,
and diverse floral communities to attract
pollinators. The features may require
special management considerations or
protection to reduce the following
threats: Ground and surface water
depletion, increasing drought and
changes in climate change, livestock
grazing, oil and gas development and
mining, and native and nonnative
plants. Localized stressors may also
include herbicide use and mowing. The
species occupies small areas of seeps,
springs, and wetland habitat in an arid
region that is experiencing drought as
well as ongoing and future water
withdrawals. The species’ highly
specific requirements of saturated soils
with surface or subsurface water flow
make it particularly vulnerable to
desiccation and loss of suitable habitat.
Furthermore, the thistle’s need for full
sunlight makes it particularly
vulnerable to native and nonnative grass
planting and habitat encroachment.
Special management considerations
or protections are required within
critical habitat areas to address these
threats. Management activities that
could ameliorate these threats include,
but are not limited to: (1) Conservation
efforts to ensure sufficient water
availability; (2) managing livestock
grazing via the use of exclosures; (3)
control of native and nonnative plants
via controlled burning or mechanical
treatments; (4) spill prevention and
groundwater protection during oil and
gas development and mining; (5)
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watershed/wetland restoration efforts;
and (6) efforts to restore a diverse floral
community sufficient to attract
pollinators.
These management activities would
protect the physical or biological
features for Wright’s marsh thistle by
providing for surface or subsurface
water flow for permanent root
saturation, soil alkalinity necessary for
all life stages, the availability of direct
sunlight for plant development, and
habitat for pollinators to complete cross
pollination of the thistle. Additionally,
management of critical habitat lands
would help limit the impacts of current
risks to population viability.
Criteria Used To Identify Critical
Habitat
As required by section 4(b)(2) of the
Act, we use the best scientific and
commercial data available to designate
critical habitat. In accordance with the
Act and our implementing regulations at
50 CFR 424.12(b), we review available
information pertaining to the habitat
requirements of the species and identify
specific areas within the geographical
area occupied by the species at the time
of listing and any specific areas outside
the geographical area occupied by the
species to be considered for designation
as critical habitat. We are not currently
proposing to designate any areas outside
the geographical area occupied by the
species because we did not find any
areas that were essential for the
conservation of the species.
When we are determining which areas
should be designated as critical habitat,
our primary source of information is
generally the SSA report and
information developed during the
listing process for the species.
Additional information sources may
include any generalized conservation
strategy, criteria, or outline that may
have been developed for the species;
articles in peer-reviewed journals;
conservation plans developed by States
and counties; scientific status surveys
and studies; biological assessments;
other unpublished materials; or experts’
opinions or personal knowledge. In this
case, we used existing occurrence data
for Wright’s marsh thistle and
information on the habitat and
ecosystems upon which the species
depends. These sources of information
included, but were not limited to:
(1) Data used to prepare the species
status assessment and this proposed
rule to list the species;
(2) Information from biological
surveys;
(3) Various agency reports and
databases;
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(4) Information from the U.S. Forest
Service and other cooperators;
(5) Information from species experts;
(6) Data and information presented in
academic research theses; and
(7) Regional Geographic Information
System (GIS) data (such as species
occurrence data, land use, topography,
aerial imagery, soil data, wetland data,
and land ownership maps) for area
calculations and mapping.
Areas Occupied at the Time of Listing
The proposed critical habitat
designation includes currently occupied
sites within the species’ historical range
that have retained the necessary
physical and biological features that
will allow for the maintenance and
expansion of existing populations.
Wright’s marsh thistle was historically
known to occur in an additional site in
Arizona (Sivinski 2012, p. 2). The single
location in Arizona was collected in
1851 from San Bernardino Cienega,
which straddles the international border
with Mexico; the location no longer has
suitable wetland habitat on the Arizona
side of the line (Baker 2011, p. 7), and
we do not consider the site essential for
the conservation of the thistle because
of the lack of suitable habitat and very
low restoration potential. Ten historical
occurrences occurred in New Mexico,
but in a recent search effort at one of the
sites (Lake County), the thistle was not
found (Sivinski 2011, p. 40) and the
habitat was found to be converted to an
impervious surface. Another of the 10
records (Rattlesnake Springs, Eddy
County) is now thought to be a hybrid
between Wright’s marsh thistle and
Texas thistle (C. texanum) (NMRPTC
2009, p. 2), and the site where it was
recorded is now a golf course. We do
not consider either of these two sites in
New Mexico to be essential for the
conservation of the thistle, because the
species is no longer present, the habitat
is no longer available, or the species was
misidentified. However, the remaining
eight locations in New Mexico meet the
definition of areas occupied by the
thistle at the time of listing; they are:
Santa Rosa, Guadalupe County; Bitter
Lake NWR, Chaves County; Blue Spring,
Eddy County; La Luz Canyon, Karr/
Haynes Canyon, Silver Springs, and
Tularosa Creek, Otero County; and
Alamosa Creek, Socorro County.
In summary, for areas within the
geographic area occupied by the species
at the time of listing, we delineated
critical habitat unit boundaries using
the following process:
(1) We obtained point observations of
all currently occupied areas;
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(2) We drew minimum convex
polygons around the point observations;
and
(3) We expanded the polygons to
include all adjacent areas containing the
essential physical and biological
features (specifically the wetted area/
moist soil outside of highly vegetated
locations) to support life-history
processes essential to the conservation
of the species.
When determining proposed critical
habitat boundaries, we made every
effort to avoid including developed
areas such as lands covered by
buildings, pavement, and other
structures because such lands lack
physical or biological features necessary
for Wright’s marsh thistle. The scale of
the maps we prepared under the
parameters for publication within the
Code of Federal Regulations may not
reflect the exclusion of such developed
lands. Any such lands inadvertently left
inside critical habitat boundaries shown
on the maps of this proposed rule have
been excluded by text in the proposed
rule and are not proposed for
designation as critical habitat.
Therefore, if the critical habitat is
finalized as proposed, a Federal action
involving these lands would not trigger
section 7 consultation with respect to
critical habitat and the requirement of
no adverse modification unless the
specific action would affect the physical
or biological features in the adjacent
critical habitat.
We propose for designation as critical
habitat lands that we have determined
are occupied at the time of listing and
contain one or more of the physical or
biological features that are essential to
support life-history processes of the
species. We are not proposing to
designate any areas that are not
currently occupied by the species.
Eight units and 13 subunits are
proposed for designation based on one
or more of the physical or biological
features being present to support
Wright’s marsh thistle’s life-history
processes. All eight units contain all of
the identified physical or biological
features and support multiple lifehistory processes. Some subunits
contain only some of the physical or
biological features necessary to support
Wright’s marsh thistle’s particular use of
that habitat.
The proposed critical habitat
designation is defined by the map or
maps, as modified by any accompanying
regulatory text, presented at the end of
this document under Proposed
Regulation Promulgation. We include
more detailed information on the
boundaries of the critical habitat
designation in the preamble of this
document. We will make the
coordinates or plot points or both on
which each map is based available to
the public on https://
www.regulations.gov at Docket No.
FWS–R2–ES–2018–0071 and on the
New Mexico Ecological Services’
website at https://www.fws.gov/
southwest/es/NewMexico/index.cfm.
Proposed Critical Habitat Designation
We propose to designate 64.3 ha (159
ac) in 8 units and 13 subunits as critical
habitat for Wright’s marsh thistle. The
critical habitat areas we describe below
constitute our current best assessment of
areas that meet the definition of critical
habitat for the species. Table 3 provides
the approximate area of each proposed
critical habitat unit. Table 4 breaks
down the approximate percentage and
size of the total critical habitat
designation by ownership type. Table 5
provides currently listed species with
occupied habitat on, and designated
critical habitat that overlaps with,
proposed critical habitat for Wright’s
marsh thistle. Species with existing
critical habitat that overlaps with
proposed critical habitat for Wright’s
marsh thistle include the Koster’s
springsnail (Juturnia kosteri), Noel’s
amphipod (Gammarus desperatus),
Roswell springsnail (Pyrgulopsis
roswellensis), Pecos sunflower
(Helianthus paradoxus), and the New
Mexico meadow jumping mouse (Zapus
hudsonius luteus). Other listed species
in the boundaries of proposed critical
habitat include the Alamosa springsnail
(Tryonia alamosae), Chiricahua leopard
frog (Lithobates chiricahuensis), least
tern (Sterna antillarum), and Pecos
gambusia (Gambusia nobilis). Three
other listed species (or their critical
habitat) that are found in close
proximity (<1609 m (1 mi)) to proposed
critical habitat for Wright’s marsh thistle
include the pecos pupfish (Cyprinodon
pecosensis), the Sacramento prickly
poppy (Argemone pinnatisecta), and the
Sacramento Mountains thistle.
TABLE 3—PROPOSED CRITICAL HABITAT UNITS FOR WRIGHT’S MARSH THISTLE
Unit No. and name
Subunit No. and name
Ownership
1—Santa Rosa ...................................
1a—Blue Hole Hatchery ....................
1b—Blue Hole Road South ...............
1c—State Highway 91 North .............
1d—Santa Rosa Ballpark South .......
1e—State Highway 91 South ............
City of Santa Rosa ............................
State ..................................................
State ..................................................
City of Santa Rosa ............................
City of Santa Rosa ............................
Private ................................................
City of Santa Rosa ............................
Private ................................................
City of Santa Rosa ............................
Private ................................................
Private ................................................
U.S. Fish and Wildlife Service ...........
U.S. Fish and Wildlife Service ...........
Tribal ..................................................
U.S. Forest Service ...........................
U.S. Forest Service ...........................
Tribal ..................................................
Private ................................................
Private ................................................
Private ................................................
Private ................................................
1f—Perch Lake ..................................
1g—Sheehan Trust ...........................
1h—Freeman Property ......................
2—Alamosa Springs ...........................
3—Bitter Lake .....................................
jbell on DSKJLSW7X2PROD with PROPOSALS3
4—Tularosa Creek ..............................
5—La Luz Canyon ..............................
6—Silver Springs ................................
7—Karr/Haynes Canyon .....................
8—Blue Springs ..................................
............................................................
3a—NWR Unit 5 ................................
3b—NWR Unit 6 ................................
............................................................
............................................................
............................................................
7a—Haynes Canyon Road ................
7b—Karr Canyon Road .....................
7c—Raven Road ...............................
............................................................
Area
0.93 ha (2.3 ac).
0.45 ha (1.1 ac).
12.2 ha (30.1 ac).
0.97 ha (2.4 ac).
5.9 ha (14.6 ac).
0.78 ha (1.92 ac).
1.9 ha (4.6 ac).
2.4 ha (6.0 ac).
0.18 ha (0.44 ac).
0.91 ha (2.24 ac).
1.58 ha (3.9 ac).
3.16 ha (7.8 ac).
15.9 ha (39.2 ac).
0.65 ha (1.6 ac).
0.01 ha (0.03 ac).
0.38 ha (0.95 ac).
0.23 ha (0.58 ac).
0.008 ha (0.02 ac).
0.73 ha (1.8 ac).
1.05 ha (2.6 ac).
14.04 ha (34.7 ac).
Note: Area estimates reflect all land within critical habitat unit boundaries, and estimates may not sum due to rounding.
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TABLE 4—APPROXIMATE PERCENTAGE AND SIZE OF TOTAL PROPOSED CRITICAL HABITAT DESIGNATION FOR WRIGHT’S
MARSH THISTLE PER OWNERSHIP TYPE
Percent
of total
designation
Ownership type
Private .....................................................................................................................................................
Federal ....................................................................................................................................................
State ........................................................................................................................................................
City ..........................................................................................................................................................
Tribal .......................................................................................................................................................
33.5
30
19.7
15.4
0.004
Size of designation
21.5 ha (53.13 ac).
19.45 ha (48 ac).
12.65 ha (31.26 ac).
9.88 ha (24.4 ac).
0.65 ha (1.6 ac).
TABLE 5—WRIGHT’S MARSH THISTLE PROPOSED CRITICAL HABITAT UNITS AND CO-OCCURRING LISTED SPECIES OR
EXISTING CRITICAL HABITAT
Existing designated critical habitat
for other listed species
(ha (ac) of overlapping critical habitat)
Unit No. and name
Subunit No. and name
Co-occurring listed species
(ha (ac) of overlapping occupied habitat)
1—Santa Rosa ..............
Pecos sunflower (0.42 ha (1.0 ac)) .............................
n/a ................................................................................
Pecos sunflower (0.93 ha (2.3 ac)).
Pecos sunflower (0.45 ha (1.0 ac)).
Pecos sunflower (0.15 ha (0.4 ac)) .............................
Pecos sunflower (12.2 ha (30.0 ac)).
n/a ................................................................................
n/a.
Pecos sunflower (0.15 ha (.04 ac)) .............................
n/a.
2—Alamosa Springs ......
1a—Blue Hole Hatchery ...
1b—Blue Hole Road
South.
1c—State Highway 91
North.
1d—Santa Rosa Ballpark
South.
1e—State Highway 91
South.
1f—Perch Lake .................
1g—Sheehan Trust ..........
1h—Freeman Property .....
...........................................
n/a.
n/a.
n/a.
n/a.
3—Bitter Lake ................
3a—NWR Unit 5 ...............
Pecos sunflower (0.03 ha (.07 ac)) .............................
n/a ................................................................................
n/a ................................................................................
Alamosa springsnail (1.58 ha (3.9 ac)); Chiricahua
leopard frog (1.58 ha (3.9 ac)).
Least tern (0.98 ha (2.4 ac)); (Koster’s springsnail,*
Noel’s amphipod,* Pecos gambusia,* Pecos
pupfish,* Roswell springsnail *).
Koster’s springsnail (2.4 ha (5.9 ac)); Least tern (2.8
ha (6.9 ac)); Roswell springsnail (2.4 ha 5.9 ac));
Noel’s amphipod (2.4 ha (5.9 ac)); (Pecos
gambusia,* Pecos pupfish *).
n/a ................................................................................
(Sacramento prickly poppy *) .......................................
New Mexico meadow jumping mouse (0.38 ha (0.9
ac)); (Sacramento Mountains thistle *).
n/a ................................................................................
n/a ................................................................................
n/a ................................................................................
Pecos gambusia (11.7 ha (28.9 ac)) ...........................
3b—NWR Unit 6 ...............
4—Tularosa Creek ........
5—La Luz Canyon ........
6—Silver Springs ...........
...........................................
...........................................
...........................................
7—Karr/Haynes Canyon
7a—Haynes Canyon Road
7b—Karr Canyon Road ....
7c—Raven Road ..............
...........................................
8—Blue Springs ............
Pecos sunflower (3.16 ha (7.8 ac)).
Koster’s springsnail (2.4 ha (5.9 ac)); Pecos sunflower (15.9 ha (39.3 ac)); Roswell springsnail (2.4
ha (5.9 ac)); Noel’s amphipod (2.4 ha (5.9 ac)).
na.
n/a.
New Mexico meadow jumping mouse (0.38 ha (0.9
ac)).
n/a.
n/a.
n/a.
n/a.
* Species and/or critical habitat found in close proximity (<1,609 m (1 mi)) critical habitat unit, but not overlapping exactly.
We present brief descriptions of all
units below and reasons why they meet
the definition of critical habitat for
Wright’s marsh thistle, below.
jbell on DSKJLSW7X2PROD with PROPOSALS3
Unit 1: Santa Rosa
Unit 1 consists of eight subunits
comprising 26.6 ha (65.7 ac) in
Guadalupe County, New Mexico. This
unit consists of land owned by the City
of Santa Rosa, the State of New Mexico,
and private landowners. This unit
partially overlaps with occupied habitat
and designated critical habitat for the
federally threatened Pecos sunflower.
Subunit 1a: Blue Hole Hatchery
Subunit 1a consists of 11 small land
parcels comprising 0.93 ha (2.3 ac) in
Guadalupe County, New Mexico. This
subunit lies north of Blue Hole Road on
City of Santa Rosa property at the
abandoned Blue Hole Hatchery. Special
management considerations or
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protection may be required in Subunit
1a to address ground and surface water
depletion, as well as native and
nonnative plant invasion. Such special
management or protection may include
conservation efforts to ensure water
availability, along with decreasing
competition with native and nonnative
plants via prescribed burning and
mechanical treatments, if necessary.
Special management or protection may
also include watershed/wetland
restoration efforts.
Subunit 1b: Blue Hole Road South
Subunit 1b consists of a small, 0.45ha (1.1-ac) land parcel in Guadalupe
County, New Mexico. This subunit lies
south of Blue Hole Road and east of El
Rito Creek on State of New Mexico land,
which is an undeveloped portion of a
wetland preserve. Special management
considerations or protection may be
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required in Subunit 1b to address
ground and surface water depletion, as
well as native and nonnative invasion.
Such special management or protection
may include conservation efforts to
ensure water availability, along with
decreasing competition with native and
nonnative plants via prescribed burning
and mechanical treatments, if necessary.
Special management or protection may
also include watershed/wetland
restoration efforts.
Subunit 1c: State Highway 91 North
Subunit 1c consists of 12.2 ha (30.1
ac) in Guadalupe County, New Mexico.
This subunit lies north of State Highway
91, near Subunit 1b on State of New
Mexico land, which is an undeveloped
portion of a wetland preserve. Special
management considerations or
protection may be required in Subunit
1c to address ground and surface water
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depletion, as well as native and
nonnative plant invasion. Such special
management or protection may include
conservation efforts to ensure water
availability, along with decreasing
competition with native and nonnative
plants via prescribed burning and
mechanical treatments, if necessary.
Special management or protection may
also include watershed/wetland
restoration efforts.
Subunit 1d: Santa Rosa Ballpark South
Subunit 1d consists of two small land
parcels comprising 0.97 ha (2.4 ac) in
Guadalupe County, New Mexico. This
subunit lies south of the City of Santa
Rosa ballpark, on an undeveloped
portion of City of Santa Rosa land.
Special management considerations or
protection may be required in Subunit
1d to address ground and surface water
depletion, as well as native and
nonnative invasion. Such special
management or protection may include
conservation efforts to ensure water
availability, along with decreasing
competition with native and nonnative
plants via prescribed burning and
mechanical treatments, if necessary.
Special management or protection may
also include watershed/wetland
restoration efforts. Other special
management considerations or
protection may be required to address
localized stressors from herbicide use
and mowing in recreational areas.
jbell on DSKJLSW7X2PROD with PROPOSALS3
Subunit 1e: State Highway 91 South
Subunit 1e consists of 6.7 ha (16.5 ac)
in Guadalupe County, New Mexico.
This subunit lies south of State Highway
91 on City of Santa Rosa and private
lands. Special management
considerations or protection may be
required in Subunit 1e to address
ground and surface water depletion, as
well as native and nonnative plant
invasion. Such special management or
protection may include conservation
efforts to ensure water availability,
along with decreasing competition with
native and nonnative plants via
prescribed burning and mechanical
treatments, if necessary. Special
management or protection may also
include watershed/wetland restoration
efforts.
Subunit 1f: Perch Lake
Subunit 1f consists of 1.9 ha (4.6 ac)
in Guadalupe County, New Mexico.
This subunit includes most of the shores
of Perch Lake on City of Santa Rosa
property, extending south into an
undeveloped area. Special management
considerations or protection may be
required in Subunit 1f to address
ground and surface water depletion, as
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well as native and nonnative plant
invasion. Such special management or
protection may include conservation
efforts to ensure water availability,
along with decreasing competition with
native and nonnative plants via
prescribed burning and mechanical
treatments, if necessary. Special
management or protection may also
include watershed/wetland restoration
efforts. Other special management
considerations or protection may be
required to address localized stressors
from herbicide use and mowing in areas
around Perch Lake, which is located
inside the subunit.
Subunit 1g: Sheehan Trust
Subunit 1g consists of 2.4 ha (6.0 ac)
in Guadalupe County, New Mexico.
This subunit lies east of River Road and
the Pecos River on privately owned
lands, which are currently held in a
land trust. Special management
considerations or protection may be
required in Subunit 1g to address
ground and surface water depletion, as
well as native and nonnative plant
invasion. Such special management or
protection may include conservation
efforts to ensure water availability,
along with decreasing competition with
native and nonnative plants via
prescribed burning and mechanical
treatments, if necessary. Special
management or protection may also
include watershed/wetland restoration
efforts. As this property was formerly
grazed and may be grazed again in the
future, special management or
protection may be required to address
impacts of livestock grazing as
appropriate.
Subunit 1h: Freeman Property
Subunit 1h consists of five small
parcels of land comprising 1.09 ha (2.68
ac) in Guadalupe County, New Mexico.
This subunit lies west of Subunit 1g on
City of Santa Rosa property and
privately owned lands. Special
management considerations or
protection may be required in Subunit
1h to address ground and surface water
depletion, as well as native and
nonnative plant invasion. Such special
management or protection may include
conservation efforts to ensure water
availability, along with decreasing
competition with native and nonnative
plants via prescribed burning and
mechanical treatments, if necessary.
Special management or protection may
also include watershed/wetland
restoration efforts.
Unit 2: Alamosa Springs
Unit 2 consists of 1.58 ha (3.9 ac) in
Socorro County, New Mexico. This unit
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61479
lies mostly north of Forest Road 140
along Alamosa Creek, on privately
owned land. This unit entirely overlaps
with occupied habitat for the federally
endangered Alamosa springsnail and
federally threatened Chiricahua leopard
frog. Special management
considerations or protection may be
required in this unit to address ground
and surface water depletion, water
quality, soil alkalinity, and native and
nonnative plant invasion. Such special
management or protection may include
conservation efforts to ensure water
availability, to protect ground water and
soil from contaminants during mining
activities, and to decrease competition
with native and nonnative plants via
prescribed burning and mechanical
treatments, if necessary. Special
management or protection may also
include watershed/wetland restoration
efforts.
Unit 3: Bitter Lake
Unit 3 consists of two subunits
comprising 19.0 ha (47 ac) in Chaves
County, New Mexico, on Bitter Lake
National Wildlife Refuge (NWR). Unit 3
is entirely managed by the U.S. Fish and
Wildlife Service. This unit overlaps
with occupied habitat for the federally
endangered Koster’s springsnail, Noel’s
amphipod, Roswell springsnail, and
least tern. The unit also overlaps with
designated critical habitat for the
Koster’s springsnail, Noel’s amphipod,
Roswell springsnail, and Pecos
sunflower.
Subunit 3a: NWR Unit 5
Subunit 3a consists of 3.16 ha (7.8 ac)
in Chaves County, New Mexico, within
Wetland Management Unit 5 on Bitter
Lake NWR. Special management
considerations or protection may be
required in Subunit 3a to address
ground and surface water depletion,
water quality, soil alkalinity, and native
and nonnative plant invasion. Such
special management or protection may
include conservation efforts to ensure
water availability, spill prevention and
groundwater protection during oil and
gas development, and decreasing
competition with native and nonnative
plants via prescribed burning and
mechanical and herbicide treatments, if
necessary. Special management or
protection may also include watershed/
wetland restoration efforts.
Subunit 3b: NWR Unit 6
Subunit 3b consists of 15.9 ha (39.2
ac) in Chaves County, New Mexico,
within Wetland Management Unit 6 on
Bitter Lake NWR. Special management
considerations or protection may be
required in Subunit 3b to address
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ground and surface water depletion,
water quality, soil alkalinity, and native
and nonnative plant invasion. Such
special management or protection may
include conservation efforts to ensure
water availability, spill prevention and
groundwater protection during oil and
gas development, and decreasing
competition with native and nonnative
plants via prescribed burning and
mechanical and herbicide treatments, if
necessary. Special management or
protection may also include watershed/
wetland restoration efforts.
Unit 4: Tularosa Creek
Unit 4 consists of 0.65 ha (1.6 ac) in
Otero County, New Mexico. This unit
lies along Indian Service Route 10,
north of Tularosa Creek, on land owned
by the Mescalero Apache Tribe. Special
management considerations or
protection may be required in this unit
to address ground and surface water
depletion, as well as native and
nonnative plant invasion. Such special
management or protection may include
conservation efforts to ensure water
availability, along with decreasing
competition with native and nonnative
plants via prescribed burning and
mechanical treatments, if necessary.
Special management or protection may
also include watershed/wetland
restoration efforts.
jbell on DSKJLSW7X2PROD with PROPOSALS3
Unit 5: La Luz Canyon
Unit 5 consists of 0.01 ha (0.03 ac) in
Otero County, New Mexico, on the
Lincoln National Forest. This unit lies
north of La Luz Canyon Road, along La
Luz Creek, on lands managed by the
U.S. Forest Service. Special
management considerations or
protection may be required in this unit
to address ground and surface water
depletion, as well as native and
nonnative plant invasion. Such special
management or protection may include
conservation efforts to ensure water
availability, along with decreasing
competition with native and nonnative
plants via prescribed burning and
mechanical treatments, if necessary.
Special management or protection may
also include watershed/wetland
restoration efforts. As this property has
the potential to be grazed, special
management or protection may be
required to address impacts of livestock
grazing as appropriate.
Unit 6: Silver Springs
Unit 6 consists of 0.62 ha (1.53 ac) in
Otero County, New Mexico. This unit
lies east of State Highway 224, along
Silver Springs Creek. This unit contains
land on the Lincoln National Forest,
which is managed by the U.S. Forest
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Service, and land owned by the
Mescalero Apache Tribe. This unit
overlaps with occupied habitat and
critical habitat for the federally
endangered New Mexico meadow
jumping mouse. Special management
considerations or protection may be
required in this unit to address ground
and surface water depletion, as well as
native and nonnative plant invasion.
Such special management or protection
may include conservation efforts to
ensure water availability, along with
decreasing competition with native and
nonnative plants via prescribed burning
and mechanical treatments, if necessary.
Special management or protection may
also include watershed/wetland
restoration efforts. As this property has
the potential to be grazed, special
management or protection may be
required to address impacts of livestock
grazing as appropriate.
Unit 7: Karr/Haynes Canyon
Unit 7 consists of three subunits that
comprise 1.79 ha (4.42 ac) in Otero
County, New Mexico. This unit consists
of privately owned lands.
Subunit 7a: Haynes Canyon Road
Subunit 7a consists of 0.008 ha (0.02
ac) in Otero County, New Mexico. This
subunit lies south of Haynes Canyon
Road on privately owned lands. Special
management considerations or
protection may be required in Subunit
7a to address ground and surface water
depletion, as well as native and
nonnative plant invasion. Such special
management or protection may include
conservation efforts to ensure water
availability, along with decreasing
competition with native and nonnative
plants via prescribed burning and
mechanical treatments, if necessary.
Special management or protection may
also include watershed/wetland
restoration efforts. As this property has
the potential to be grazed, special
management or protection may be
required to address impacts of livestock
grazing as appropriate.
Subunit 7b: Karr Canyon Road
Subunit 7b consists of two small
parcels comprising 0.73 ha (1.8 ac) in
Otero County, New Mexico. This
subunit lies along either side of Karr
Canyon Road on privately owned lands.
Special management considerations or
protection may be required in Subunit
7b to address ground and surface water
depletion, as well as native and
nonnative plant invasion. Such special
management or protection may include
conservation efforts to ensure water
availability, along with decreasing
competition with native and nonnative
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plants via prescribed burning and
mechanical treatments, if necessary.
Special management or protection may
also include watershed/wetland
restoration efforts. As this property has
the potential to be grazed, special
management or protection may be
required to address impacts of livestock
grazing as appropriate.
Subunit 7c: Raven Road
Subunit 7c consists of two small
parcels comprising 1.05 ha (2.6 ac) in
Otero County, New Mexico. This
subunit lies along either side of Raven
Road on privately owned lands. Special
management considerations or
protection may be required in Subunit
7c to address ground and surface water
depletion, as well as native and
nonnative plant invasion. Such special
management or protection may include
conservation efforts to ensure water
availability, along with decreasing
competition with native and nonnative
plants via prescribed burning and
mechanical treatments, if necessary.
Special management or protection may
also include watershed/wetland
restoration efforts. As this property has
the potential to be grazed, special
management or protection may be
required to address impacts of livestock
grazing as appropriate.
Unit 8: Blue Springs
Unit 8 consists of 14.04 ha (34.7 ac)
in Eddy County, New Mexico. This unit
lies along a small tributary north of the
Black River on privately owned land.
This unit overlaps with occupied
habitat for the federally endangered
Pecos gambusia. Special management
considerations or protection may be
required in this unit to address ground
and surface water depletion, water
quality, soil alkalinity, and native and
nonnative plant invasion. Such special
management or protection may include
conservation efforts to ensure water
availability, spill prevention and
groundwater protection during oil and
gas development, and decreasing
competition with native and nonnative
plants via prescribed burning and
mechanical treatments, if necessary.
Special management or protection may
also include watershed/wetland
restoration efforts.
Effects of Critical Habitat Designation
Section 7
Consultation
Section 7(a)(2) of the Act requires
Federal agencies, including the Service,
to ensure that any action they fund,
authorize, or carry out is not likely to
jeopardize the continued existence of
any endangered species or threatened
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species or result in the destruction or
adverse modification of designated
critical habitat of such species. In
addition, section 7(a)(4) of the Act
requires Federal agencies to confer with
the Service on any agency action which
is likely to jeopardize the continued
existence of any species proposed to be
listed under the Act or result in the
destruction or adverse modification of
proposed critical habitat.
We published a final regulation with
a revised definition of destruction or
adverse modification on August 27,
2019 (84 FR 44976). Destruction or
adverse modification means a direct or
indirect alteration that appreciably
diminishes the value of critical habitat
as a whole for the conservation of a
listed species.
If a Federal action may affect a listed
species or its critical habitat, the
responsible Federal agency (action
agency) must enter into consultation
with us. Examples of actions that are
subject to the section 7 consultation
process are actions on State, tribal,
local, or private lands that require a
Federal permit (such as a permit from
the U.S. Army Corps of Engineers under
section 404 of the Clean Water Act (33
U.S.C. 1251 et seq.) or a permit from the
Service under section 10 of the Act) or
that involve some other Federal action
(such as funding from the Federal
Highway Administration, Federal
Aviation Administration, or the Federal
Emergency Management Agency).
Federal actions not affecting listed
species or critical habitat—and actions
on State, tribal, local, or private lands
that are not federally funded,
authorized, or carried out by a Federal
agency—do not require section 7
consultation.
Compliance with the requirements of
section 7(a)(2) is documented through
our issuance of:
(1) A concurrence letter for Federal
actions that may affect, but are not
likely to adversely affect, listed species
or critical habitat; or
(2) A biological opinion for Federal
actions that may affect and are likely to
adversely affect, listed species or critical
habitat.
When we issue a biological opinion
concluding that a project is likely to
jeopardize the continued existence of a
listed species and/or destroy or
adversely modify critical habitat, we
provide reasonable and prudent
alternatives to the project, if any are
identifiable, that would avoid the
likelihood of jeopardy and/or
destruction or adverse modification of
critical habitat. We define ‘‘reasonable
and prudent alternatives’’ (at 50 CFR
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402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner
consistent with the intended purpose of
the action,
(2) Can be implemented consistent
with the scope of the Federal agency’s
legal authority and jurisdiction,
(3) Are economically and
technologically feasible, and
(4) Would, in the Service Director’s
opinion, avoid the likelihood of
jeopardizing the continued existence of
the listed species and/or avoid the
likelihood of destroying or adversely
modifying critical habitat.
Reasonable and prudent alternatives
can vary from slight project
modifications to extensive redesign or
relocation of the project. Costs
associated with implementing a
reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require
Federal agencies to reinitiate formal
consultation on previously reviewed
actions. These requirements apply when
the Federal agency has retained
discretionary involvement or control
over the action (or the agency’s
discretionary involvement or control is
authorized by law) and, subsequent to
the previous consultation, we have
listed a new species or designated
critical habitat that may be affected by
the Federal action, or the action has
been modified in a manner that affects
the species or critical habitat in a way
not considered in the previous
consultation. In such situations, Federal
agencies sometimes may need to request
reinitiation of consultation with us, but
the regulations also specify some
exceptions to the requirement to
reinitiate consultation on specific land
management plans after subsequently
listing a new species or designating new
critical habitat. See the regulations for a
description of those exceptions.
Application of the ‘‘Adverse
Modification’’ Standard
The key factor related to the
destruction or adverse modification
determination is whether
implementation of the proposed Federal
action directly or indirectly alters the
designated critical habitat in a way that
appreciably diminishes the value of the
critical habitat as a whole for the
conservation of the listed species. As
discussed above, the role of critical
habitat is to support physical or
biological features essential to the
conservation of a listed species and
provide for the conservation of the
species.
Section 4(b)(8) of the Act requires us
to briefly evaluate and describe, in any
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proposed or final regulation that
designates critical habitat, activities
involving a Federal action that may
violate 7(a)(2) of the Act by destroying
or adversely modifying such
designation.
Activities that the Services may,
during a consultation under section
7(a)(2) of the Act, find are likely to
destroy or adversely modify critical
habitat include, but are not limited to:
(1) Actions that would diminish
permanent root saturation. Such
activities could include, but are not
limited to, water diversions and water
withdrawals for agricultural, mineral
mining, or urban purposes. These
activities could reduce Wright’s marsh
thistle’s water availability, and increase
its competition for water resources,
thereby depleting a resource necessary
for the plant’s normal growth and
survival.
(2) Actions that would alter the
alkalinity of the soil. Such activities
could include, but are not limited to, oil
and gas development and mining. These
activities could result in significant
ground disturbance that could alter the
chemical and physical properties of the
soil.
(3) Actions that would diminish the
availability of full sunlight. Such
activities could include, but are not
limited to, vegetation management that
encourages growth of competing native
and nonnative species. These activities
could lead to habitat encroachment
resulting in a decreased availability of
sunlight.
(4) Actions that would decrease the
diversity and abundance of floral
resources and pollinators. Such
activities could include, but are not
limited to, the use of pesticides and
herbicides, livestock grazing, and oil
and gas development and mining. These
activities could lead to direct mortality
of pollinators and diminish the floral
resources available to pollinators.
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) provides that:
‘‘The Secretary shall not designate as
critical habitat any lands or other
geographical areas owned or controlled
by the Department of Defense (DoD), or
designated for its use, that are subject to
an integrated natural resources
management plan (INRMP) prepared
under section 101 of the Sikes Act (16
U.S.C. 670a), if the Secretary determines
in writing that such plan provides a
benefit to the species for which critical
habitat is proposed for designation.’’
There are no DoD lands with a
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completed INRMP within the proposed
critical habitat designation.
Exclusions
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that
the Secretary shall designate and make
revisions to critical habitat on the basis
of the best available scientific data after
taking into consideration the economic
impact, national security impact, and
any other relevant impact of specifying
any particular area as critical habitat.
The Secretary may exclude an area from
critical habitat if he determines that the
benefits of such exclusion outweigh the
benefits of specifying such area as part
of the critical habitat, unless he
determines, based on the best scientific
data available, that the failure to
designate such area as critical habitat
will result in the extinction of the
species. In making that determination,
the statute on its face, as well as the
legislative history, are clear that the
Secretary has broad discretion regarding
which factor(s) to use and how much
weight to give to any factor.
The first sentence in section 4(b)(2) of
the Act requires that we take into
consideration the economic, national
security, or other relevant impacts of
designating any particular area as
critical habitat. We describe below the
process that we undertook for taking
into consideration each category of
impacts and our analyses of the relevant
impacts.
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Consideration of Economic Impacts
Section 4(b)(2) of the Act and its
implementing regulations require that
we consider the economic impact that
may result from a designation of critical
habitat. To assess the probable
economic impacts of a designation, we
must first evaluate specific land uses or
activities and projects that may occur in
the area of the critical habitat. We then
must evaluate the impacts that a specific
critical habitat designation may have on
restricting or modifying specific land
uses or activities for the benefit of the
species and its habitat within the areas
proposed. We then identify which
conservation efforts may be the result of
the species being listed under the Act
versus those attributed solely to the
designation of critical habitat for this
particular species. The probable
economic impact of a proposed critical
habitat designation is analyzed by
comparing scenarios both ‘‘with critical
habitat’’ and ‘‘without critical habitat.’’
The ‘‘without critical habitat’’
scenario represents the baseline for the
analysis, which includes the existing
regulatory and socio-economic burden
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imposed on landowners, managers, or
other resource users potentially affected
by the designation of critical habitat
(e.g., under the Federal listing as well as
other Federal, State, and local
regulations). The baseline, therefore,
represents the costs of all efforts
attributable to the listing of the species
under the Act (i.e., conservation of the
species and its habitat incurred
regardless of whether critical habitat is
designated). The ‘‘with critical habitat’’
scenario describes the incremental
impacts associated specifically with the
designation of critical habitat for the
species. The incremental conservation
efforts and associated impacts would
not be expected without the designation
of critical habitat for the species. In
other words, the incremental costs are
those attributable solely to the
designation of critical habitat, above and
beyond the baseline costs. These are the
costs we use when evaluating the
benefits of inclusion and exclusion of
particular areas from the final
designation of critical habitat should we
choose to conduct a discretionary
4(b)(2) exclusion analysis.
For this particular designation, we
developed an incremental effects
memorandum (IEM) considering the
probable incremental economic impacts
that may result from this proposed
designation of critical habitat. The
information contained in our IEM, along
with the SSA, was then used to develop
a screening analysis of the probable
effects of the designation of critical
habitat for Wright’s marsh thistle
(Industrial Economics, Inc. 2018). We
began by conducting a screening
analysis of the proposed designation of
critical habitat in order to focus our
analysis on the key factors that are
likely to result in incremental economic
impacts. The purpose of the screening
analysis is to filter out the geographic
areas in which the critical habitat
designation is unlikely to result in
probable incremental economic impacts.
In particular, the screening analysis
considers baseline costs (i.e., absent
critical habitat designation) and
includes probable economic impacts
where land and water use may be
subject to conservation plans, land
management plans, best management
practices, or regulations that would
protect the habitat area as a result of the
Federal listing status of the species. The
screening analysis filters out particular
areas of critical habitat that are already
subject to such protections and are,
therefore, unlikely to incur incremental
economic impacts. Ultimately, the
screening analysis allows us to focus
our analysis on evaluating the specific
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areas or sectors that may incur probable
incremental economic impacts as a
result of the designation. The screening
analysis also assesses whether units are
unoccupied by the species and may
require additional management or
conservation efforts as a result of the
critical habitat designation for the
species, which may incur incremental
economic impacts. This screening
analysis, combined with the information
contained in our IEM, is what we
consider our draft economic analysis of
the proposed critical habitat designation
for Wright’s marsh thistle and is
summarized in the narrative below.
Executive Orders (E.O.s) 12866 and
13563 direct Federal agencies to assess
the costs and benefits of available
regulatory alternatives in quantitative
(to the extent feasible) and qualitative
terms. Consistent with the E.O.
regulatory analysis requirements, our
effects analysis under the Act may take
into consideration impacts to both
directly and indirectly affected entities,
where practicable and reasonable. If
sufficient data are available, we assess
to the extent practicable the probable
impacts to both directly and indirectly
affected entities. As part of our
screening analysis, we considered the
types of economic activities that are
likely to occur within the areas likely
affected by the critical habitat
designation.
In our evaluation of the probable
incremental economic impacts that may
result from the proposed designation of
critical habitat for Wright’s marsh
thistle, first we identified, in the IEM
dated March 2, 2018, probable
incremental economic impacts
associated with the following categories
of activities: (1) Water quantity/supply,
(2) oil and gas development and mining,
and (3) livestock grazing. We considered
each industry or category individually.
Additionally, we considered whether
their activities have any Federal
involvement. Critical habitat
designation generally will not affect
activities that do not have any Federal
involvement; under the Act, designation
of critical habitat only affects activities
conducted, funded, permitted, or
authorized by Federal agencies. If we
finalize the listing of Wright’s marsh
thistle, in areas where the species is
present, Federal agencies would already
be required to consult with the Service
under section 7 of the Act on activities
they fund, permit, or implement that
may affect the thistle. If we finalize this
proposed critical habitat designation,
consultations to avoid the destruction or
adverse modification of critical habitat
would be incorporated into the existing
consultation process.
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In our IEM, we attempted to clarify
the distinction between the effects that
will result from the species being listed
and those attributable to the critical
habitat designation (i.e., difference
between the jeopardy and adverse
modification standards) for Wright’s
marsh thistle’s critical habitat. Because
the designation of critical habitat for
Wright’s marsh thistle is being proposed
concurrently with the listing, it has been
our experience that it is more difficult
to discern which conservation efforts
are attributable to the species being
listed and those which will result solely
from the designation of critical habitat.
However, the following specific
circumstances in this case help to
inform our evaluation: (1) The essential
physical or biological features identified
for critical habitat are the same features
essential for the life requisites of the
species and (2) any actions that would
result in sufficient harm or harassment
to constitute jeopardy to Wright’s marsh
thistle would also likely adversely affect
the essential physical or biological
features of critical habitat. The IEM
outlines our rationale concerning this
limited distinction between baseline
conservation efforts and incremental
impacts of the designation of critical
habitat for this species. This evaluation
of the incremental effects has been used
as the basis to evaluate the probable
incremental economic impacts of this
proposed designation of critical habitat.
The Service is proposing to designate
64.3 ha (159 ac) across five New Mexico
counties as critical habitat for Wright’s
marsh thistle. The Service has divided
the proposed critical habitat into eight
units, with some further divided into
subunits. All eight units are considered
occupied because they contain
reproducing populations of the thistle.
We are not proposing to designate any
units of unoccupied habitat.
Approximately 29 percent of the
proposed designation is located on
Federal lands, 20 percent is on Stateowned lands, and 1 percent on land
owned by the Mescalero Tribe. Fifteen
percent of proposed lands are owned by
the City of Santa Rosa, and 35 percent
are privately owned. In these areas, any
actions that may affect the species or its
habitat would also affect designated
critical habitat, and it is unlikely that
any additional conservation efforts
would be recommended to address the
adverse modification standard over and
above those recommended as necessary
to avoid jeopardizing the continued
existence of Wright’s marsh thistle.
Therefore, the potential incremental
economic effects of the critical habitat
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designation are expected to be limited to
administrative costs.
The entities most likely to incur
incremental costs are parties to section
7 consultations, including Federal
action agencies and, in some cases, third
parties, most frequently State agencies
or municipalities. Our analysis of
economic impacts makes the following
assumptions about consultation activity
over the next 10 years, most of which
are more likely to overstate than
understate potential impacts due to the
history of biological assessments and
implementation of project conservation
measures by the action agencies. The
analysis assumes that approximately
five section 7 consultations will occur
annually in the designated critical
habitat, across all eight units, based on
the previous consultation history in the
area. Most of these are anticipated to
occur in areas with Federal lands,
including units 3, 5, and 6, as well as
the large unit 1.
This may overstate the number of
consultations that will occur given
available information on forecast
activity. As stated above, we anticipate
that conservation efforts needed to
avoid adverse modification are likely to
be the same as those needed to avoid
impacts to the species itself. As such,
costs of critical habitat designation for
Wright’s marsh thistle are anticipated to
be limited to administrative costs. We
anticipate that the incremental
administrative costs of addressing
adverse modification of critical habitat
for the species in a section 7
consultation will be minor.
The incremental administrative
burden resulting from the designation of
critical habitat for Wright’s marsh
thistle, based on the anticipated annual
number of consultations and associated
consultation costs, is not expected to
exceed $25,000 in most years. The
designation is unlikely to trigger
additional requirements under State or
local regulations. Furthermore, the
designation is quite small, limited to
64.3 ha (159 ac) in total, with the local
government, municipal, and private
lands limited to 31.33 ha (77.4 ac);
therefore, the designation is not
expected to have significant
perceptional effects. Because the
designation is not expected to result in
incremental conservation efforts for the
species, the designation is also unlikely
to measurably increase the probability
that the species will be conserved, and
benefits are also unlikely to exceed
$25,000 in a given year. In our DEA, we
did not identify any ongoing or future
actions that would warrant additional
recommendations or project
modifications to avoid adversely
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61483
modifying critical habitat above those
we would recommend for avoiding
jeopardy to the species, and we
anticipate minimal change in
management at Bitter Lake NWR and
Lincoln National Forest due to the
designation of critical habitat for
Wright’s marsh thistle.
We are soliciting data and comments
from the public on the DEA, as well as
all aspects of the proposed rule and our
required determinations. During the
development of a final designation, we
will consider any additional economic
impact information we receive during
the public comment period to determine
whether any specific areas should be
excluded from the final critical habitat
designation under authority of section
4(b)(2) and our implementing
regulations at 50 CFR 424.19. In
particular, we may exclude an area from
critical habitat if we determine that the
benefits of excluding the area outweigh
the benefits of including the area,
provided the exclusion will not result in
the extinction of this species.
Consideration of National Security
Impacts
In preparing this proposal, we have
determined that the lands within the
proposed designation of critical habitat
for Wright’s marsh thistle are not
owned, managed, or used by the DoD or
Department of Homeland Security, and,
therefore, we anticipate no impact on
national security or homeland security.
However, during the development of a
final designation we will consider any
additional information received through
the public comment period on the
impacts of the proposed designation on
national security or homeland security
to determine whether any specific areas
should be excluded from the final
critical habitat designation under
authority of section 4(b)(2) and our
implementing regulations at 50 CFR
424.19.
Consideration of Other Relevant
Impacts
Under section 4(b)(2) of the Act, we
consider any other relevant impacts, in
addition to economic impacts and
impacts on national security. We
consider a number of factors including
whether there are permitted
conservation plans covering the species
in the area such as Habitat Conservation
Plans, safe harbor agreements, or
candidate conservation agreements with
assurances, or whether there are nonpermitted conservation agreements and
partnerships that would be encouraged
by designation of, or exclusion from,
critical habitat. In addition, we look at
the existence of tribal conservation
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plans and partnerships and consider the
government-to-government relationship
of the United States with tribal entities.
We also consider any social impacts that
might occur because of the designation.
In preparing this proposal, we have
determined that there are currently no
permitted conservation plans or other
management plans for Wright’s marsh
thistle. Only 0.88 ha (2.18 ac) of
proposed critical habitat lands for
Wright’s marsh thistle belong to the
Mescalero Apache Tribe; we have
initiated coordination with the Tribe
regarding the proposed critical habitat
designation and will continue to offer
government-to-government consultation
with them throughout development of
the final rulemaking. We anticipate no
impact on tribal lands, partnerships, or
permitted management plans from this
proposed critical habitat designation.
There are no adequate partnerships,
Tribal partnerships, management, or
protection afforded by cooperative
management efforts sufficient to provide
for the conservation of the species.
There are no areas whose exclusion
would result in conservation, or in the
continuation, strengthening, or
encouragement of partnerships.
Summary of Exclusions
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After analyzing these potential
impacts, we are not considering any
exclusions at this time from the
proposed designation under section
4(b)(2) of the Act based on economic
impacts, national security impacts, or
other relevant impacts such as
partnerships, management, or protection
afforded by cooperative management
efforts. All areas proposed for critical
habitat will benefit from additional
regulation for the protection from
destruction or adverse modification as a
result of actions with a Federal nexus.
All areas would see educational benefits
of mapping essential habitat for
recovery of the listed species. During
the development of a final designation,
we will consider any additional
information received through the public
comment period regarding other
relevant impacts to determine whether
any specific areas should be excluded
from the final critical habitat
designation under authority of section
4(b)(2) and our implementing
regulations at 50 CFR 424.19.
Required Determinations
Clarity of the Rule
We are required by Executive Orders
12866 and 12988 and by the
Presidential Memorandum of June 1,
1998, to write all rules in plain
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language. This means that each rule we
publish must:
(1) Be logically organized;
(2) Use the active voice to address
readers directly;
(3) Use clear language rather than
jargon;
(4) Be divided into short sections and
sentences; and
(5) Use lists and tables wherever
possible.
If you feel that we have not met these
requirements, send us comments by one
of the methods listed in ADDRESSES. To
better help us revise the rule, your
comments should be as specific as
possible. For example, you should tell
us the numbers of the sections or
paragraphs that are unclearly written,
which sections or sentences are too
long, the sections where you feel lists or
tables would be useful, etc.
Regulatory Planning and Review—
Executive Orders 12866 and 13563
Executive Order 12866 provides that
the Office of Information and Regulatory
Affairs (OIRA) in the Office of
Management and Budget will review all
significant rules. OIRA has waived their
review regarding their significance
determination of this proposed rule.
Executive Order 13563 reaffirms the
principles of E.O. 12866 while calling
for improvements in the nation’s
regulatory system to promote
predictability, to reduce uncertainty,
and to use the best, most innovative,
and least burdensome tools for
achieving regulatory ends. The
executive order directs agencies to
consider regulatory approaches that
reduce burdens and maintain flexibility
and freedom of choice for the public
where these approaches are relevant,
feasible, and consistent with regulatory
objectives. E.O. 13563 emphasizes
further that regulations must be based
on the best available science and that
the rulemaking process must allow for
public participation and an open
exchange of ideas. We have developed
this rule in a manner consistent with
these requirements.
Regulatory Flexibility Act—5 U.S.C. 601
et seq.
Under the Regulatory Flexibility Act
(RFA; 5 U.S.C. 601 et seq.), as amended
by the Small Business Regulatory
Enforcement Fairness Act of 1996
(SBREFA; 5 U.S.C. 801 et seq.),
whenever an agency is required to
publish a notice of rulemaking for any
proposed or final rule, it must prepare
and make available for public comment
a regulatory flexibility analysis that
describes the effects of the rule on small
entities (i.e., small businesses, small
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organizations, and small government
jurisdictions). However, no regulatory
flexibility analysis is required if the
head of the agency certifies the rule will
not have a significant economic impact
on a substantial number of small
entities. The SBREFA amended the RFA
to require Federal agencies to provide a
certification statement of the factual
basis for certifying that the rule will not
have a significant economic impact on
a substantial number of small entities.
According to the Small Business
Administration, small entities include
small organizations such as
independent nonprofit organizations;
small governmental jurisdictions,
including school boards and city and
town governments that serve fewer than
50,000 residents; and small businesses
(13 CFR 121.201). Small businesses
include manufacturing and mining
concerns with fewer than 500
employees, wholesale trade entities
with fewer than 100 employees, retail
and service-sector businesses with less
than $5 million in annual sales, general
and heavy construction businesses with
less than $27.5 million in annual
business, special trade contractors doing
less than $11.5 million in annual
business, and agricultural businesses
with annual sales less than $750,000. To
determine if potential economic impacts
to these small entities are significant, we
considered the types of activities that
might trigger regulatory impacts under
this designation as well as types of
project modifications that may result. In
general, the term ‘‘significant economic
impact’’ is meant to apply to a typical
small business firm’s business
operations.
The Service’s current understanding
of the requirements under the RFA, as
amended, and following recent court
decisions, is that Federal agencies are
only required to evaluate the potential
incremental impacts of rulemaking on
those entities directly regulated by the
rulemaking itself and are, therefore, not
required to evaluate the potential
impacts to indirectly regulated entities.
The regulatory mechanism through
which critical habitat protections are
realized is section 7 of the Act, which
requires Federal agencies, in
consultation with the Service, to ensure
that any action authorized, funded, or
carried out by the agency is not likely
to destroy or adversely modify critical
habitat. Therefore, under section 7, only
Federal action agencies are directly
subject to the specific regulatory
requirement (avoiding destruction and
adverse modification) imposed by
critical habitat designation.
Consequently, it is our position that
only Federal action agencies will be
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directly regulated by this designation.
There is no requirement under RFA to
evaluate the potential impacts to entities
not directly regulated. Moreover,
Federal agencies are not small entities.
Therefore, because no small entities are
directly regulated by this rulemaking,
the Service certifies that, if made final,
the proposed critical habitat designation
will not have a significant economic
impact on a substantial number of small
entities.
In summary, we have considered
whether the proposed designation
would result in a significant economic
impact on a substantial number of small
entities. For the above reasons and
based on currently available
information, we certify that, if made
final, the proposed critical habitat
designation would not have a significant
economic impact on a substantial
number of small business entities.
Therefore, an initial regulatory
flexibility analysis is not required.
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Reducing Regulation and Controlling
Regulatory Costs—Executive Order
13771
We do not believe this proposed rule
is an E.O. 13771 (‘‘Reducing Regulation
and Controlling Regulatory Costs’’) (82
FR 9339, February 3, 2017) regulatory
action because we believe this rule is
not significant under E.O. 12866;
however, the Office of Information and
Regulatory Affairs has waived their
review regarding their E.O. 12866
significance determination of this
proposed rule.
Energy Supply, Distribution, or Use—
Executive Order 13211
Executive Order 13211 (Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use) requires agencies
to prepare Statements of Energy Effects
when undertaking certain actions. A
significant energy action is one that
promulgates, or is expected to lead to
the promulgation of, a final rule that is
both (1) a significant regulatory action
under E.O. 12866, and (2) likely to have
a significant adverse effect on the
supply, distribution, or use of energy, or
a final rule that is designated by the
Administrator of OIRA as a significant
energy action. OIRA has determined
that this rule is not significant. Further,
in our economic analysis, we did not
find that the designation of this
proposed critical habitat will have an
annual effect on the economy of $100
million or more or significantly affect
energy supplies, distribution, or use due
to the lack of any energy supply or
distribution lines within the proposed
critical habitat designation. Therefore,
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this action is not a significant energy
action, and no Statement of Energy
Effects is required.
Unfunded Mandates Reform Act—2
U.S.C. 1501 et seq.
In accordance with the Unfunded
Mandates Reform Act (2 U.S.C. 1501 et
seq.), we make the following findings:
(1) This rule would not produce a
Federal mandate. In general, a Federal
mandate is a provision in legislation,
statute, or regulation that would impose
an enforceable duty upon State, local, or
tribal governments, or the private sector,
and includes both ‘‘Federal
intergovernmental mandates’’ and
‘‘Federal private sector mandates.’’
These terms are defined in 2 U.S.C.
658(5)–(7). ‘‘Federal intergovernmental
mandate’’ includes a regulation that
‘‘would impose an enforceable duty
upon State, local, or tribal governments’’
with two exceptions. It excludes ‘‘a
condition of Federal assistance.’’ It also
excludes ‘‘a duty arising from
participation in a voluntary Federal
program,’’ unless the regulation ‘‘relates
to a then-existing Federal program
under which $500,000,000 or more is
provided annually to State, local, and
tribal governments under entitlement
authority,’’ if the provision would
‘‘increase the stringency of conditions of
assistance’’ or ‘‘place caps upon, or
otherwise decrease, the Federal
Government’s responsibility to provide
funding,’’ and the State, local, or tribal
governments ‘‘lack authority’’ to adjust
accordingly. At the time of enactment,
these entitlement programs were:
Medicaid; Aid to Families with
Dependent Children work programs;
Child Nutrition; Food Stamps; Social
Services Block Grants; Vocational
Rehabilitation State Grants; Foster Care,
Adoption Assistance, and Independent
Living; Family Support Welfare
Services; and Child Support
Enforcement. ‘‘Federal private sector
mandate’’ includes a regulation that
‘‘would impose an enforceable duty
upon the private sector, except (i) a
condition of Federal assistance or (ii) a
duty arising from participation in a
voluntary Federal program.’’
The designation of critical habitat
does not impose a legally binding duty
on non-Federal Government entities or
private parties. Under the Act, the only
regulatory effect is that Federal agencies
must ensure that their actions do not
destroy or adversely modify critical
habitat under section 7. While nonFederal entities that receive Federal
funding, assistance, or permits, or that
otherwise require approval or
authorization from a Federal agency for
an action, may be indirectly impacted
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by the designation of critical habitat, the
legally binding duty to avoid
destruction or adverse modification of
critical habitat rests squarely on the
Federal agency. Furthermore, to the
extent that non-Federal entities are
indirectly impacted because they
receive Federal assistance or participate
in a voluntary Federal aid program, the
Unfunded Mandates Reform Act would
not apply, nor would critical habitat
shift the costs of the large entitlement
programs listed above onto State
governments.
(2) This rule may have a small
perceptional effect on the City of Santa
Rosa, New Mexico, due to the
designation of critical habitat. In
practice, small governments like Santa
Rosa are affected by critical habitat only
to the extent that any programs having
Federal funds, permits, or other
authorized activities must ensure that
their actions will not adversely affect
the critical habitat. Therefore, a Small
Government Agency Plan is not
required. However, we did notify the
City of Santa Rosa of the proposed
critical habitat with the publication of
this proposed rule, and we invite their
comments on the proposal with regard
to any potential effects.
Takings—Executive Order 12630
In accordance with E.O. 12630
(Government Actions and Interference
with Constitutionally Protected Private
Property Rights), we have analyzed the
potential takings implications of
designating critical habitat for Wright’s
marsh thistle in a takings implications
assessment. The Act does not authorize
the Service to regulate private actions
on private lands or confiscate private
property as a result of critical habitat
designation. Designation of critical
habitat does not affect land ownership,
or establish any closures, or restrictions
on use of or access to the designated
areas. Furthermore, the designation of
critical habitat does not affect
landowner actions that do not require
Federal funding or permits, nor does it
preclude development of habitat
conservation programs or issuance of
incidental take permits to permit actions
that do require Federal funding or
permits to go forward. However, Federal
agencies are prohibited from carrying
out, funding, or authorizing actions that
would destroy or adversely modify
critical habitat. A takings implications
assessment has been completed and
concludes that, if adopted, this
designation of critical habitat for
Wright’s marsh thistle would not pose
significant takings implications for
lands within or affected by the
designation.
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Federalism—Executive Order 13132
In accordance with E.O. 13132
(Federalism), this proposed rule does
not have significant Federalism effects.
A federalism summary impact statement
is not required. In keeping with
Department of the Interior and
Department of Commerce policy, we
requested information from, and
coordinated development of this
proposed critical habitat designation
with, appropriate State resource
agencies in New Mexico. From a
federalism perspective, the designation
of critical habitat directly affects only
the responsibilities of Federal agencies.
The Act imposes no other duties with
respect to critical habitat, either for
States and local governments, or for
anyone else. As a result, the rule would
not have substantial direct effects either
on the States, or on the relationship
between the national government and
the States, or on the distribution of
powers and responsibilities among the
various levels of government. The
designation may have some benefit to
these governments because the areas
that contain the features essential to the
conservation of the species are more
clearly defined, and the physical or
biological features of the habitat
necessary to the conservation of the
species are specifically identified. This
information does not alter where and
what federally sponsored activities may
occur.
Where State and local governments
require approval or authorization from a
Federal agency for actions that may
affect critical habitat, consultation
under section 7(a)(2) would be required.
While non-Federal entities that receive
Federal funding, assistance, or permits,
or that otherwise require approval or
authorization from a Federal agency for
an action, may be indirectly impacted
by the designation of critical habitat, the
legally binding duty to avoid
destruction or adverse modification of
critical habitat rests squarely on the
Federal agency.
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Civil Justice Reform—Executive Order
12988
In accordance with Executive Order
12988 (Civil Justice Reform), the Office
of the Solicitor has determined that the
rule does not unduly burden the judicial
system and that it meets the
requirements of sections 3(a) and 3(b)(2)
of the Order. We have proposed
designating critical habitat in
accordance with the provisions of the
Act. To assist the public in
understanding the habitat needs of the
species, the rule identifies the elements
of physical or biological features
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essential to the conservation of the
species. The designated areas of critical
habitat are presented on maps, and the
rule provides several options for the
interested public to obtain more
detailed location information, if desired.
Paperwork Reduction Act of 1995—44
U.S.C. 3501 et seq.
This rule does not contain
information collection requirements,
and a submission to the Office of
Management and Budget (OMB) under
the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.) is not required.
We may not conduct or sponsor and you
are not required to respond to a
collection of information unless it
displays a currently valid OMB control
number.
National Environmental Policy Act—42
U.S.C. 4321 et seq.
It is our position that, outside the
jurisdiction of the U.S. Court of Appeals
for the Tenth Circuit, we do not need to
prepare environmental analyses
pursuant to the National Environmental
Policy Act (NEPA; 42 U.S.C. 4321 et
seq.) in connection with designating
critical habitat under the Act. We
published a notice outlining our reasons
for this determination in the Federal
Register on October 25, 1983 (48 FR
49244). This position was upheld by the
U.S. Court of Appeals for the Ninth
Circuit (Douglas County v. Babbitt, 48
F.3d 1495 (9th Cir. 1995), cert. denied
516 U.S. 1042 (1996)). However, when
the range of the species includes States
within the Tenth Circuit, such as that of
the Wright’s marsh thistle, under the
Tenth Circuit ruling in Catron County
Board of Commissioners v. U.S. Fish
and Wildlife Service, 75 F.3d 1429 (10th
Cir. 1996), we undertake a NEPA
analysis for critical habitat designation.
We invite the public to comment on the
extent to which this proposed regulation
may have a significant impact on the
human environment, or fall within one
of the categorical exclusions for actions
that have no individual or cumulative
effect on the quality of the human
environment. We will complete our
analysis, in compliance with NEPA,
before finalizing this proposed rule.
Government-to-Government
Relationship With Tribes
In accordance with the President’s
memorandum of April 29, 1994
(Government-to-Government Relations
with Native American Tribal
Governments; 59 FR 22951), Executive
Order 13175 (Consultation and
Coordination With Indian Tribal
Governments), and the Department of
the Interior’s manual at 512 DM 2, we
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readily acknowledge our responsibility
to communicate meaningfully with
recognized Federal Tribes on a
government-to-government basis. In
accordance with Secretarial Order 3206
of June 5, 1997 (American Indian Tribal
Rights, Federal-Tribal Trust
Responsibilities, and the Endangered
Species Act), we readily acknowledge
our responsibilities to work directly
with tribes in developing programs for
healthy ecosystems, to acknowledge that
tribal lands are not subject to the same
controls as Federal public lands, to
remain sensitive to Indian culture, and
to make information available to tribes.
There are tribal lands included in the
proposed designation of critical habitat
for Wright’s marsh thistle. Using the
criteria described above under Criteria
Used To Identify Critical Habitat, we
have determined that some tribal lands
that are occupied by the species contain
the features essential for the
conservation the species. Only 0.88 ha
(2.18 ac) of proposed critical habitat
lands belong to the Mescalero Apache
Tribe. We have begun government-togovernment consultation with the Tribe,
and we will continue to consult with
the Tribe throughout the public
comment period on this proposed rule
and during development of the final
designation of critical habitat for the
species. We will consider Tribal lands
for exclusion from the final critical
habitat designation to the extent
consistent with the requirements of
4(b)(2) of the Act. The Mescalero
Apache Tribe is the main tribe whose
lands and trust resources may be
affected by this proposed rule. There
may be some other tribes with trust
resources in the area but we have no
specific documentation of this. We sent
a notification letter to the Mescalero
Apache Tribe on April 6, 2014,
describing the exclusion process under
section 4(b)(2) of the Act, and we have
engaged in conversations with the Tribe
about the proposal to the extent possible
without disclosing predecisional
information via requests for additional
information in September 2016 and
January 2018. We will attempt to
schedule a meeting with the Tribe, as
well as other interested parties, shortly
after publication of this proposed rule
so that we can give them as much time
as possible to comment.
References Cited
A complete list of references cited in
this proposed rule is available on the
internet at https://www.regulations.gov
and upon request from the New Mexico
Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
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Authors
Proposed Regulation Promulgation
The primary authors of this proposed
rule are the staff members of the New
Mexico Ecological Services Field Office.
Accordingly, we propose to amend
part 17, subchapter B of chapter I, title
50 of the Code of Federal Regulations,
as set forth below:
List of Subjects in 50 CFR Part 17
2. Amend § 17.12(h) by adding an
entry for ‘‘Cirsium wrightii’’ to the List
of Endangered and Threatened Plants in
alphabetical order under FLOWERING
PLANTS to read as set forth below:
■
PART 17—ENDANGERED AND
THREATENED WILDLIFE AND PLANTS
Endangered and threatened species,
Exports, Imports, Reporting and
recordkeeping requirements,
Transportation.
Scientific name
Authority: 16 U.S.C. 1361–1407; 1531–
1544; and 4201–4245, unless otherwise
noted.
§ 17.12
1. The authority citation for part 17
continues to read as follows:
*
■
Common name
Where listed
*
*
Wright’s marsh thistle .....
*
Wherever found ..............
Status
Endangered and threatened plants.
*
*
(h) * * *
*
*
Listing citations and applicable rules
FLOWERING PLANTS
*
Cirsium wrightii ................
*
■
*
3. Add § 17.73 to read as follows:
§ 17.73
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*
Special rules—flowering plants.
(a) Cirsium wrightii (Wright’s marsh
thistle).
(1) Prohibitions. The following
prohibitions apply to the Wright’s
marsh thistle except as provided under
paragraph (a)(2) of this section:
(i) Remove and reduce to possession
from areas under Federal jurisdiction, as
set forth at § 17.61(c)(1) for endangered
plants.
(ii) Maliciously damage or destroy the
species on any areas under Federal
jurisdiction, or remove, cut, dig up, or
damage or destroy the species on any
other area in knowing violation of any
State law or regulation or in the course
of any violation of a State criminal
trespass law, as set forth at section
9(a)(2)(B) of the Act.
(2) Exceptions from prohibitions. The
following exceptions from prohibitions
apply to the Wright’s marsh thistle:
(i) The prohibitions described in
paragraph (a)(1) of this section do not
apply to activities conducted as
authorized by a permit issued in
accordance with the provisions set forth
at § 17.72.
(ii) Any employee or agent of the
Service or of a State conservation
agency that is operating a conservation
program pursuant to the terms of a
cooperative agreement with the Service
in accordance with section 6(c) of the
Act, who is designated by that agency
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*
*
T
*
*
[Federal Register citation when published as a
final rule]; 50 CFR 17.73(a);4d 50 CFR
17.96(a).CH
*
for such purposes, may, when acting in
the course of official duties, remove and
reduce to possession from areas under
Federal jurisdiction members of the
Wright’s marsh thistle that are covered
by an approved cooperative agreement
to carry out conservation programs.
(b) [Reserved]
■ 4. In § 17.96, amend paragraph (a) by
adding an entry for ‘‘Cirsium wrightii
(Wright’s marsh thistle)’’ in alphabetical
order under Family Asteraceae to read
as follows:
§ 17.96
Critical habitat—plants.
(a) Flowering plants.
*
*
*
*
*
Family Asteraceae: Cirsium wrightii
(Wright’s marsh thistle)
(1) Critical habitat units are depicted
for Chavez, Eddy, Guadalupe, Otero,
and Socorro Counties, New Mexico, on
the maps in this entry.
(2) Within these areas, the physical or
biological features essential to the
conservation of Wright’s marsh thistle
consist of the following components:
(i) Water-saturated soils with surface
or subsurface water flow that allows
permanent root saturation and seed
germination;
(ii) Alkaline soils;
(iii) Full sunlight; and
(iv) Diverse floral communities to
attract pollinators.
(3) Critical habitat does not include
manmade structures (such as buildings,
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*
*
aqueducts, runways, roads, and other
paved areas) and the land on which they
are located existing within the legal
boundaries on the effective date of this
rule.
(4) Critical habitat map units. Data
layers defining map units were created
using the latest imagery available
through Esri (https://www.esri.com/enus/home). The actual source is
DigitalGlobe and the year of the imagery
was 2016. Critical habitat units were
then mapped using ArcGIS ArcMap
10.4. All data are in North America
Albers Equal Area Conic projection,
Datum North American 1983. The maps
in this entry, as modified by any
accompanying regulatory text, establish
the boundaries of the critical habitat
designation. The coordinates or plot
points or both on which each map is
based are available to the public at the
Service’s internet site at https://
www.fws.gov/southwest/es/NewMexico/
index.cfm, at https://
www.regulations.gov under Docket No.
FWS–R2–ES–2018–0071, and at the
field office responsible for this
designation. You may obtain field office
location information by contacting one
of the Service regional offices, the
addresses of which are listed at 50 CFR
2.2.
(5) Note: Index map follows:
BILLING CODE 4333–15–P
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(6) Unit 1: Santa Rosa, Guadalupe
County, New Mexico.
(i) General description: Unit 1
consists of 26.6 hectares (ha) (65.7 acres
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(ac)) in Guadalupe County, New
Mexico, and is composed of lands in
State (12.65 ha (31.2 ac)), City of Santa
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Rosa (9.88 ha (24.4 ac)), and private
(4.09 ha (10.16 ac)) ownership.
(ii) Maps of Unit 1 follow:
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(i) General description: Unit 2
consists of 1.58 ha (3.9 ac) in Socorro
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County, New Mexico, and is composed
of lands in private ownership.
(ii) Map of Unit 2 follows:
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(7) Unit 2: Alamosa Springs, Socorro
County, New Mexico.
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(8) Unit 3: Bitter Lake, Chaves County,
New Mexico.
(i) General description: Unit 3
consists of 19.0 ha (47.0 ac) in Chaves
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County, New Mexico, and is composed
of lands under Federal management,
specifically the U.S. Fish and Wildlife
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Service’s Bitter Lake National Wildlife
Refuge.
(ii) Map of Unit 3 follows:
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(i) General description: Unit 4
consists of 0.65 ha (1.6 ac) in Otero
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County, New Mexico, and is composed
of lands in tribal ownership.
(ii) Map of Unit 4 follows:
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(9) Unit 4: Tularosa Creek, Otero
County, New Mexico.
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(10) Unit 5: La Luz Canyon, Otero
County, New Mexico.
(i) General description: Unit 5
consists of 0.01 ha (0.03 ac) in Otero
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County, New Mexico, and is composed
of lands under Federal management,
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specifically the U.S. Forest Service’s
Lincoln National Forest.
(ii) Map of Unit 5 follows:
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County, New Mexico, and is composed
of lands under Federal management
(0.38 ha (0.95 ac)), specifically the U.S.
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Forest Service’s Lincoln National Forest,
and tribal ownership (0.23 ha (0.58 ac)).
(ii) Map of Unit 6 follows:
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(11) Unit 6: Silver Springs, Otero
County, New Mexico.
(i) General description: Unit 6
consists of 0.62 ha (1.53 ac) in Otero
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(12) Unit 7: Karr/Haynes Canyon,
Otero County, New Mexico.
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(i) General description: Unit 7
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Aurelia Skipwith,
Director, U.S. Fish and Wildlife Service.
]]>Agencies
[Federal Register Volume 85, Number 189 (Tuesday, September 29, 2020)]
[Proposed Rules]
[Pages 61460-61498]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-19337]
[[Page 61459]]
Vol. 85
Tuesday,
No. 189
September 29, 2020
Part IV
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Threatened Species
Status for the Wright's Marsh Thistle (Cirsium wrightii) With a 4(d)
Rule and Designation of Critical Habitat; Proposed Rule
Federal Register / Vol. 85 , No. 189 / Tuesday, September 29, 2020 /
Proposed Rules
[[Page 61460]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2018-0071; FF09E21000 FXES11110900000 201]
RIN 1018-BC34
Endangered and Threatened Wildlife and Plants; Threatened Species
Status for the Wright's Marsh Thistle (Cirsium wrightii) With a 4(d)
Rule and Designation of Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list the Wright's marsh thistle (Cirsium wrightii), a plant species
from New Mexico, as a threatened species and designate critical habitat
under the Endangered Species Act of 1973, as amended (Act). After a
review of the best available scientific and commercial information, we
find that listing the species is warranted. Accordingly, we propose to
list the Wright's marsh thistle as a threatened species with a rule
issued under section 4(d) of the Act (``4(d) rule''). If we finalize
this rule as proposed, it would add this species to the List of
Endangered and Threatened Plants and extend the Act's protections to
the species. We also propose to designate critical habitat for Wright's
marsh thistle under the Act. The proposed critical habitat totals
approximately 64.3 hectares (ha) (159 acres (ac)) in Chaves, Eddy,
Guadalupe, Otero, and Socorro Counties, New Mexico. We also announce
the availability of a draft economic analysis of the proposed
designation of critical habitat for Wright's marsh thistle.
DATES: We will accept comments received or postmarked on or before
November 30, 2020. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. Eastern Time on the closing date. We must receive requests for
public hearings, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by November 13, 2020.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R2-ES-2018-0071,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the Search panel on the left
side of the screen, under the Document Type heading, click on the
Proposed Rule box to locate this document. You may submit a comment by
clicking on ``Comment Now!''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R2-ES-2018-0071; U.S. Fish and Wildlife Service,
MS: JAO/1N, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: For the critical habitat
designation, the coordinates or plot points or both from which the maps
are generated are included in the administrative record and are
available at the New Mexico Ecological Services website https://www.fws.gov/southwest/es/NewMexico/index.cfm and at https://www.regulations.gov under Docket No. FWS-R2-ES-2018-0071. Any
additional tools or supporting information that we may develop for the
critical habitat designation will also be available at the Service
website set out above, and may also be included in the preamble and/or
at https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Shawn Sartorius, Field Supervisor, New
Mexico Ecological Services Field Office, 2105 Osuna Rd. NE,
Albuquerque, NM 87113; telephone 505-346-2525; facsimile 505-346-2542.
Persons who use a telecommunications device for the deaf (TDD) may call
the Federal Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, if a species is
determined to be an endangered or threatened species throughout all or
a significant portion of its range, we are required to promptly publish
a proposal in the Federal Register and make a determination on our
proposal within 1 year. Critical habitat shall be designated, to the
maximum extent prudent and determinable, for any species determined to
be an endangered or threatened species under the Act. Listing a species
as an endangered or threatened species and designations and revisions
of critical habitat can only be completed by issuing a rule.
What this document does.
Proposes to list Wright's marsh thistle as a threatened
species. Wright's marsh thistle is a candidate species for which we
have on file sufficient information on biological vulnerability and
threats to support preparation of a listing proposal, but for which
development of a listing rule has been precluded by other higher
priority listing activities. This proposed rule reassesses all
available information regarding the status of and threats to this
species.
Proposes a rule issued under section 4(d) of the Act
(``4(d) rule'') that would make it unlawful to remove and reduce to
possession the species from areas under Federal jurisdiction;
maliciously damage or destroy the species on areas under Federal
jurisdiction; or remove, cut, dig up, or damage or destroy the species
on any other area in knowing violation of any law or regulation of any
State or in the course of any violation of a State criminal trespass
law. Nothing in the proposed 4(d) rule affects in any way other
provisions of the Act, such as the designation of critical habitat
under section 4, the recovery planning provisions of section 4(f), and
the consultation requirements under section 7.
Proposes to designate critical habitat for the species on
approximately 64.3 ha (159 ac) in Chaves, Eddy, Guadalupe, Otero, and
Socorro Counties, New Mexico.
The basis for our action. Under the Act, we can determine that a
species is an endangered or threatened species based on any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined that stressors related to
Factors A and E are causing Wright's marsh thistle to be threatened.
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary) to designate critical habitat concurrent with listing to
the maximum extent prudent and determinable. Section 4(b)(2) of the Act
states that the Secretary must make the designation on the basis of the
best scientific data available and after taking into consideration the
economic impact, the impact on national security, and any other
relevant impacts of specifying any particular area as critical habitat.
Section 3(5)(A) of the Act defines critical habitat as (i) the specific
areas
[[Page 61461]]
within the geographical area occupied by the species, at the time it is
listed, on which are found those physical or biological features (I)
essential to the conservation of the species and (II) which may require
special management considerations or protections; and (ii) specific
areas outside the geographical area occupied by the species at the time
it is listed, upon a determination by the Secretary that such areas are
essential for the conservation of the species.
Peer review. In accordance with our joint policy on peer review
published in the Federal Register on July 1, 1994 (59 FR 34270), and
our August 22, 2016, memorandum updating and clarifying the role of
peer review of listing actions under the Act, we sought the expert
opinions of three appropriate and independent specialists during the
analysis of the status of the species and the creation of the SSA
report (USFWS 2017). The purpose of peer review was to ensure that our
listing determination and critical habitat designation are based on
scientifically sound data, assumptions, and analyses. The peer
reviewers have expertise in Wright's marsh thistle's biology, life
history, habitat, and range, and in the physical or biological features
of its habitat. One of three peer reviewers provided comments on the
species status assessment, which were integrated into the SSA report;
these comments will be available along with other public comments in
the docket for this proposed rule (see https://www.regulations.gov,
Docket No. FWS-R2-ES-2018-0071).
Because we will consider all comments and information we receive
during the comment period on this proposed rule, our final
determinations may differ from this proposal. Based on the new
information we receive (and any comments on that new information), we
may conclude that the species is endangered instead of threatened, or
we may conclude that the species does not warrant listing as either an
endangered species or a threatened species. Such final decisions would
be a logical outgrowth of this proposal, as long as we: (1) Base the
decisions on the best scientific and commercial data available after
considering all of the relevant factors; (2) do not rely on factors
Congress has not intended us to consider; and (3) articulate a rational
connection between the facts found and the conclusions made, including
why we changed our conclusion.
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other concerned governmental agencies,
Native American tribes, the scientific community, industry, or any
other interested parties concerning this proposed rule. We particularly
seek comments concerning:
(1) Wright's marsh thistle's biology, range, and population trends,
including:
(a) Biological or ecological requirements of the species, including
habitat requirements for all life cycle stages, seed production and
dispersal, and seed germination and growth;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns;
(d) Historical and current population levels, and current and
projected trends; and
(e) Past and ongoing conservation measures for the species, its
habitat, or both.
(2) Factors that may affect the continued existence of the species,
which may include habitat modification or destruction, overutilization,
disease, predation, the inadequacy of existing regulatory mechanisms,
or other natural or manmade factors.
(3) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species and existing regulations
that may be addressing those threats.
(4) Additional information concerning the historical and current
status, range, distribution, and population size of this species,
including the locations of any additional populations of this species.
(5) Information on regulations that are necessary and advisable to
provide for the conservation of the Wright's marsh thistle and that the
Service can consider in developing a 4(d) rule for the species. In
particular, information concerning the extent to which we should
include any of the section 9 prohibitions in the 4(d) rule or whether
any other forms of take should be excepted from the prohibitions in the
4(d) rule.
(6) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including information to inform the following factors such that
a designation of critical habitat may be determined to be not prudent:
(a) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(b) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(c) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States;
(d) No areas meet the definition of critical habitat.
(7) Specific information on:
(a) The amount and distribution of Wright's marsh thistle habitat;
(b) What areas, that were occupied at the time of listing and that
contain the physical or biological features essential to the
conservation of the species, should be included in the critical habitat
designation and why;
(c) Special management considerations or protections that may be
needed in the critical habitat areas we are proposing, including
managing for the potential effects of climate change; and
(d) What areas not occupied at the time of listing that are
essential for the conservation of the species. We particularly seek
comments:
(i) Regarding whether occupied areas are inadequate for the
conservation of the species; and,
(ii) Providing specific information that supports the determination
that unoccupied areas will, with reasonable certainty, contribute to
the conservation of the species and, contain at least one physical or
biological feature essential to the conservation of the species.
(8) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(9) Any probable economic, national security, or other relevant
impacts of designating any area as critical habitat that may be
included in the final designation, and the related benefits of
including or excluding areas.
(10) Information on the extent to which the description of probable
economic impacts in the draft economic analysis is a reasonable
estimate of the likely economic impacts.
(11) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act.
(12) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for
[[Page 61462]]
greater public participation and understanding, or to better
accommodate public concerns and comments.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) of the Act directs that
determinations as to whether any species is an endangered or a
threatened species must be made ``solely on the basis of the best
scientific and commercial data available.''
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via https://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on https://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on https://www.regulations.gov.
Public Hearing
Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and local newspapers at least 15 days before the
hearing. For the immediate future, we will provide these public
hearings using webinars that will be announced on the Service's
website, in addition to the Federal Register. The use of these virtual
public hearings is consistent with our regulation at 50 CFR
424.16(c)(3).
Previous Federal Actions
On October 15, 2008, we received a petition from WildEarth
Guardians requesting that we list Wright's marsh thistle as an
endangered or threatened species under the Act. Additionally, the
petitioner requested that critical habitat be designated concurrent
with the listing of Wright's marsh thistle (thistle). On September 10,
2009, we published a 90-day finding in the Federal Register (74 FR
46542) that the petition presented substantial information that listing
Wright's marsh thistle may be warranted. The 90-day finding stated that
the petition provided substantial information indicating that listing
Wright's marsh thistle may be warranted. At that time, we initiated a
status review of the species.
On February 11, 2010, WildEarth Guardians filed suit against the
Service for failure to issue a 12-month finding on the petition
(WildEarth Guardians v. Salazar, No. 10-cv-00122 BRB-DJS (D.N.M.)).
Under a stipulated settlement agreement, the 12-month finding was due
to the Federal Register by October 31, 2010. On November 4, 2010, after
review of all available scientific and commercial information, we
published a 12-month petition finding (75 FR 67925), in which we found
that listing Wright's marsh thistle as endangered or threatened
throughout its range is warranted, but that listing of the thistle was
precluded by higher priority actions to amend the Lists of Endangered
and Threatened Wildlife and Plants. As a result of the 12-month
finding, we added Wright's marsh thistle to our candidate species list,
with a listing priority number of 8, indicating that the thistle faced
imminent threats that were of moderate magnitude. Thereafter, we
reassessed the status of the species annually and determined that
listing the thistle remained warranted but was precluded by higher
priority activities under the Act (see 77 FR 69994, November 21, 2012;
78 FR 70104, November 22, 2013; 79 FR 72450, December 5, 2014; 80 FR
80584, December 24, 2015; 81 FR 87246, December 2, 2016).
Supporting Documents
A species status assessment (SSA) team prepared an SSA report for
the Wright's marsh thistle. The SSA team was composed of Service
biologists, in consultation with other species experts. The SSA report
represents a compilation of the best scientific and commercial data
available concerning the status of the species, including the impacts
of past, present, and future factors (both negative and beneficial)
affecting the species. The Service sent the SSA report to 3 independent
peer reviewers and received 1 response.
I. Proposed Listing Determination
Background
Species Description
Wright's marsh thistle (Gray 1853, p. 101), a member of the
Asteraceae (sunflower) family, produces a 0.9- to 2.4-meter (m) (3- to
8-foot (ft)) single stalk covered with succulent leaves. There are two
regional varieties of this species. The more eastern populations in the
Pecos River valley of New Mexico have pink flowers and dark green
foliage with higher plant height, while the more western and southern
populations in New Mexico (and the previous populations in Arizona and
Mexico) have white or pale pink flowers and pale green foliage
(Sivinski 2011, pp. 27-28). The differences serve as evidence of
ecological adaptability within the species, and we believe these
differences represent genetic diversity between the eastern and western
populations.
Life History
Depending on local environmental conditions, Wright's marsh thistle
can display life-history traits of a biennial (a plant completing
development in 2 years, flowering in its second year) or a weak
monocarpic perennial (a plant that flowers, sets seed, and then dies).
Cross pollination is achieved by insect pollinators, primarily bees.
Like other species in the genus Cirsium, Wright's marsh thistle
produces numerous seeds per flowering plant. After germination,
seedlings develop into an intermediate rosette form for most of a year
or longer before bolting (producing a stem) and growing into the
mature, flowering plant. It does not reproduce vegetatively (asexually
from parent plant). In order to progress through its life cycle, the
thistle requires adequate soil alkalinity, water availability for
permanent root saturation, and access to full sunlight. Specifically,
seeds require water-saturated soils and access to fairly direct
sunlight for germination. Rosettes also require water-saturated soils
and access to fairly direct sunlight in order to grow into a mature
plant. Mature plants must also maintain permanent root saturation via
water-saturated soils and tend to thrive better in full sunlight. For
more details of the biology and life history of Wright's marsh thistle,
please refer to chapter 2 of the SSA report (USFWS 2017).
[[Page 61463]]
Habitat and Distribution
Wright's marsh thistle is a rare wetland species that grows in
marshy habitats with year-round, water-saturated soils, at elevations
between 1,150 and 2,390 m (3,450 and 7,850 ft) in elevation (Sivinski
1996, p. 1; 2005, pp. 3-4). Wright's marsh thistle is an obligate of
seeps, springs, and wetlands that have saturated soils with surface or
subsurface water flow (Sivinski 1996, p. 1; USFWS 1998, p. 2;
Worthington 2002, p. 2; NMRPTC 2009, p. 1). Within those spring and
seep areas, it is usually associated with alkaline soils (Sivinski
2005, p. 3).
Historical Range
Wright's marsh thistle was historically known to occur in Arizona
and New Mexico in the United States, and Chihuahua and Sonora in Mexico
(Sivinski 2012, p. 2). The single location in Arizona was a historical
1851 collection from San Bernardino Cienega, which straddles the
international border with Mexico, and no longer has suitable wetland
habitat on the Arizona side of the border (Baker 2011, p. 7). There
were 10 historical occurrences in New Mexico; however, in a recent
search effort at one of the sites (Lake County), the thistle was not
found (Sivinski 2011, p. 40), and another of the 10 records
(Rattlesnake Springs, Eddy County) is now thought to be a hybrid
between Wright's marsh thistle and the Texas thistle (C. texanum)
(NMRPTC 2009, p. 2). Reports of Wright's marsh thistle from Texas were
common (Keil 2006, p. 131; Sivinski 1996, pp. 2-4), but in subsequent
examinations of Texas specimens purporting to be Wright's marsh
thistle, the specimens were found to be Texas thistle or other Cirsium
species (75 FR 67928; November 4, 2010).
The status of the Wright's marsh thistle in Mexico is presumed
extirpated. There have been few verified historical collections, and
the most recent site visit to Fronteras, Mexico, and Cerro Angostura,
Mexico, indicated that the habitat had been mostly dried out and is no
longer suitable (Sivinski 2017, entire).
Therefore, Wright's marsh thistle has been extirpated from all
previously known locations in Arizona, two historical locations in New
Mexico, and all known locations in Mexico, and it was misidentified and
likely not ever present in Texas.
Current Range
In New Mexico, eight general confirmed locations of Wright's marsh
thistle cover an area of approximately 43 ha (106 ac): Santa Rosa, in
Guadalupe County; Bitter Lake National Wildlife Refuge (NWR), in Chaves
County; Blue Spring, in Eddy County; La Luz Canyon, Karr/Haynes Canyon,
Silver Springs, and Tularosa Creek, in Otero County; and Alamosa Creek,
in Socorro County (Bridge 2001, p. 1; Sivinski and Bleakly 2004, p. 2;
NMRPTC 2009, p. 1; Sivinski 1994, p. 1; Sivinski 1996, p. 2; Sivinski
2005, p. 1, 3-5; Sivinski 2009; USFWS 1998, p. 1; Worthington 2002, p.
1-3). In Otero County, the Sacramento Mountains have four unique
populations of the species clustered within about 16 kilometers (km)
(10 miles (mi)) of each other on the west slope of the mountains. The
remaining four localities are widely disjunct, separated from the
Sacramento localities by about 120 to 225 km (75 to 140 mi) and from
each other by about 120 to 345 km (75 to 215 mi). In the Sacramento
Mountains, two of these four localities occur on the Lincoln National
Forest, one locality is on private land, and the remaining locality is
on the Mescalero Apache Reservation. In the Pecos River Valley, one
locality is on public lands on Bitter Lake NWR; one is on private land
near Blue Springs and the Black River; and one is in the vicinity of
Santa Rosa on private, municipal, and State lands. The remaining
locality is on private land on Alamosa Creek, Socorro County.
Localities vary in relative population size from fewer than 20
individuals covering only about 0.02 ha (0.03 ac) at the Silver Springs
locality (Sivinski 2012, p. 21), to several thousand individuals on
Bitter Lake NWR, covering almost 9.3 ha (23 ac).
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species is an ``endangered species'' or a ``threatened
species.'' The Act defines an endangered species as a species that is
``in danger of extinction throughout all or a significant portion of
its range,'' and a threatened species as a species that is ``likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range.'' The Act requires that we
determine whether any species is an ``endangered species'' or a
``threatened species'' because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the expected response by the species,
and the effects of the threats--in light of those actions and
conditions that will ameliorate the threats--on an individual,
population, and species level. We evaluate each threat and its expected
effects on the species, then analyze the cumulative effect of all of
the threats on the species as a whole. We also consider the cumulative
effect of the threats in light of those actions and conditions that
will have positive effects on the species, such as any existing
regulatory mechanisms or conservation efforts. The Secretary determines
whether the species meets the definition of an ``endangered species''
or a ``threatened species'' only after conducting this cumulative
analysis and describing the expected effect on the species now and in
the foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable
[[Page 61464]]
future on a case-by-case basis. The term ``foreseeable future'' extends
only so far into the future as the Services can reasonably determine
that both the future threats and the species' responses to those
threats are likely. In other words, the foreseeable future is the
period of time in which we can make reliable predictions. ``Reliable''
does not mean ``certain''; it means sufficient to provide a reasonable
degree of confidence in the prediction. Thus, a prediction is reliable
if it is reasonable to depend on it when making decisions.
It is not always possible or necessary to define foreseeable future
as a particular number of years. Analysis of the foreseeable future
uses the best scientific and commercial data available and should
consider the timeframes applicable to the relevant threats and to the
species' likely responses to those threats in view of its life-history
characteristics. Data that are typically relevant to assessing the
species' biological response include species-specific factors such as
lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
Analytical Framework
The SSA report for Wright's marsh thistle (USFWS 2017) documents
the results of our comprehensive biological status review for the
species, including an assessment of the potential threats to the
species. The SSA report does not represent a decision by the Service on
whether the species should be proposed for listing as an endangered or
threatened species under the Act. It does, however, provide the
scientific basis that informs our regulatory decisions, which involves
the further application of standards within the Act and its
implementing regulations and policies.
To assess Wright's marsh thistle viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency supports the ability of the species to withstand
environmental and demographic stochasticity (for example, wet or dry,
warm or cold years), redundancy supports the ability of the species to
withstand catastrophic events (for example, droughts, large pollution
events), and representation supports the ability of the species to
adapt over time to long-term changes in the environment (for example,
climate changes). In general, the more resilient and redundant a
species is and the more representation it has, the more likely it is to
sustain populations over time, even under changing environmental
conditions. Using these principles, we identified the species'
ecological requirements for survival and reproduction at the
individual, population, and species levels, and described the
beneficial and risk factors influencing the species' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. This process used the best
available information to characterize viability as the ability of a
species to sustain populations in the wild over time. We use this
information to inform our regulatory decision.
Summary of Biological Status and Threats
In this discussion, we review the biological condition of the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability.
To determine the species' current condition, we ranked each
population based on six factors relating to population and habitat
variables including habitat quantity, number of patches, abundance,
reproduction, permanent root saturation, and full sun. For each of
these six factors, we defined criteria for low, moderate, and high
conditions, which are outlined in table 3.3 in chapter 3 of the SSA
report. These criteria were used to determine an overall condition for
each of the eight extant populations (USFWS 2017). The overall
condition of a population refers to the likelihood of persistence over
time. We expect a population in high overall condition to have a
greater than 90 percent likelihood of persistence over the foreseeable
future (in other words a 10 percent or less likelihood of extirpation).
For a population in moderate condition, we estimate that the likelihood
of persistence over the foreseeable future would be approximately 66 to
90 percent (10 to 33 percent likelihood of extirpation). For a
population in low condition, we estimated a likelihood of persistence
of approximately 25 to 66 percent over the foreseeable future (33 to 75
percent likelihood of extirpation) and a population in very low
condition to have a likelihood of persistence of approximately 0 to 25
percent over the foreseeable future (75 to 100 percent likelihood of
extirpation).
For Wright's marsh thistle to maintain viability, its populations
or some portion thereof must be able to withstand stochastic
disturbance. Resource needs that influence the resiliency of
populations include constant soil saturation, alkaline soils, abundance
of insect pollinators, and availability of direct sunlight.
Additionally, secondary resource needs include agents of seed dispersal
(wind, water, mammals, and birds), and water availability for seed
germination. For more details on these resource needs and their impact
on species viability, refer to chapter 2 of the SSA report (USFWS
2017). Factors that influence those resource needs will determine
whether Wright's marsh thistle populations are able to sustain adequate
numbers within habitat patches of adequate area and quality to maintain
survival and reproduction in spite of disturbance, thereby increasing
the resiliency of populations.
Maintaining representation in the form of genetic or environmental
diversity is important to maintain Wright's marsh thistle's capacity to
adapt to future environmental changes. A healthy community of insect
pollinators, particularly bees and butterflies, leads to genetic
diversity by the process of cross pollination between patches within a
population. The differences in flower color (and perhaps differences in
mature plant maximum growth height) represent differences in ecological
adaptability between the eastern and western populations of the
thistle, which may also represent a form of genetic diversity. There is
a need to maintain the genetic and environmental diversity between the
eastern and western groups, as their potential genetic and life-history
attributes may buffer the thistle's response to environmental changes
over time. Wright's marsh thistle has likely lost genetic and
environmental diversity as populations have been reduced or extirpated.
As such, maintaining the remaining representation in the form of
genetic and environmental diversity may be important to the capacity of
Wright's marsh thistle to adapt to future environmental change.
Wright's marsh thistle needs to have multiple resilient populations
distributed throughout its range to provide for redundancy. The more
populations, and the wider the distribution of those populations, the
more redundancy the species will exhibit. In addition, populations of
the
[[Page 61465]]
species can exhibit internal redundancy through the presence of
multiple patches within the population. For example, the eastern
populations of Wright's marsh thistle have multiple patches of occupied
habitat within each population location, while the western populations
typically have only one patch. The presence of multiple patches
contributes to the ability of the population to maintain resiliency
when faced with various risk factors. Redundancy reduces the risk that
a large portion of the species' range will be negatively affected by a
catastrophic natural or anthropogenic event at a given point in time.
Species that are well-distributed across their historical range are
considered less susceptible to extinction and have higher viability
than species confined to a small portion of their range (Carroll et al.
2010, entire; Redford et al. 2011, entire).
Current Condition of Wright's Marsh Thistle
As stated above, the best available information indicates that
Wright's marsh thistle is currently only found in eight localities in
New Mexico. We believe the plant has been extirpated in Arizona,
Mexico, and two locations in New Mexico, and never occurred in Texas.
According to our current condition rankings outlined in chapter 3 of
the SSA report, of the eight extant populations in New Mexico, three
have been determined to have moderate resiliency, two have low
resiliency, and three have very low resiliency and are at risk of
extirpation. We consider the thistle to have representation in the form
of genetic and environmental diversity resulting in two distinct
phenotypes in the eastern and western populations, as described above.
Within the two representation areas (east and west), three populations
are extant in the east, and five populations are extant in the west.
While there is greater redundancy in terms of number of populations in
the western phenotype, the five extant populations in the western
representation are much smaller in both the area occupied and
population size. Therefore, the western populations are less resilient.
This circumstance impacts the overall viability of the species by
reducing the overall resiliency of the thistle to stochastic events.
Influence Factors for Wright's Marsh Thistle
The largest threats to the future viability of Wright's marsh
thistle relate to habitat degradation from various stressors
influencing the availability of the thistle's resource needs (e.g.,
water availability). A brief summary of these primary stressors is
presented below, followed by a table identifying the particular
stressors, and the magnitude of those stressors, affecting each of the
eight populations (Table 1). We also include a discussion of current
conservation measures for the thistle and any existing regulatory
mechanisms that may ameliorate or reduce the impact of the stressors.
For a full description of these stressors, refer to chapter 4 of the
SSA report (USFWS 2017).
Decreased Water Availability
The drying of Wright's marsh thistle habitat over approximately the
last 25 years has led to shrinking population boundaries, a reduction
in the numbers of plants, and, in some cases, a loss of all individuals
at several localities (Sivinski 1996; Sivinski 2005, pp. 3-4; Sivinski
2012). Because the thistle occurs only in areas that are water-
saturated, populations have a high potential for extirpation when the
habitat dries up. Loss of water from Wright's marsh thistle habitat
occurs through changing precipitation patterns or drought, or as a
result of human impacts from groundwater pumping (withdrawal) or
diversion of surface water, which can lead to the degradation and
extirpation of the species' habitat (Sivinski 1996, p. 5; Sivinski
2005, p. 1; USFS 2008, p. 19). In addition to experiencing periods of
drought, much of the habitat of Wright's marsh thistle has been and
continues to be severely altered and degraded because of past and
present land and water management practices that have led to ground and
surface water depletion. For specific examples for each population,
please refer to chapter 4, section 1 of the SSA report (USFWS 2017).
All of the extant localities may be affected by long-term drought,
whereas four of the largest localities at Blue Spring, Bitter Lake NWR,
Santa Rosa, and Alamosa Creek have the potential to be further modified
by ongoing and future water management practices. Drought, along with
ground and surface water depletion, serve to decrease the amount of
water available in Wright's marsh thistle habitat, which impacts the
species' need for permanent root saturation. Reductions in
precipitation and temperature are predicted, which suggests that these
impacts will increase in the future, leading to further impacts to the
thistle (NOAA 2017).
Decreased Water Availability: Drought
According to the United States Drought Monitor (2017), large
portions (over 30 percent) of New Mexico, including Wright's marsh
thistle habitat, experienced drought from approximately April 2011
until mid-2014. Within New Mexico, monsoonal summer precipitation can
be very patchy, with some areas receiving considerably less rainfall
than others. Newton et al. (2012) provides information on drought
conditions in the range of the species, specifically in the Pecos River
valley and Sacramento Mountains. The three eastern populations of
Wright's marsh thistle in the Pecos River valley have not been affected
by drought to the same extent as the western populations, because the
Pecos River valley's marshy habitats are maintained by large regional
aquifers. The western populations often rely on wet periods during
summer months to recharge the ground water. In the Sacramento
Mountains, because these wet periods are extremely rare events (Newton
et al. 2012, p. 66), drought has notably impacted the area's
groundwater tables (USFS 2008, p. 22). For this reason, the seasonal
distribution of yearly precipitation can result in temporary drought
conditions and reduced water availability for some Wright's marsh
thistle localities within this mountain range.
Wright's marsh thistle is vulnerable to reduced water availability
because the species occupies relatively small areas of spring or seep
habitat in an arid region that is plagued by drought and ongoing
aquifer withdrawals (e.g., in the Roswell Basin). If future episodes of
drought increase in frequency, duration, or intensity, additional
dewatering and decrease of the thistle's habitat are likely to occur.
Projected increases in temperature and increased variability in
precipitation in locations where Wright's marsh thistle is currently
located demonstrate the vulnerability of the habitat to reductions in
water availability. The vulnerability of the habitat to increased
drought depends, in large part, on the sources of their water supply.
Habitats that are sustained mainly by precipitation in the Sacramento
Mountains (five populations) are the most likely to be affected by
increased drought, making drought a significant stressor to these
populations. Alternatively, localities that are supplied primarily by
groundwater in the Pecos River Basin (three populations) will likely
have the greatest resistance to increased drought due to water stored
in aquifers, making drought a slightly less significant stressor to the
populations (e.g., see Poff et al. 2002, pp. 18-19).
[[Page 61466]]
Decreased Water Availability: Ground and Surface Water Depletion
Wright's marsh thistle is a wetland plant that can be extirpated
when its habitat dries out. The effects of ongoing and past maintenance
and operation of existing water diversions can also limit the size of
thistle populations (USACE 2007, p. 29). Sivinski (1994, pp. 1-2; 1996,
p. 4; 2005, p. 1; 2006, p. 4) reported loss and degradation of habitat
from water diversion or draining of wetlands that historically
supported Wright's marsh thistle in Chaves, Otero, and Sierra Counties,
New Mexico. The extent of ongoing and future water diversions is
related to the extent of urban and agricultural development within a
given area. Thus, the significance of the impacts of this stressor to
each population can be correlated to the number of water diversions
within the area for both urban and agricultural purposes. Specific
details on impacts to each population can be found in chapter 4 of the
SSA report (USFWS 2017). The alteration and loss of habitat that
currently supports Wright's marsh thistle, due to groundwater and
surface water depletion, will continue and likely increase in the
foreseeable future. This projection is based on current and future
development plans in areas surrounding each population; specific
details are located in chapter 4 of the SSA report (USFWS 2017).
Decreased Water Availability: Effects of Climate Change
Because Wright's marsh thistle occupies relatively small areas of
spring or seep habitat in an arid region plagued by drought and ongoing
aquifer withdrawals (e.g., in the Roswell Basin), it is expected to be
vulnerable to changes in climate that decrease the availability of
water to suitable habitat. Springs and wet valleys have been affected
by drought in at least three canyons of the Sacramento Mountains, New
Mexico, resulting in reduced population sizes. Similar water loss may
occur within other Wright's marsh thistle localities (USFWS 2017). If
changes in climate lead to future drought, additional dewatering and
reduction of habitat for the thistle may occur.
Downscaled projections as of 2018 were available for our analysis
of Wright's marsh thistle from the Climate Explorer program in the U.S.
Climate Resilience Toolkit (NOAA 2017). The Climate Explorer is based
on 32 models and produces a mean which can be used to predict changes
in air temperature and precipitation for counties, cities or specific
zip codes in the contiguous United States and portions of Canada and
Mexico. Scenario RCP 4.5 is a moderate emissions scenario for
atmospheric concentrations of greenhouse gases. Based on climate change
projections for emissions at RCP 4.5, all locations where Wright's
marsh thistle is currently located show increases in mean daily maximum
temperature over the next 50 years by approximately 1.7 degrees Celsius
([deg]C) (3 degrees Fahrenheit ([deg]F)). For example, in Chaves
County, New Mexico, mean daily maximum temperature is expected to rise
from approximately 24.7 [deg]C (76.5 [deg]F) in 2010, to approximately
26.9 [deg]C (80.5 [deg]F) in 2060. Climate change scenario RCP 8.5
projects climate conditions based on higher CO2 emissions.
This scenario results in a projected change of approximately 3 [deg]C
(5.5 [deg]F) over the next 50 years in Chaves County, New Mexico
leading to a mean daily maximum of 28.2 [deg]C (82.7 [deg]F).
While mean daily precipitation is not expected to vary drastically
over the next 50 years, the variability in precipitation throughout the
year will increase. For example, in Otero County, mean daily average
precipitation is projected to decrease during certain times of the year
and increase during other times of the year relative to current
conditions. In addition, the timing of maximum precipitation events may
occur during different months than experienced in the past. This
variability in precipitation will contribute to more periods of extreme
drought and severe flooding events, which may impact the availability
of water during times critical to life-history traits of Wright's marsh
thistle (NOAA 2017).
Specific details on the effects of climate change are located in
chapter 4 of the SSA report (USFWS 2017). Projected increases in
temperature and increased variability in precipitation in locations
where Wright's marsh thistle is currently located demonstrate the
vulnerability of the species' habitat to changes in climate that will
exacerbate the impact of existing stressors relating to availability of
water and the extent of current and ongoing water withdrawals.
Decreased Water Availability: Summary
In summary, ground and surface water withdrawal and potential
future increases in the frequency, duration, or intensity of drought,
individually and in combination, pose a threat to Wright's marsh
thistle and its habitat in the future. In addition, as Wright's marsh
thistle has small, isolated populations, we expect the stressor of
decreased water availability to further impact the species' overall
viability. Thus, we expect that this threat will likely remain a
significant stressor to the thistle and will likely intensify in the
foreseeable future.
Livestock Grazing
In the semi-arid southwestern United States, wet marshes and other
habitat of Wright's marsh thistle attract ungulates (e.g., livestock,
elk, and deer) because of the availability of water and high-quality
forage (Hendrickson and Minckley 1984, p. 134). Livestock grazing is
present at localities in the Sacramento Mountains, Santa Rosa, Blue
Springs, and Alamosa Springs. At the Santa Rosa locality, photographs
indicate that the growth of Wright's marsh thistle and the integrity of
its habitat have been negatively affected by livestock herbivory and
trampling (Sivinski 2012 pp. 33-53). Dry periods likely increase the
effects of livestock trampling and herbivory on Wright's marsh thistle
when other water and forage plants are not available (75 FR 67925).
Grazing may be more concentrated within habitats similar to those
occupied by Wright's marsh thistle during drought years, when livestock
are prone to congregate in wetland habitats or where forage production
is greater than in adjacent dry uplands (USFS 2003, entire). Livestock
may trample individual plants and eat the thistle when other green
forage is scarce, and when the seedlings or rosettes are developing and
abundant. Further, livestock may eat mature plant inflorescences (the
complete flower head), which could reduce seed production. For example,
the threatened Sacramento Mountains thistle (C. vinaceum) (52 FR
22933), which is also found in New Mexico and associated with habitats
similar to those occupied by Wright's marsh thistle, is eaten by
livestock and appears to be the preferred forage at some times of the
year. It may provide some of the only green forage during droughts
(NMRPTC 2009, p. 2). Also, it is possible that livestock grazing within
and adjacent to spring ecosystems could alter or remove habitat or
limit the distribution of the thistle (USFWS 2017).
Effects of grazing on Wright's marsh thistle depend on timing;
winter grazing (after seed dispersal and before seedling growth in
spring) probably has a low effect on survival and reproduction,
although there could be some trampling of rosettes. On the other hand,
spring and early summer grazing probably reduces growth, survival, and
reproduction. Late summer and early fall grazing is most severe, as
flowering plants typically set seed at this time;
[[Page 61467]]
therefore, grazing during this period would inhibit reproduction.
Finally, if a patch of Wright's marsh thistle was heavily grazed during
the time of bolting or flowering over 2 or more consecutive years, the
seed bank and long-term population trend in the affected patch could be
negatively impacted. For example, observations of the impacts of
grazing at some of the Wright's marsh thistle localities show that
fewer thistles mature into flowering adults when the population
experiences grazing pressure (Sivinski 2012 pp. 33-53). Livestock
activities are considered a widespread stressor at the current time;
localized impacts have been observed and there is a high potential for
effects to populations. Increased use of wet springs and marshes by
livestock during drought conditions constitutes a significant stressor
in the future.
In summary, we find that livestock grazing poses a current and
future threat to Wright's marsh thistle and its habitat through direct
mortality and habitat degradation, and we expect that this threat will
likely intensify at some localities (Sacramento Mountains, Santa Rosa,
Blue Spring, Alamosa Springs) due to projected increases in drought
periods that cause livestock to concentrate around Wright's marsh
thistle localities. Because the thistle only occurs in small, isolated
populations, the impacts of grazing could be a significant stressor to
the species.
Native and Nonnative Plants
Some native and nonnative plants pose a threat to Wright's marsh
thistle and its habitat through habitat encroachment and competition
for resources at most localities. The native plants include cattails
(Typha spp.); nonnative species include the common reed (Phragmites
australis), purple loosestrife (Lythrum salicaria), Russian olive
(Elaeagnus angustifolia), saltcedar (Tamarix spp.), and Russian thistle
(Salsola spp.) (Sivinski 1996, p. 6). These particular native and
nonnative species all have the same effect on Wright's marsh thistle by
functioning as invasive species with respect to the thistle's habitat.
Though cattails and Wright's marsh thistle may have evolved in the same
area, decreased water availability has altered habitat conditions such
that cattails have a competitive advantage in Wright's marsh thistle
habitat. These plants present unique challenges and potential threats
to the habitat, including shade effects on Wright's marsh thistle
seedlings and rosettes.
For example, the common reed, a nonnative invasive plant introduced
from Europe and Asia, increases the potential for wildfire and is
increasing in density at some locations in New Mexico. The dense plant
growth blocks sunlight to other plants growing in the immediate area
and occupies all available habitat (PCA 2005, p. 1). The increase of
the common reed in Wright's marsh thistle habitat is a current threat
to the species through increased wildfire risk, competition, and
changes in hydrology (impacts on degree of soil saturation), especially
when habitat is disturbed through burning or drying. The impacts vary
based on location, with the greatest impacts occurring at Santa Rosa,
Bitter Lake NWR, Blue Spring, and Tularosa Creek.
We expect that the threats caused by native and nonnative plant
competition and habitat loss will likely continue and possibly
intensify, due to lack of vegetation management practices at several
locations (Santa Rosa, Blue Spring, Tularosa Creek) and the
pervasiveness of native and nonnative plants despite ongoing efforts
for habitat restoration at other locations (Bitter Lake NWR). As this
species is comprised of small, isolated populations, the impacts of
native and nonnative plants could pose a significant stressor to the
thistle. Attempts to manage native and nonnative plants through
herbicide use and mowing may also exacerbate effects to Wright's marsh
thistle as these techniques are difficult to preferentially apply to
only the native and nonnative plant species when habitat is shared. In
addition, we expect increases in drought periods to exacerbate the
effects of this stressor.
Oil and Gas Development and Mining
Oil and gas development occurs within and adjacent (i.e., within 10
miles) of some areas occupied by Wright's marsh thistle including Santa
Rosa, Bitter Lake NWR, and Blue Spring (New Mexico State Lands Office,
2017; NMDGF 2007, pp. 18-19; NMDGF 2005, p. 35). There are also mining
activities adjacent (i.e., within 5 miles) to other areas such as a
potential beryllium mine at Alamosa Springs, and subsurface drilling
and exploration of the mineral bertrandite on Sullivan Ranch near
Alamosa Springs (New Mexico Mining and Minerals Division 2010; New
Mexico State Lands Office, 2017; Sivinski 2012, p. 9). As of February
2020, the Service has no information on any new actions towards
developing the potential beryllium mine at Alamosa Springs. The main
impacts from oil and gas development and mining include the potential
for contamination. Contamination from oil and gas development has been
observed within close proximity (i.e., within 16 km (10 mi) of some
Wright's marsh thistle localities (New Mexico State Lands Office,
2017). While laws and regulations related to water quality have reduced
the risk of contamination in and near occupied locations from oil and
gas production, the likelihood that a spill could impact these habitats
is still present based on the high volume of oil and gas leases near
these areas.
Potential contamination from both oil and gas development and
mining could have several impacts on plants (such as Wright's marsh
thistle), including the following: increased available nutrients, which
may favor competitive or nonnative plant growth; altered soil pH
(either higher or lower), which can kill plants; absorption of
chemicals, which can poison plants or cause poor growth or dead spots
on leaves; and plant mortality. In addition, oil and other contaminants
from development and drilling activities throughout these areas could
enter the aquifer supplying the springs and seeps inhabited by Wright's
marsh thistle when the limestone layers are pierced by drilling
activities. An accidental oil spill or groundwater contamination has
the potential to pollute water sources that support Wright's marsh
thistle, and mining activities could alter or destroy habitat.
The largest occupied habitat area is less than 16 ha (40 ac), and
more than half the known populations are less than 2 ha (5 ac) in size.
Even a small, localized spill has the potential to contaminate and
destroy a population. The loss of even one of the eight populations
would result in loss of representation and redundancy to the species as
a whole. Because this species is comprised of small, isolated
populations, these stressors could potentially negatively affect the
thistle, but it is unclear whether these impacts would be localized or
widespread stressors as the interaction between contaminant spills and
groundwater and surface water hydrology is poorly understood.
Therefore, we have determined that oil and gas development and mining
functions as a stressor to the future viability of the species via
impacts to water sources that provide habitat for Wright's marsh
thistle.
[[Page 61468]]
Table 1--Stressors Impacting Each of the Eight Populations of Wright's Marsh Thistle
[USFWS 2017, chapter 4]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Stressors to population
-----------------------------------------------------------------------------------------------------
Decreased water availability
Population --------------------------------------------------- Native and
Groundwater and Livestock nonnative Oil and gas
Drought surface water Effects of grazing plants development
depletion climate change
--------------------------------------------------------------------------------------------------------------------------------------------------------
Eastern Populations
--------------------------------------------------------------------------------------------------------------------------------------------------------
Santa Rosa Basin.................................. XX XX XX XXX XX X
Bitter Lake NWR................................... XX XX XX ............... XX XX
Blue Spring....................................... XX XXX XX XX X XX
--------------------------------------------------------------------------------------------------------------------------------------------------------
Western Populations
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alamosa Springs................................... XXX XX XX X ............... X
Tularosa Creek.................................... XXX XX XX ............... X ...............
Silver Springs.................................... XXX XXX XX X ............... ...............
La Luz Canyon..................................... XXX XXX XX X ............... ...............
Karr/Haynes Canyon................................ XXX XXX XX X X ...............
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: XXX indicates a significant stressor to the population, XX indicates a moderate stressor to the population, and X indicates a mild stressor to the
population.
Conservation Measures and Regulatory Mechanisms
Minimal conservation of Wright's marsh thistle is occurring on the
Federal level. The Bitter Lake NWR manages invasive reeds in their
moist soil/wetland units where the species is located. This management
helps increase sunlight availability and decrease competition with
nonnative species. The NWR also recently received a grant to complete
seed collection efforts for Wright's marsh thistle. The Lincoln
National Forest does not have active conservation for the thistle, but
implements a 61-m (200-ft) buffer around occupied sites when projects
occur within or near occupied areas.
At the State level, Wright's marsh thistle is listed as endangered,
under the authority of the New Mexico Statutes Annotated 1978, at title
19 of the New Mexico Administrative Code at chapter 21, part 2, section
9 (19 NMAC 21.2.9). The provisions in New Mexico state law prohibit the
taking of endangered plants on all lands of New Mexico (except tribal
lands), except under valid permit issued by the State, and encourage
conservation by State government agencies. In this instance, ``taking''
means the removal, with the intent to possess, transport, export, sell,
or offer for sale. Further, if Wright's marsh thistle is listed under
the Act, the State may enter into agreements with Federal agencies to
administer and manage any area required for the conservation,
management, enhancement, or protection of listed species. Funds for
these activities could be made available under section 6 of the Act
(Cooperation with the States). Thus, the Federal protection afforded to
this plant by listing it as an endangered or threatened species would
be reinforced and supplemented by protection under State law. In
addition to the state endangered listing for Wright's marsh thistle,
some protection is offered to the species through Title 19 of the New
Mexico Administrative Code at chapter 15, part 2 (19 NMAC 15.2) which
outlines general environmental provisions for water and wildlife
relating to oil and gas operations including information on methods to
reduce risk of contamination to the surrounding habitat. While this
reduces the risks associated with oil and gas production to nearby
occupied locations of the thistle, the high volume of oil and gas
leases near these sites means the risk of impacts from a spill still
persist.
Future Scenarios Considered
As there are a range of possibilities regarding the intensity of
stressors (i.e., decreased water availability to habitat, ungulate
grazing, native and nonnative plants, oil and gas development, and
mining) acting on the populations, we forecast Wright's marsh thistle's
resiliency, representation, and redundancy under four plausible
scenarios in the SSA report. For these scenarios, we considered four
different trajectories for all threats acting on the species (i.e., all
threats increasing at two different rates, decreasing, or remaining at
the current level). We did not look at interactions between threats
(i.e., one threat increasing with another threat decreasing), as data
were not sufficient for this type of analysis. These four scenarios
incorporate the best available information on projection of threat data
up to 50 years in the future. Sources of data include, but are not
limited to, development (urban, agricultural, oil and gas and mining)
plans for various areas and climate change models. For example, we
referenced the City of Alamogordo's 50-year development plan for
projections of future water withdrawals. In regards to climate change
models, we used a moderate emissions climate change scenario of RCP 4.5
from the 2017 U.S. Climate Resilience Toolkit, which provides a range
of projections for temperature and precipitation through 2100 (NOAA
2017). We also used the U.S. Geological Survey's Monthly Water Balance
Model Futures Portal that provides projections out to the year 2095 for
changes in evapotranspiration (USGS 2017, entire). Some, but not all,
of the threats could be projected beyond 50 years into the future.
Therefore, to develop our future scenarios, we only used projection
information up to 50-years into the future, the timeframe that includes
projections for all future threats and for which we could predict the
expected future resiliency and overall condition for each population
based on our knowledge of the species' expected response to identified
threats.
First, the ``Continuing Current Conditions'' scenario projects the
condition of Wright's marsh thistle populations if the current risks to
population viability continue with the same trajectory as experienced
currently. Decreased water availability
[[Page 61469]]
continues to impact the populations via continuing levels of drought,
along with ground and surface water depletion. Grazing continues where
it has been occurring, and the impacts will accumulate. Competition
from native and nonnative plants continues, along with any current
impacts from oil and gas development. For this scenario, we used the
mean level of projected values in temperature (an increase in mean
daily maximum temperature of approximately 0.83 [deg]C (1.5 [deg]F)
over 50 years).
Second, the ``Optimistic'' scenario projects the condition of
Wright's marsh thistle populations if conservation measures are put in
place to limit the impacts of current risks to population viability,
including conservation efforts to address decreased water availability,
livestock grazing, and competition with native and nonnative plants.
For this scenario, we used the low level of projected values in
temperature (an increase in mean daily maximum temperature of
approximately 0.56 [deg]C (1.0 [deg]F) over 50 years and increases in
mean monthly potential evapotranspiration of 0 to 10 millimeters (mm)
(0 to 0.4 inches (in)) over 50 years), leading to less severe effects
of drought on the riparian ecosystems of which Wright's marsh thistle
is a part.
Third, the ``Major Effects'' scenario projects the condition of
Wright's marsh thistle if stressors on the populations are increased.
We expect a decrease in water availability, along with increased
negative impacts from grazing, native and nonnative plants, oil and gas
development, and mining. For this scenario, we used the moderate level
of projected values in temperature (an increase in mean daily maximum
temperature of approximately 1.7 [deg]C (3.0 [deg]F) over 50 years, and
increases in mean monthly potential evapotranspiration of 10 to 30 mm
(0.4 to 1.2 in) over 50 years), with increased impacts of drought.
Finally, the ``Severe Effects'' scenario projects the condition of
Wright's marsh thistle populations under the assumption that stressors
on the populations are highly increased. Compared to the ``Major
Effects'' scenario, we expect a further decrease in water availability,
along with further increased negative impacts from ungulate grazing,
native and nonnative plants, oil and gas development, and mining. For
this scenario, we used the high level of projected values in
temperature (an increase in mean daily maximum temperature of
approximately 2.8 [deg]C (5.0 [deg]F) over 50 years and increases in
mean monthly potential evapotranspiration of 30 to 80 mm (1.2 to 3.1
in) over 50 years) with increased impacts of drought.
Thus, we considered the range of potential likely scenarios that
represent different possibilities for how the stressors outlined above
may influence the future condition of the species. The results of this
analysis for each scenario are presented below in Table 2. For specific
details on how each scenario impacted the six factors (habitat
quantity, number of patches, abundance, reproduction, permanent root
saturation, and full sun) contributing to overall condition of each
population, refer to chapter 5 of the SSA report (USFWS 2017).
Table 2--Condition Ratings for each of the Eight Populations of Wright's Marsh Thistle Under Four Possible Future Scenarios
[USFWS 2017, Chapter 5]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Scenario 1: Continuing Scenario 3: Major Scenario 4: Severe
Population Current condition current conditions Scenario 2: Optimistic effects effects
--------------------------------------------------------------------------------------------------------------------------------------------------------
Eastern Populations
--------------------------------------------------------------------------------------------------------------------------------------------------------
Santa Rosa Basin............. Moderate............... Moderate............... High................... Moderate.............. Low.
Bitter Lake NWR.............. Moderate............... Moderate............... High................... Moderate.............. Low.
Blue Spring.................. Moderate............... Low.................... Moderate............... Low................... Low.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Western Populations.....................................................................................................................................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alamosa Springs.............. Low.................... Low.................... Low.................... Very Low.............. Extirpated.
Tularosa Creek............... Very Low............... Extirpated............. Very Low............... Extirpated............ Extirpated.
Silver Springs............... Very Low............... Very Low............... Very Low............... Extirpated............ Extirpated.
La Luz Canyon................ Very Low............... Very Low............... Very Low............... Extirpated............ Extirpated.
Karr/Haynes Canyon........... Low.................... Low.................... Low.................... Low................... Extirpated.
--------------------------------------------------------------------------------------------------------------------------------------------------------
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have not
only analyzed individual effects on the species, but we have also
analyzed their potential cumulative effects. We incorporate the
cumulative effects into our SSA analysis when we characterize the
current and future condition of the species. Our assessment of the
current and future conditions encompasses and incorporates the threats
individually and cumulatively. Our current and future condition
assessment is iterative because it accumulates and evaluates the
effects of all the factors that may be influencing the species,
including threats and conservation efforts. Because the SSA framework
considers not just the presence of the factors, but to what degree they
collectively influence risk to the entire species, our assessment
integrates the cumulative effects of the factors and replaces a
standalone cumulative effects analysis.
Determination of the Status of Wright's Marsh Thistle
Section 4 of the Act (16 U.S.C. 1533), and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines ``endangered species'' as a species
``in danger of extinction throughout all or a significant portion of
its range,'' and ``threatened species'' as a species ``likely to become
an endangered species within the foreseeable future throughout all or a
significant portion of its range.'' The Act requires that we determine
whether a species meets the definition of ``endangered species'' or
``threatened species'' because of any of the following factors: (A) The
present or threatened destruction, modification, or curtailment of its
habitat or range; (B) overutilization for commercial, recreational,
scientific, or educational
[[Page 61470]]
purposes; (C) disease or predation; (D) the inadequacy of existing
regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence.
Status Throughout All of Its Range
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
and the cumulative effect of the threats under the section 4(a)(1)
factors to Wright's marsh thistle.
Wright's marsh thistle is a narrow endemic (restricted to a small
range) with a historical, documented decline. The historical range of
the species included 10 locations in New Mexico, 2 locations in
Arizona, and 2 locations in Mexico. Wright's marsh thistle has been
extirpated from all previously known locations in Arizona and Mexico,
as well as two locations in New Mexico. In addition, the currently
extant populations have declined in population numbers over time based
on comparisons between 1995 and 2012 surveys (Sivinski 1996 entire,
2012 entire). As a result, the remaining extant area of the eight
populations has contracted in recent years, and is currently
approximately only 43 ha (106 ac). Of the remaining eight extant
populations, three have moderate resiliency, two have low resiliency,
and three have very low resiliency and are likely at risk of
extirpation (USFWS 2017). The species historically had representation
in the form of two morphologically distinct and geographically separate
forms; the species continues to maintain representation currently in
these forms, although population sizes have decreased.
Wright's marsh thistle faces threats from habitat degradation due
to decreased water availability, livestock grazing, native and
nonnative plants, and oil and gas development and mining (Factor A).
These threats, which are expected to be exacerbated by continued
drought and the effects of climate change (Factor E), were important
factors in our assessment of the future viability of Wright's marsh
thistle. In addition, small, isolated populations and lack of
connectivity contribute to the thistle's low resiliency to stochastic
events (Factor E). We expect a further decrease in water availability,
along with increased negative impacts from grazing, native and
nonnative plants, oil and gas development, and mining. Given current
and anticipated future decreases in resiliency, populations would
become more vulnerable to extirpation from stochastic events, in turn,
resulting in concurrent losses in representation and redundancy. The
range of plausible future scenarios of the species' habitat conditions
and population factors suggest possible extirpation in as many as five
of eight currently extant populations. The most optimistic model
predicted that while no populations were likely to become extirpated,
three of the eight populations were expected to have very low
resiliency.
As assessed in the SSA report and displayed above in Table 2, the
current condition rankings for the eight extant populations show that
three populations are in moderate condition, two population are in low
condition, and three populations are in very low condition. Wright's
marsh thistle also exhibits representation across two morphologically
distinct and geographically separate forms. While threats are currently
acting on the thistle throughout its range, the three eastern
populations (Santa Rosa, Bitter Lake, and Blue Springs) were found to
have high or moderate resiliency for their current condition.
Therefore, we did not find that the thistle is currently in danger of
extinction throughout all of its range, based on the current condition
of the species; thus, an endangered status is not appropriate.
Wright's marsh thistle meets the definition of a threatened species
because it is facing threats across its range that have led to reduced
resiliency, redundancy, and representation. According to our assessment
of plausible future scenarios, the species is likely to become an
endangered species within the foreseeable future throughout all of its
range. For the purposes of this determination, the foreseeable future
is considered approximately 25 years into the future. This timeframe
was arrived at by looking at the various future projections associated
with data from the Intergovernmental Panel on Climate Change (IPCC),
U.S. Climate Resilience Toolkit, future development plans from the City
of Alamogordo and Santa Rosa, and grazing management information from
the U.S. Forest Service. These data sources covered a variety of time
frames, but all covered a span of at least 50 years. We therefore
looked at the projections from these sources in each of our future
scenarios out to three time steps: 10 years, 25 years, and 50 years. We
found that as the projections for the various stressors went past 25
years in the scenarios, the uncertainties associated with some of those
projections, particularly water use and depletion, increased. Thus, for
the purposes of this determination, we were most confident in setting
the foreseeable future at 25 years.
Our analysis of the species' current and future conditions show
that the population and habitat factors used to determine the
resiliency, representation, and redundancy for Wright's marsh thistle
are likely to continue to decline to the degree that the thistle is
likely to become in danger of extinction within the foreseeable future
throughout all or a significant portion of its range. While the
``Optimistic'' scenario resulted in two of the populations with
moderate current condition improving to high condition due to increased
conservation measures, the other three scenarios all resulted in
decreased resiliency for some if not most populations. The ``Continuing
Condition'' scenario resulted in one of the current eight extant
populations becoming extirpated, the ``Major Effects'' scenario
resulted in three of the current eight extant populations becoming
extirpated, and the ``Severe Effects'' scenario resulted in five of the
current eight extant populations becoming extirpated. Based on our
understanding of the increasing trends in threats as analyzed into the
foreseeable future (i.e., 25 years), the likelihood of occurrence of
the ``Major Effects'' and ``Severe Effects'' scenarios increases as
time progresses. The decreased resiliency of populations projected in
three of the four scenarios would lead to subsequent losses in
redundancy and representation, and an overall decline in species
viability in the foreseeable future. Further details on the likelihood
of scenarios can be found in chapter 5 of the SSA report (USFWS 2017).
Due to the continuation of threats at increasing levels, we
anticipate a severe reduction in the thistle's future overall range and
the extirpation of several populations. Furthermore, we anticipate that
the variety of factors acting in combination on the remaining habitat
and populations are likely to reduce the overall viability of the
species to a dangerously low level. In addition, the conservation
measures currently in place are not adequate to overcome the negative
impacts from increasing threats, and future conservation measures are
not considered highly plausible. The risk of extinction will be high
because the remaining populations are small, are isolated, and have
limited or no potential for recolonization after local population
extirpations. Thus, after assessing the best available information, we
determine that Wright's marsh thistle is not currently in danger of
extinction, but is likely to become in danger of extinction within the
[[Page 61471]]
foreseeable future, throughout all of its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. The court in Center for Biological Diversity v. Everson,
2020 WL 437289 (D.D.C. Jan. 28, 2020) (Center for Biological
Diversity), vacated the aspect of the 2014 Significant Portion of its
Range Policy that provided that the Services do not undertake an
analysis of significant portions of a species' range if the species
warrants listing as threatened throughout all of its range. Therefore,
we proceed to evaluating whether the species is endangered in a
significant portion of its range--that is, whether there is any portion
of the species' range for which both (1) the portion is significant;
and, (2) the species is in danger of extinction in that portion.
Depending on the case, it might be more efficient for us to address the
``significance'' question or the ``status'' question first. We can
choose to address either question first. Regardless of which question
we address first, if we reach a negative answer with respect to the
first question that we address, we do not need to evaluate the other
question for that portion of the species' range.
Following the court's holding in Center for Biological Diversity,
we now consider whether there are any significant portions of the
species' range where the species is in danger of extinction now (i.e.,
endangered). In undertaking this analysis for Wright's marsh thistle,
we choose to address the status question first--we consider information
pertaining to the geographic distribution of both the species and the
threats that the species faces to identify any portions of the range
where the species is endangered.
For Wright's marsh thistle, we considered whether the threats are
geographically concentrated in any portion of the species' range at a
biologically meaningful scale. In light of the species' needs (i.e.,
permanent root saturation; alkaline soils; full, direct, or nearly full
sunlight; and abundant pollinators), we examined the following threats
(including cumulative threats): Habitat degradation due to decreased
water availability, livestock grazing, native and non-native plants,
and oil and gas development and mining; continued drought and the
effects of climate change; and small, isolated populations. Each
population of Wright's marsh thistle was determined to have some level
of impact from each threat listed above, with variations in source and
intensity. For example, habitat degradation due to decreased water
availability at the Santa Rosa population location is influenced by
agricultural use, while the La Luz Canyon population location is
influenced primarily by municipal use. In another example, livestock
grazing tends to be present with greater intensity near the Santa Rosa
population location than near the La Luz Canyon population location.
While there may be some variation in the source and intensity of each
individual threat at each population location, we found no
concentration of threats in any portion of Wright's marsh thistle's
range at a biologically meaningful scale. Thus, there are no portions
of the species' range where the species has a different status from its
rangewide status.
Therefore, no portion of the species' range provides a basis for
determining that the species is in danger of extinction in a
significant portion of its range, and we determine that the species is
likely to become in danger of extinction within the foreseeable future
throughout all of its range. This is consistent with the courts'
holdings in Desert Survivors v. Department of the Interior, No. 16-cv-
01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), and Center for
Biological Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz.
2017).
Determination of Status
Our review of the best available scientific and commercial
information indicates that Wright's marsh thistle meets the definition
of a threatened species. Therefore, we propose to list Wright's marsh
thistle as a threatened species in accordance with sections 3(20) and
4(a)(1) of the Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing results in public awareness and
conservation by Federal, State, Tribal, and local agencies; private
organizations; and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies and
the prohibitions against certain activities are discussed, in part,
below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Subsection 4(f) of the Act calls for the Service to develop
and implement recovery plans for the conservation of endangered and
threatened species. The recovery planning process involves the
identification of actions that are necessary to halt or reverse the
species' decline by addressing the threats to its survival and
recovery. The goal of this process is to restore listed species to a
point where they are secure, self-sustaining, and functioning
components of their ecosystems.
Recovery planning includes the development of a recovery outline
shortly after a species is listed and subsequent preparation of a draft
and final recovery plan. The recovery outline guides the immediate
implementation of urgent recovery actions and describes the process to
be used to develop a recovery plan. Revisions of the plan may be done
to address continuing or new threats to the species, as new substantive
information becomes available. The recovery plan also identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or for
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Recovery teams (composed of
species experts, Federal and State agencies, nongovernmental
organizations, and stakeholders) are often established to develop
recovery plans. When completed, the recovery outline, draft recovery
plan, and the final recovery plan will be available on our website
(https://www.fws.gov/endangered).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To
[[Page 61472]]
achieve recovery of these species requires cooperative conservation
efforts on private, State, and Tribal lands.
If this species is listed, funding for recovery actions will be
available from a variety of sources, including Federal budgets, State
programs, and cost share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, the State of New Mexico would be
eligible for Federal funds to implement management actions that promote
the protection or recovery of Wright's marsh thistle. Information on
our grant programs that are available to aid species recovery can be
found at: https://www.fws.gov/grants.
Although Wright's marsh thistle is only proposed for listing under
the Act at this time, please let us know if you are interested in
participating in recovery efforts for this species. Additionally, we
invite you to submit any new information on this species whenever it
becomes available and any information you may have for recovery
planning purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as an
endangered or threatened species and with respect to its critical
habitat, if any is designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any action that is likely to jeopardize the
continued existence of a species proposed for listing or result in
destruction or adverse modification of proposed critical habitat. If a
species is listed subsequently, section 7(a)(2) of the Act requires
Federal agencies to ensure that activities they authorize, fund, or
carry out are not likely to jeopardize the continued existence of the
species or destroy or adversely modify its critical habitat. If a
Federal action may affect a listed species or its critical habitat, the
responsible Federal agency must enter into consultation with the
Service.
Federal agency actions within the species' habitat that may require
conference or consultation or both as described in the preceding
paragraph include management and any other landscape-altering
activities on Federal lands administered by the U.S. Fish and Wildlife
Service and U.S. Forest Service; issuance of section 404 Clean Water
Act (33 U.S.C. 1251 et seq.) permits by the U.S. Army Corps of
Engineers; and construction and maintenance of roads or highways by the
Federal Highway Administration.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed, those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a proposed
listing on proposed and ongoing activities within the range of the
species proposed for listing. The discussion below regarding protective
regulations under section 4(d) of the Act complies with our policy.
II. Proposed Rule Issued Under Section 4(d) of the Act
Background
Section 4(d) of the Act contains two sentences. The first sentence
states that the ``Secretary shall issue such regulations as he deems
necessary and advisable to provide for the conservation'' of species
listed as threatened. The U.S. Supreme Court has noted that statutory
language like ``necessary and advisable'' demonstrates a large degree
of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)).
Conservation is defined in the Act to mean ``the use of all methods and
procedures which are necessary to bring any endangered species or
threatened species to the point at which the measures provided pursuant
to [the Act] are no longer necessary.'' Additionally, the second
sentence of section 4(d) of the Act states that the Secretary ``may by
regulation prohibit with respect to any threatened species any act
prohibited under section 9(a)(1), in the case of fish or wildlife, or
section 9(a)(2), in the case of plants.'' Thus, the combination of the
two sentences of section 4(d) provides the Secretary with wide latitude
of discretion to select and promulgate appropriate regulations tailored
to the specific conservation needs of the threatened species. The
second sentence grants particularly broad discretion to the Service
when adopting the prohibitions under section 9.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, courts have upheld rules
developed under section 4(d) as a valid exercise of agency authority
where they prohibited take of threatened wildlife, or include a limited
taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007
U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council
v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D.
Wash. 2002)). Courts have also upheld 4(d) rules that do not address
all of the threats a species faces (see State of Louisiana v. Verity,
853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when
the Act was initially enacted, ``once an animal is on the threatened
list, the Secretary has an almost infinite number of options available
to him with regard to the permitted activities for those species. He
may, for example, permit taking, but not importation of such species,
or he may choose to forbid both taking and importation but allow the
transportation of such species'' (H.R. Rep. No. 412, 93rd Cong., 1st
Sess. 1973).
Exercising its authority under section 4(d), the Service has
developed a proposed rule that is designed to address Wright's marsh
thistle's specific threats and conservation needs. Although the statute
does not require the Service to make a ``necessary and advisable''
finding with respect to the adoption of specific prohibitions under
section 9, we find that this rule as a whole satisfies the requirement
in section 4(d) of the Act to issue regulations deemed necessary and
advisable to provide for the conservation of the Wright's marsh
thistle. As discussed above under Summary of Biological Status and
Threats, the Service has concluded that Wright's marsh thistle is
likely to become in danger of extinction within the foreseeable future
primarily due to habitat loss and modification. The provisions of this
proposed 4(d) rule would promote conservation of the species by
encouraging management of the landscape in ways that meet landowner's
management priorities while providing for the conservation needs of
Wright's marsh thistle. The provisions of this proposed rule are one of
many tools that the Service would use to promote the conservation of
the Wright's marsh thistle. This proposed 4(d) rule would apply only if
and when the Service makes final the listing of Wright's marsh thistle
as a threatened species.
Provisions of the Proposed 4(d) Rule
This proposed 4(d) rule would provide for the conservation of
Wright's marsh thistle by prohibiting, except as otherwise authorized
or permitted, any person subject to the jurisdiction of the United
States from the following: Removing and reducing to possession the
species from areas under Federal jurisdiction; maliciously damaging or
destroying the species on any area under Federal jurisdiction; or
removing, cutting, digging up, or damaging or
[[Page 61473]]
destroying the species on any area under Federal jurisdiction in
knowing violation of any law or regulation of any State or in the
course of any violation of a State criminal trespass law. Almost 30
percent of occupied Wright's marsh thistle habitat is on Federal land.
As discussed in the Summary of Biological Status and Threats
(above), habitat loss and modification are affecting the viability of
Wright's marsh thistle. A range of activities that occur on Federal
land have the potential to impact the thistle, including changes in
water availability, ungulate grazing, and oil and gas development. The
regulation of these activities through this 4(d) rule would help
enhance the conservation of Wright's marsh thistle by preserving the
species' remaining populations on Federal lands and decrease
synergistic, negative effects from other stressors. As a whole, the
proposed 4(d) rule would help in the efforts to recover the species.
We may issue permits to carry out otherwise prohibited activities,
including those described above, involving threatened plants under
certain circumstances. Regulations governing permits for threatened
plants are codified at 50 CFR 17.72, which states that ``the Director
may issue a permit authorizing any activity otherwise prohibited with
regard to threatened species.'' That regulation also states, ``The
permit shall be governed by the provisions of this section unless a
special rule applicable to the plan is provided in sections 17.73 to
17.78.'' We interpret that second sentence to mean that permits for
threatened species are governed by the provisions of section 17.72
unless a special rule provides otherwise. We recently promulgated
revisions to section 17.71 providing that section 17.71 will no longer
apply to plants listed as threatened in the future. We did not intend
for those revisions to limit or alter the applicability of the
permitting provisions in section 17.72, or to require that every
special rule spell out any permitting provisions that apply to that
species and special rule. To the contrary, we anticipate that
permitting provisions would generally be similar or identical for most
species, so applying the provisions of section 17.72 unless a special
rule provides otherwise would likely avoid substantial duplication.
Moreover, this interpretation brings section 17.72 in line with the
comparable provision for wildlife at 50 CFR 17.32, in which the second
sentence states, ``Such permit shall be governed by the provisions of
this section unless a special rule applicable to the wildlife,
appearing in sections 17.40 to 17.48, of this part provides
otherwise.'' Under 50 CFR 17.12, with regard to threatened plants, a
permit may be issued for the following purposes: Scientific purposes,
to enhance propagation or survival, for economic hardship, for
botanical or horticultural exhibition, for educational purposes, or
other purposes consistent with the purposes of the Act. Additional
statutory exemptions from the prohibitions are found in sections 9 and
10 of the Act.
The Service recognizes the special and unique relationship with our
state natural resource agency partners in contributing to conservation
of listed species. State agencies often possess scientific data and
valuable expertise on the status and distribution of endangered,
threatened, and candidate species of wildlife and plants. State
agencies, because of their authorities and their close working
relationships with local governments and landowners, are in a unique
position to assist the Services in implementing all aspects of the Act.
In this regard, section 6 of the Act provides that the Services shall
cooperate to the maximum extent practicable with the States in carrying
out programs authorized by the Act. Therefore, any qualified employee
or agent of a State conservation agency which is a party to a
cooperative agreement with the Service in accordance with section 6(c)
of the Act, who is designated by his or her agency for such purposes,
would be able to conduct activities designed to conserve Wright's marsh
thistle that may result in otherwise prohibited activities without
additional authorization.
Nothing in this proposed 4(d) rule would change in any way the
recovery planning provisions of section 4(f) of the Act, the
consultation requirements under section 7 of the Act, or the ability of
the Service to enter into partnerships for the management and
protection of Wright's marsh thistle. However, interagency cooperation
may be further streamlined through planned programmatic consultations
for the species between Federal agencies and the Service, where
appropriate. We ask the public, particularly State agencies and other
interested stakeholders that may be affected by the proposed 4(d) rule,
to provide comments and suggestions regarding additional guidance and
methods that the Service could provide or use, respectively, to
streamline the implementation of this proposed 4(d) rule (see
Information Requested, above).
III. Proposed Designation of Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features.
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
[[Page 61474]]
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the Federal agency would be required to consult
with the Service under section 7(a)(2) of the Act. However, even if the
Service were to conclude that the proposed activity would result in
destruction or adverse modification of the critical habitat, the
Federal action agency and the landowner are not required to abandon the
proposed activity, or to restore or recover the species; instead, they
must implement ``reasonable and prudent alternatives'' to avoid
destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical or biological features that occur in specific areas, we focus
on the specific features that are essential to support the life-history
needs of the species, including, but not limited to, water
characteristics, soil type, geological features, prey, vegetation,
symbiotic species, or other features. A feature may be a single habitat
characteristic, or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. When designating critical habitat, the Secretary will first
evaluate areas occupied by the species. The Secretary will only
consider unoccupied areas to be essential where a critical habitat
designation limited to geographical areas occupied by the species would
be inadequate to ensure the conservation of the species. In addition,
for an unoccupied area to be considered essential, the Secretary must
determine that there is a reasonable certainty both that the area will
contribute to the conservation of the species and that the area
contains one or more of those physical or biological features essential
to the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines, provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report and information developed during the
listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and, (3) the Act's prohibitions on certain actions that may
affect the species or its habitat. Federally funded or permitted
projects affecting listed species outside their designated critical
habitat areas may still result in jeopardy findings in some cases.
These protections and conservation tools will continue to contribute to
recovery of this species. Similarly, critical habitat designations made
on the basis of the best available information at the time of
designation will not control the direction and substance of future
recovery plans, habitat conservation plans, or other species
conservation planning efforts if new information available at the time
of these planning efforts calls for a different outcome.
Prudency Determination
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12), require that, to the maximum extent
prudent and determinable, the Secretary shall designate critical
habitat at the time the species is determined to be an endangered or
threatened species. Our regulations (50 CFR 424.12(a)(1)) state that
the Secretary may, but is not required to, determine that a designation
would not be prudent in the following circumstances:
(i) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(ii) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(iii) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States;
(iv) No areas meet the definition of critical habitat; or
(v) The Secretary otherwise determines that designation of critical
habitat would not be prudent based on the best scientific data
available.
As discussed earlier in this document, there is currently no
imminent threat of
[[Page 61475]]
collection or vandalism identified under Factor B for this species, and
identification and mapping of critical habitat is not expected to
initiate any such threat. In our SSA and proposed listing determination
for Wright's marsh thistle, we determined that the present or
threatened destruction, modification, or curtailment of habitat or
range is a threat to Wright's marsh thistle and that those threats in
some way can be addressed by section 7(a)(2) consultation measures. The
species occurs wholly in the jurisdiction of the United States, and we
are able to identify areas that meet the definition of critical
habitat. Therefore, because none of the circumstances enumerated in our
regulations at 50 CFR 424.12(a)(1) has been met and because there are
no other circumstances the Secretary has identified for which this
designation of critical habitat would be not prudent, we have
determined that the designation of critical habitat is prudent for
Wright's marsh thistle.
Critical Habitat Determinability
Having determined that designation is prudent, under section
4(a)(3) of the Act we must find whether critical habitat for Wright's
marsh thistle is determinable. Our regulations at 50 CFR 424.12(a)(2)
state that critical habitat is not determinable when one or both of the
following situations exist:
(i) Data sufficient to perform required analyses are lacking, or
(ii) The biological needs of the species are not sufficiently well
known to identify any area that meets the definition of ``critical
habitat.''
When critical habitat is not determinable, the Act allows the
Service an additional year to publish a critical habitat designation
(16 U.S.C. 1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological
needs of the species and habitat characteristics where this species is
located. This and other information represent the best scientific data
available and led us to conclude that the designation of critical
habitat is determinable for Wright's marsh thistle.
Physical or Biological Features
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas within the geographical
area occupied by the species at the time of listing to designate as
critical habitat, we consider the physical or biological features that
are essential to the conservation of the species and which may require
special management considerations or protection. The regulations at 50
CFR 424.02 define ``physical or biological features essential to the
conservation of the species'' as the features that occur in specific
areas and that are essential to support the life-history needs of the
species, including, but not limited to, water characteristics, soil
type, geological features, sites, prey, vegetation, symbiotic species,
or other features. A feature may be a single habitat characteristic or
a more complex combination of habitat characteristics. Features may
include habitat characteristics that support ephemeral or dynamic
habitat conditions. Features may also be expressed in terms relating to
principles of conservation biology, such as patch size, distribution
distances, and connectivity. For example, physical features essential
to the conservation of the species might include gravel of a particular
size required for spawning, alkali soil for seed germination,
protective cover for migration, or susceptibility to flooding or fire
that maintains necessary early-successional habitat characteristics.
Biological features might include prey species, forage grasses,
specific kinds or ages of trees for roosting or nesting, symbiotic
fungi, or a particular level of nonnative species consistent with
conservation needs of the listed species. The features may also be
combinations of habitat characteristics and may encompass the
relationship between characteristics or the necessary amount of a
characteristic needed to support the life history of the species.
In considering whether features are essential to the conservation
of the species, the Service may consider an appropriate quality,
quantity, and spatial and temporal arrangement of habitat
characteristics in the context of the life-history needs, condition,
and status of the species. These characteristics include, but are not
limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Water availability is a requirement for three of the four life
stages of Wright's marsh thistle's life cycle: Seedlings, rosettes, and
mature plants. Optimal habitat should include seeps, springs, cienegas,
and streams spreading water normally both above and below ground, with
surface or subsurface water flow. The water present in this habitat
should be sufficient to allow for permanent root saturation of Wright's
marsh thistle in order to provide conditions needed for successful
reproduction and survival.
Alkaline soils are required by all four life stages of Wright's
marsh thistle's life cycle: Seeds, seedlings, rosettes, and mature
plants. These soils are typically found associated with alkaline
springs and seeps ranging from low desert up to ponderosa pine forest.
Often, water may be available on the landscape in a variety of riparian
areas; however, without the presence of alkaline soils in conjunction
with water availability, Wright's marsh thistle is unlikely to maintain
viability.
Full sunlight is necessary for development of rosettes into mature
plants, as well as the survival of mature plants. Optimal habitat
includes areas which provide access to sufficient sunlight exposure
with no obstructions of sunlight during most life stages of Wright's
marsh thistle. These areas should not have dense vegetative cover,
which creates competition for sunlight and can negatively impact
maturation and flowering of the thistle.
Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring
Diverse native floral communities are necessary to attract
pollinators in order to complete cross pollination of Wright's marsh
thistle plants. These communities vary depending on location but may
include bulrush (Scirpus spp.), beaked spikerush (Eleocharis
rostellata), Pecos sunflower (Helianthus paradoxus), rush (Juncus
spp.), cattail (Typha spp.), and other native flowering plants
(Sivinski 1996, pp. 2-4). Many generalist pollinators may visit
Wright's marsh thistle (Sivinski 2017, entire). The most common
pollinators of the thistle are bees, especially bumble bees (Bombus
spp.) (Sivinski 2017, entire). A diverse native floral community
ensures sufficient pollinators to promote cross pollination within and
among patches of Wright's marsh thistle.
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential to
the conservation of Wright's marsh thistle from studies of the species'
habitat, ecology, and life history as described below. Additional
information can be found in the SSA report (USFWS 2017,
[[Page 61476]]
p. 39) available on https://www.regulations.gov under Docket No. FWS-R2-
ES-2018-0071). We have determined that the following physical or
biological features are essential to the conservation of Wright's marsh
thistle:
Water-saturated soils with surface or subsurface water
flow that allows permanent root saturation and seed germination;
Alkaline soils;
Full sunlight; and
Diverse floral communities to attract pollinators.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection. As mentioned above, in the case of Wright's marsh thistle,
these features include water-saturated soils with surface or subsurface
water flow that allows permanent root saturation and seed germination,
alkaline soils, full sunlight, and diverse floral communities to
attract pollinators. The features may require special management
considerations or protection to reduce the following threats: Ground
and surface water depletion, increasing drought and changes in climate
change, livestock grazing, oil and gas development and mining, and
native and nonnative plants. Localized stressors may also include
herbicide use and mowing. The species occupies small areas of seeps,
springs, and wetland habitat in an arid region that is experiencing
drought as well as ongoing and future water withdrawals. The species'
highly specific requirements of saturated soils with surface or
subsurface water flow make it particularly vulnerable to desiccation
and loss of suitable habitat. Furthermore, the thistle's need for full
sunlight makes it particularly vulnerable to native and nonnative grass
planting and habitat encroachment.
Special management considerations or protections are required
within critical habitat areas to address these threats. Management
activities that could ameliorate these threats include, but are not
limited to: (1) Conservation efforts to ensure sufficient water
availability; (2) managing livestock grazing via the use of exclosures;
(3) control of native and nonnative plants via controlled burning or
mechanical treatments; (4) spill prevention and groundwater protection
during oil and gas development and mining; (5) watershed/wetland
restoration efforts; and (6) efforts to restore a diverse floral
community sufficient to attract pollinators.
These management activities would protect the physical or
biological features for Wright's marsh thistle by providing for surface
or subsurface water flow for permanent root saturation, soil alkalinity
necessary for all life stages, the availability of direct sunlight for
plant development, and habitat for pollinators to complete cross
pollination of the thistle. Additionally, management of critical
habitat lands would help limit the impacts of current risks to
population viability.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific and commercial data available to designate critical habitat.
In accordance with the Act and our implementing regulations at 50 CFR
424.12(b), we review available information pertaining to the habitat
requirements of the species and identify specific areas within the
geographical area occupied by the species at the time of listing and
any specific areas outside the geographical area occupied by the
species to be considered for designation as critical habitat. We are
not currently proposing to designate any areas outside the geographical
area occupied by the species because we did not find any areas that
were essential for the conservation of the species.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
SSA report and information developed during the listing process for the
species. Additional information sources may include any generalized
conservation strategy, criteria, or outline that may have been
developed for the species; articles in peer-reviewed journals;
conservation plans developed by States and counties; scientific status
surveys and studies; biological assessments; other unpublished
materials; or experts' opinions or personal knowledge. In this case, we
used existing occurrence data for Wright's marsh thistle and
information on the habitat and ecosystems upon which the species
depends. These sources of information included, but were not limited
to:
(1) Data used to prepare the species status assessment and this
proposed rule to list the species;
(2) Information from biological surveys;
(3) Various agency reports and databases;
(4) Information from the U.S. Forest Service and other cooperators;
(5) Information from species experts;
(6) Data and information presented in academic research theses; and
(7) Regional Geographic Information System (GIS) data (such as
species occurrence data, land use, topography, aerial imagery, soil
data, wetland data, and land ownership maps) for area calculations and
mapping.
Areas Occupied at the Time of Listing
The proposed critical habitat designation includes currently
occupied sites within the species' historical range that have retained
the necessary physical and biological features that will allow for the
maintenance and expansion of existing populations. Wright's marsh
thistle was historically known to occur in an additional site in
Arizona (Sivinski 2012, p. 2). The single location in Arizona was
collected in 1851 from San Bernardino Cienega, which straddles the
international border with Mexico; the location no longer has suitable
wetland habitat on the Arizona side of the line (Baker 2011, p. 7), and
we do not consider the site essential for the conservation of the
thistle because of the lack of suitable habitat and very low
restoration potential. Ten historical occurrences occurred in New
Mexico, but in a recent search effort at one of the sites (Lake
County), the thistle was not found (Sivinski 2011, p. 40) and the
habitat was found to be converted to an impervious surface. Another of
the 10 records (Rattlesnake Springs, Eddy County) is now thought to be
a hybrid between Wright's marsh thistle and Texas thistle (C. texanum)
(NMRPTC 2009, p. 2), and the site where it was recorded is now a golf
course. We do not consider either of these two sites in New Mexico to
be essential for the conservation of the thistle, because the species
is no longer present, the habitat is no longer available, or the
species was misidentified. However, the remaining eight locations in
New Mexico meet the definition of areas occupied by the thistle at the
time of listing; they are: Santa Rosa, Guadalupe County; Bitter Lake
NWR, Chaves County; Blue Spring, Eddy County; La Luz Canyon, Karr/
Haynes Canyon, Silver Springs, and Tularosa Creek, Otero County; and
Alamosa Creek, Socorro County.
In summary, for areas within the geographic area occupied by the
species at the time of listing, we delineated critical habitat unit
boundaries using the following process:
(1) We obtained point observations of all currently occupied areas;
[[Page 61477]]
(2) We drew minimum convex polygons around the point observations;
and
(3) We expanded the polygons to include all adjacent areas
containing the essential physical and biological features (specifically
the wetted area/moist soil outside of highly vegetated locations) to
support life-history processes essential to the conservation of the
species.
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands lack
physical or biological features necessary for Wright's marsh thistle.
The scale of the maps we prepared under the parameters for publication
within the Code of Federal Regulations may not reflect the exclusion of
such developed lands. Any such lands inadvertently left inside critical
habitat boundaries shown on the maps of this proposed rule have been
excluded by text in the proposed rule and are not proposed for
designation as critical habitat. Therefore, if the critical habitat is
finalized as proposed, a Federal action involving these lands would not
trigger section 7 consultation with respect to critical habitat and the
requirement of no adverse modification unless the specific action would
affect the physical or biological features in the adjacent critical
habitat.
We propose for designation as critical habitat lands that we have
determined are occupied at the time of listing and contain one or more
of the physical or biological features that are essential to support
life-history processes of the species. We are not proposing to
designate any areas that are not currently occupied by the species.
Eight units and 13 subunits are proposed for designation based on
one or more of the physical or biological features being present to
support Wright's marsh thistle's life-history processes. All eight
units contain all of the identified physical or biological features and
support multiple life-history processes. Some subunits contain only
some of the physical or biological features necessary to support
Wright's marsh thistle's particular use of that habitat.
The proposed critical habitat designation is defined by the map or
maps, as modified by any accompanying regulatory text, presented at the
end of this document under Proposed Regulation Promulgation. We include
more detailed information on the boundaries of the critical habitat
designation in the preamble of this document. We will make the
coordinates or plot points or both on which each map is based available
to the public on https://www.regulations.gov at Docket No. FWS-R2-ES-
2018-0071 and on the New Mexico Ecological Services' website at https://www.fws.gov/southwest/es/NewMexico/index.cfm.
Proposed Critical Habitat Designation
We propose to designate 64.3 ha (159 ac) in 8 units and 13 subunits
as critical habitat for Wright's marsh thistle. The critical habitat
areas we describe below constitute our current best assessment of areas
that meet the definition of critical habitat for the species. Table 3
provides the approximate area of each proposed critical habitat unit.
Table 4 breaks down the approximate percentage and size of the total
critical habitat designation by ownership type. Table 5 provides
currently listed species with occupied habitat on, and designated
critical habitat that overlaps with, proposed critical habitat for
Wright's marsh thistle. Species with existing critical habitat that
overlaps with proposed critical habitat for Wright's marsh thistle
include the Koster's springsnail (Juturnia kosteri), Noel's amphipod
(Gammarus desperatus), Roswell springsnail (Pyrgulopsis roswellensis),
Pecos sunflower (Helianthus paradoxus), and the New Mexico meadow
jumping mouse (Zapus hudsonius luteus). Other listed species in the
boundaries of proposed critical habitat include the Alamosa springsnail
(Tryonia alamosae), Chiricahua leopard frog (Lithobates
chiricahuensis), least tern (Sterna antillarum), and Pecos gambusia
(Gambusia nobilis). Three other listed species (or their critical
habitat) that are found in close proximity (<1609 m (1 mi)) to proposed
critical habitat for Wright's marsh thistle include the pecos pupfish
(Cyprinodon pecosensis), the Sacramento prickly poppy (Argemone
pinnatisecta), and the Sacramento Mountains thistle.
Table 3--Proposed Critical Habitat Units for Wright's Marsh Thistle
----------------------------------------------------------------------------------------------------------------
Unit No. and name Subunit No. and name Ownership Area
----------------------------------------------------------------------------------------------------------------
1--Santa Rosa.................... 1a--Blue Hole City of Santa Rosa. 0.93 ha (2.3 ac).
Hatchery.
1b--Blue Hole Road State.............. 0.45 ha (1.1 ac).
South.
1c--State Highway 91 State.............. 12.2 ha (30.1 ac).
North.
1d--Santa Rosa City of Santa Rosa. 0.97 ha (2.4 ac).
Ballpark South.
1e--State Highway 91 City of Santa Rosa. 5.9 ha (14.6 ac).
South. Private............ 0.78 ha (1.92 ac).
1f--Perch Lake...... City of Santa Rosa. 1.9 ha (4.6 ac).
1g--Sheehan Trust... Private............ 2.4 ha (6.0 ac).
1h--Freeman Property City of Santa Rosa. 0.18 ha (0.44 ac).
Private............ 0.91 ha (2.24 ac).
2--Alamosa Springs............... .................... Private............ 1.58 ha (3.9 ac).
3--Bitter Lake................... 3a--NWR Unit 5...... U.S. Fish and 3.16 ha (7.8 ac).
Wildlife Service.
3b--NWR Unit 6...... U.S. Fish and 15.9 ha (39.2 ac).
Wildlife Service.
4--Tularosa Creek................ .................... Tribal............. 0.65 ha (1.6 ac).
5--La Luz Canyon................. .................... U.S. Forest Service 0.01 ha (0.03 ac).
6--Silver Springs................ .................... U.S. Forest Service 0.38 ha (0.95 ac).
Tribal............. 0.23 ha (0.58 ac).
7--Karr/Haynes Canyon............ 7a--Haynes Canyon Private............ 0.008 ha (0.02 ac).
Road.
7b--Karr Canyon Road Private............ 0.73 ha (1.8 ac).
7c--Raven Road...... Private............ 1.05 ha (2.6 ac).
8--Blue Springs.................. .................... Private............ 14.04 ha (34.7 ac).
----------------------------------------------------------------------------------------------------------------
Note: Area estimates reflect all land within critical habitat unit boundaries, and estimates may not sum due to
rounding.
[[Page 61478]]
Table 4--Approximate Percentage and Size of Total Proposed Critical Habitat Designation for Wright's Marsh
Thistle per Ownership Type
----------------------------------------------------------------------------------------------------------------
Percent of
Ownership type total Size of designation
designation
----------------------------------------------------------------------------------------------------------------
Private....................................... 33.5 21.5 ha (53.13 ac).
Federal....................................... 30 19.45 ha (48 ac).
State......................................... 19.7 12.65 ha (31.26 ac).
City.......................................... 15.4 9.88 ha (24.4 ac).
Tribal........................................ 0.004 0.65 ha (1.6 ac).
----------------------------------------------------------------------------------------------------------------
Table 5--Wright's Marsh Thistle Proposed Critical Habitat Units and Co-occurring Listed Species or Existing
Critical Habitat
----------------------------------------------------------------------------------------------------------------
Existing designated
Co-occurring listed critical habitat for
Unit No. and name Subunit No. and name species (ha (ac) of other listed species (ha
overlapping occupied (ac) of overlapping
habitat) critical habitat)
----------------------------------------------------------------------------------------------------------------
1--Santa Rosa................... 1a--Blue Hole Hatchery Pecos sunflower (0.42 ha Pecos sunflower (0.93 ha
(1.0 ac)). (2.3 ac)).
1b--Blue Hole Road n/a....................... Pecos sunflower (0.45 ha
South. (1.0 ac)).
1c--State Highway 91 Pecos sunflower (0.15 ha Pecos sunflower (12.2 ha
North. (0.4 ac)). (30.0 ac)).
1d--Santa Rosa n/a....................... n/a.
Ballpark South.
1e--State Highway 91 Pecos sunflower (0.15 ha n/a.
South. (.04 ac)).
1f--Perch Lake........ Pecos sunflower (0.03 ha n/a.
(.07 ac)).
1g--Sheehan Trust..... n/a....................... n/a.
1h--Freeman Property.. n/a....................... n/a.
2--Alamosa Springs.............. ...................... Alamosa springsnail (1.58 n/a.
ha (3.9 ac)); Chiricahua
leopard frog (1.58 ha
(3.9 ac)).
3--Bitter Lake.................. 3a--NWR Unit 5........ Least tern (0.98 ha (2.4 Pecos sunflower (3.16 ha
ac)); (Koster's (7.8 ac)).
springsnail,* Noel's
amphipod,* Pecos
gambusia,* Pecos
pupfish,* Roswell
springsnail *).
3b--NWR Unit 6........ Koster's springsnail (2.4 Koster's springsnail (2.4
ha (5.9 ac)); Least tern ha (5.9 ac)); Pecos
(2.8 ha (6.9 ac)); sunflower (15.9 ha (39.3
Roswell springsnail (2.4 ac)); Roswell springsnail
ha 5.9 ac)); Noel's (2.4 ha (5.9 ac)); Noel's
amphipod (2.4 ha (5.9 amphipod (2.4 ha (5.9
ac)); (Pecos gambusia,* ac)).
Pecos pupfish *).
4--Tularosa Creek............... ...................... n/a....................... na.
5--La Luz Canyon................ ...................... (Sacramento prickly poppy n/a.
*).
6--Silver Springs............... ...................... New Mexico meadow jumping New Mexico meadow jumping
mouse (0.38 ha (0.9 ac)); mouse (0.38 ha (0.9 ac)).
(Sacramento Mountains
thistle *).
7--Karr/Haynes Canyon........... 7a--Haynes Canyon Road n/a....................... n/a.
7b--Karr Canyon Road.. n/a....................... n/a.
7c--Raven Road........ n/a....................... n/a.
8--Blue Springs................. ...................... Pecos gambusia (11.7 ha n/a.
(28.9 ac)).
----------------------------------------------------------------------------------------------------------------
* Species and/or critical habitat found in close proximity (<1,609 m (1 mi)) critical habitat unit, but not
overlapping exactly.
We present brief descriptions of all units below and reasons why
they meet the definition of critical habitat for Wright's marsh
thistle, below.
Unit 1: Santa Rosa
Unit 1 consists of eight subunits comprising 26.6 ha (65.7 ac) in
Guadalupe County, New Mexico. This unit consists of land owned by the
City of Santa Rosa, the State of New Mexico, and private landowners.
This unit partially overlaps with occupied habitat and designated
critical habitat for the federally threatened Pecos sunflower.
Subunit 1a: Blue Hole Hatchery
Subunit 1a consists of 11 small land parcels comprising 0.93 ha
(2.3 ac) in Guadalupe County, New Mexico. This subunit lies north of
Blue Hole Road on City of Santa Rosa property at the abandoned Blue
Hole Hatchery. Special management considerations or protection may be
required in Subunit 1a to address ground and surface water depletion,
as well as native and nonnative plant invasion. Such special management
or protection may include conservation efforts to ensure water
availability, along with decreasing competition with native and
nonnative plants via prescribed burning and mechanical treatments, if
necessary. Special management or protection may also include watershed/
wetland restoration efforts.
Subunit 1b: Blue Hole Road South
Subunit 1b consists of a small, 0.45-ha (1.1-ac) land parcel in
Guadalupe County, New Mexico. This subunit lies south of Blue Hole Road
and east of El Rito Creek on State of New Mexico land, which is an
undeveloped portion of a wetland preserve. Special management
considerations or protection may be required in Subunit 1b to address
ground and surface water depletion, as well as native and nonnative
invasion. Such special management or protection may include
conservation efforts to ensure water availability, along with
decreasing competition with native and nonnative plants via prescribed
burning and mechanical treatments, if necessary. Special management or
protection may also include watershed/wetland restoration efforts.
Subunit 1c: State Highway 91 North
Subunit 1c consists of 12.2 ha (30.1 ac) in Guadalupe County, New
Mexico. This subunit lies north of State Highway 91, near Subunit 1b on
State of New Mexico land, which is an undeveloped portion of a wetland
preserve. Special management considerations or protection may be
required in Subunit 1c to address ground and surface water
[[Page 61479]]
depletion, as well as native and nonnative plant invasion. Such special
management or protection may include conservation efforts to ensure
water availability, along with decreasing competition with native and
nonnative plants via prescribed burning and mechanical treatments, if
necessary. Special management or protection may also include watershed/
wetland restoration efforts.
Subunit 1d: Santa Rosa Ballpark South
Subunit 1d consists of two small land parcels comprising 0.97 ha
(2.4 ac) in Guadalupe County, New Mexico. This subunit lies south of
the City of Santa Rosa ballpark, on an undeveloped portion of City of
Santa Rosa land. Special management considerations or protection may be
required in Subunit 1d to address ground and surface water depletion,
as well as native and nonnative invasion. Such special management or
protection may include conservation efforts to ensure water
availability, along with decreasing competition with native and
nonnative plants via prescribed burning and mechanical treatments, if
necessary. Special management or protection may also include watershed/
wetland restoration efforts. Other special management considerations or
protection may be required to address localized stressors from
herbicide use and mowing in recreational areas.
Subunit 1e: State Highway 91 South
Subunit 1e consists of 6.7 ha (16.5 ac) in Guadalupe County, New
Mexico. This subunit lies south of State Highway 91 on City of Santa
Rosa and private lands. Special management considerations or protection
may be required in Subunit 1e to address ground and surface water
depletion, as well as native and nonnative plant invasion. Such special
management or protection may include conservation efforts to ensure
water availability, along with decreasing competition with native and
nonnative plants via prescribed burning and mechanical treatments, if
necessary. Special management or protection may also include watershed/
wetland restoration efforts.
Subunit 1f: Perch Lake
Subunit 1f consists of 1.9 ha (4.6 ac) in Guadalupe County, New
Mexico. This subunit includes most of the shores of Perch Lake on City
of Santa Rosa property, extending south into an undeveloped area.
Special management considerations or protection may be required in
Subunit 1f to address ground and surface water depletion, as well as
native and nonnative plant invasion. Such special management or
protection may include conservation efforts to ensure water
availability, along with decreasing competition with native and
nonnative plants via prescribed burning and mechanical treatments, if
necessary. Special management or protection may also include watershed/
wetland restoration efforts. Other special management considerations or
protection may be required to address localized stressors from
herbicide use and mowing in areas around Perch Lake, which is located
inside the subunit.
Subunit 1g: Sheehan Trust
Subunit 1g consists of 2.4 ha (6.0 ac) in Guadalupe County, New
Mexico. This subunit lies east of River Road and the Pecos River on
privately owned lands, which are currently held in a land trust.
Special management considerations or protection may be required in
Subunit 1g to address ground and surface water depletion, as well as
native and nonnative plant invasion. Such special management or
protection may include conservation efforts to ensure water
availability, along with decreasing competition with native and
nonnative plants via prescribed burning and mechanical treatments, if
necessary. Special management or protection may also include watershed/
wetland restoration efforts. As this property was formerly grazed and
may be grazed again in the future, special management or protection may
be required to address impacts of livestock grazing as appropriate.
Subunit 1h: Freeman Property
Subunit 1h consists of five small parcels of land comprising 1.09
ha (2.68 ac) in Guadalupe County, New Mexico. This subunit lies west of
Subunit 1g on City of Santa Rosa property and privately owned lands.
Special management considerations or protection may be required in
Subunit 1h to address ground and surface water depletion, as well as
native and nonnative plant invasion. Such special management or
protection may include conservation efforts to ensure water
availability, along with decreasing competition with native and
nonnative plants via prescribed burning and mechanical treatments, if
necessary. Special management or protection may also include watershed/
wetland restoration efforts.
Unit 2: Alamosa Springs
Unit 2 consists of 1.58 ha (3.9 ac) in Socorro County, New Mexico.
This unit lies mostly north of Forest Road 140 along Alamosa Creek, on
privately owned land. This unit entirely overlaps with occupied habitat
for the federally endangered Alamosa springsnail and federally
threatened Chiricahua leopard frog. Special management considerations
or protection may be required in this unit to address ground and
surface water depletion, water quality, soil alkalinity, and native and
nonnative plant invasion. Such special management or protection may
include conservation efforts to ensure water availability, to protect
ground water and soil from contaminants during mining activities, and
to decrease competition with native and nonnative plants via prescribed
burning and mechanical treatments, if necessary. Special management or
protection may also include watershed/wetland restoration efforts.
Unit 3: Bitter Lake
Unit 3 consists of two subunits comprising 19.0 ha (47 ac) in
Chaves County, New Mexico, on Bitter Lake National Wildlife Refuge
(NWR). Unit 3 is entirely managed by the U.S. Fish and Wildlife
Service. This unit overlaps with occupied habitat for the federally
endangered Koster's springsnail, Noel's amphipod, Roswell springsnail,
and least tern. The unit also overlaps with designated critical habitat
for the Koster's springsnail, Noel's amphipod, Roswell springsnail, and
Pecos sunflower.
Subunit 3a: NWR Unit 5
Subunit 3a consists of 3.16 ha (7.8 ac) in Chaves County, New
Mexico, within Wetland Management Unit 5 on Bitter Lake NWR. Special
management considerations or protection may be required in Subunit 3a
to address ground and surface water depletion, water quality, soil
alkalinity, and native and nonnative plant invasion. Such special
management or protection may include conservation efforts to ensure
water availability, spill prevention and groundwater protection during
oil and gas development, and decreasing competition with native and
nonnative plants via prescribed burning and mechanical and herbicide
treatments, if necessary. Special management or protection may also
include watershed/wetland restoration efforts.
Subunit 3b: NWR Unit 6
Subunit 3b consists of 15.9 ha (39.2 ac) in Chaves County, New
Mexico, within Wetland Management Unit 6 on Bitter Lake NWR. Special
management considerations or protection may be required in Subunit 3b
to address
[[Page 61480]]
ground and surface water depletion, water quality, soil alkalinity, and
native and nonnative plant invasion. Such special management or
protection may include conservation efforts to ensure water
availability, spill prevention and groundwater protection during oil
and gas development, and decreasing competition with native and
nonnative plants via prescribed burning and mechanical and herbicide
treatments, if necessary. Special management or protection may also
include watershed/wetland restoration efforts.
Unit 4: Tularosa Creek
Unit 4 consists of 0.65 ha (1.6 ac) in Otero County, New Mexico.
This unit lies along Indian Service Route 10, north of Tularosa Creek,
on land owned by the Mescalero Apache Tribe. Special management
considerations or protection may be required in this unit to address
ground and surface water depletion, as well as native and nonnative
plant invasion. Such special management or protection may include
conservation efforts to ensure water availability, along with
decreasing competition with native and nonnative plants via prescribed
burning and mechanical treatments, if necessary. Special management or
protection may also include watershed/wetland restoration efforts.
Unit 5: La Luz Canyon
Unit 5 consists of 0.01 ha (0.03 ac) in Otero County, New Mexico,
on the Lincoln National Forest. This unit lies north of La Luz Canyon
Road, along La Luz Creek, on lands managed by the U.S. Forest Service.
Special management considerations or protection may be required in this
unit to address ground and surface water depletion, as well as native
and nonnative plant invasion. Such special management or protection may
include conservation efforts to ensure water availability, along with
decreasing competition with native and nonnative plants via prescribed
burning and mechanical treatments, if necessary. Special management or
protection may also include watershed/wetland restoration efforts. As
this property has the potential to be grazed, special management or
protection may be required to address impacts of livestock grazing as
appropriate.
Unit 6: Silver Springs
Unit 6 consists of 0.62 ha (1.53 ac) in Otero County, New Mexico.
This unit lies east of State Highway 224, along Silver Springs Creek.
This unit contains land on the Lincoln National Forest, which is
managed by the U.S. Forest Service, and land owned by the Mescalero
Apache Tribe. This unit overlaps with occupied habitat and critical
habitat for the federally endangered New Mexico meadow jumping mouse.
Special management considerations or protection may be required in this
unit to address ground and surface water depletion, as well as native
and nonnative plant invasion. Such special management or protection may
include conservation efforts to ensure water availability, along with
decreasing competition with native and nonnative plants via prescribed
burning and mechanical treatments, if necessary. Special management or
protection may also include watershed/wetland restoration efforts. As
this property has the potential to be grazed, special management or
protection may be required to address impacts of livestock grazing as
appropriate.
Unit 7: Karr/Haynes Canyon
Unit 7 consists of three subunits that comprise 1.79 ha (4.42 ac)
in Otero County, New Mexico. This unit consists of privately owned
lands.
Subunit 7a: Haynes Canyon Road
Subunit 7a consists of 0.008 ha (0.02 ac) in Otero County, New
Mexico. This subunit lies south of Haynes Canyon Road on privately
owned lands. Special management considerations or protection may be
required in Subunit 7a to address ground and surface water depletion,
as well as native and nonnative plant invasion. Such special management
or protection may include conservation efforts to ensure water
availability, along with decreasing competition with native and
nonnative plants via prescribed burning and mechanical treatments, if
necessary. Special management or protection may also include watershed/
wetland restoration efforts. As this property has the potential to be
grazed, special management or protection may be required to address
impacts of livestock grazing as appropriate.
Subunit 7b: Karr Canyon Road
Subunit 7b consists of two small parcels comprising 0.73 ha (1.8
ac) in Otero County, New Mexico. This subunit lies along either side of
Karr Canyon Road on privately owned lands. Special management
considerations or protection may be required in Subunit 7b to address
ground and surface water depletion, as well as native and nonnative
plant invasion. Such special management or protection may include
conservation efforts to ensure water availability, along with
decreasing competition with native and nonnative plants via prescribed
burning and mechanical treatments, if necessary. Special management or
protection may also include watershed/wetland restoration efforts. As
this property has the potential to be grazed, special management or
protection may be required to address impacts of livestock grazing as
appropriate.
Subunit 7c: Raven Road
Subunit 7c consists of two small parcels comprising 1.05 ha (2.6
ac) in Otero County, New Mexico. This subunit lies along either side of
Raven Road on privately owned lands. Special management considerations
or protection may be required in Subunit 7c to address ground and
surface water depletion, as well as native and nonnative plant
invasion. Such special management or protection may include
conservation efforts to ensure water availability, along with
decreasing competition with native and nonnative plants via prescribed
burning and mechanical treatments, if necessary. Special management or
protection may also include watershed/wetland restoration efforts. As
this property has the potential to be grazed, special management or
protection may be required to address impacts of livestock grazing as
appropriate.
Unit 8: Blue Springs
Unit 8 consists of 14.04 ha (34.7 ac) in Eddy County, New Mexico.
This unit lies along a small tributary north of the Black River on
privately owned land. This unit overlaps with occupied habitat for the
federally endangered Pecos gambusia. Special management considerations
or protection may be required in this unit to address ground and
surface water depletion, water quality, soil alkalinity, and native and
nonnative plant invasion. Such special management or protection may
include conservation efforts to ensure water availability, spill
prevention and groundwater protection during oil and gas development,
and decreasing competition with native and nonnative plants via
prescribed burning and mechanical treatments, if necessary. Special
management or protection may also include watershed/wetland restoration
efforts.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened
[[Page 61481]]
species or result in the destruction or adverse modification of
designated critical habitat of such species. In addition, section
7(a)(4) of the Act requires Federal agencies to confer with the Service
on any agency action which is likely to jeopardize the continued
existence of any species proposed to be listed under the Act or result
in the destruction or adverse modification of proposed critical
habitat.
We published a final regulation with a revised definition of
destruction or adverse modification on August 27, 2019 (84 FR 44976).
Destruction or adverse modification means a direct or indirect
alteration that appreciably diminishes the value of critical habitat as
a whole for the conservation of a listed species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat--and actions
on State, tribal, local, or private lands that are not federally
funded, authorized, or carried out by a Federal agency--do not require
section 7 consultation.
Compliance with the requirements of section 7(a)(2) is documented
through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood
of jeopardizing the continued existence of the listed species and/or
avoid the likelihood of destroying or adversely modifying critical
habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
formal consultation on previously reviewed actions. These requirements
apply when the Federal agency has retained discretionary involvement or
control over the action (or the agency's discretionary involvement or
control is authorized by law) and, subsequent to the previous
consultation, we have listed a new species or designated critical
habitat that may be affected by the Federal action, or the action has
been modified in a manner that affects the species or critical habitat
in a way not considered in the previous consultation. In such
situations, Federal agencies sometimes may need to request reinitiation
of consultation with us, but the regulations also specify some
exceptions to the requirement to reinitiate consultation on specific
land management plans after subsequently listing a new species or
designating new critical habitat. See the regulations for a description
of those exceptions.
Application of the ``Adverse Modification'' Standard
The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat as a
whole for the conservation of the listed species. As discussed above,
the role of critical habitat is to support physical or biological
features essential to the conservation of a listed species and provide
for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate 7(a)(2)
of the Act by destroying or adversely modifying such designation.
Activities that the Services may, during a consultation under
section 7(a)(2) of the Act, find are likely to destroy or adversely
modify critical habitat include, but are not limited to:
(1) Actions that would diminish permanent root saturation. Such
activities could include, but are not limited to, water diversions and
water withdrawals for agricultural, mineral mining, or urban purposes.
These activities could reduce Wright's marsh thistle's water
availability, and increase its competition for water resources, thereby
depleting a resource necessary for the plant's normal growth and
survival.
(2) Actions that would alter the alkalinity of the soil. Such
activities could include, but are not limited to, oil and gas
development and mining. These activities could result in significant
ground disturbance that could alter the chemical and physical
properties of the soil.
(3) Actions that would diminish the availability of full sunlight.
Such activities could include, but are not limited to, vegetation
management that encourages growth of competing native and nonnative
species. These activities could lead to habitat encroachment resulting
in a decreased availability of sunlight.
(4) Actions that would decrease the diversity and abundance of
floral resources and pollinators. Such activities could include, but
are not limited to, the use of pesticides and herbicides, livestock
grazing, and oil and gas development and mining. These activities could
lead to direct mortality of pollinators and diminish the floral
resources available to pollinators.
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that: ``The Secretary shall not designate as critical habitat
any lands or other geographical areas owned or controlled by the
Department of Defense (DoD), or designated for its use, that are
subject to an integrated natural resources management plan (INRMP)
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the
Secretary determines in writing that such plan provides a benefit to
the species for which critical habitat is proposed for designation.''
There are no DoD lands with a
[[Page 61482]]
completed INRMP within the proposed critical habitat designation.
Exclusions
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if he determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless he determines, based
on the best scientific data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. In making that determination, the statute on its face, as well
as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor.
The first sentence in section 4(b)(2) of the Act requires that we
take into consideration the economic, national security, or other
relevant impacts of designating any particular area as critical
habitat. We describe below the process that we undertook for taking
into consideration each category of impacts and our analyses of the
relevant impacts.
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate the impacts that a specific critical habitat
designation may have on restricting or modifying specific land uses or
activities for the benefit of the species and its habitat within the
areas proposed. We then identify which conservation efforts may be the
result of the species being listed under the Act versus those
attributed solely to the designation of critical habitat for this
particular species. The probable economic impact of a proposed critical
habitat designation is analyzed by comparing scenarios both ``with
critical habitat'' and ``without critical habitat.''
The ``without critical habitat'' scenario represents the baseline
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource
users potentially affected by the designation of critical habitat
(e.g., under the Federal listing as well as other Federal, State, and
local regulations). The baseline, therefore, represents the costs of
all efforts attributable to the listing of the species under the Act
(i.e., conservation of the species and its habitat incurred regardless
of whether critical habitat is designated). The ``with critical
habitat'' scenario describes the incremental impacts associated
specifically with the designation of critical habitat for the species.
The incremental conservation efforts and associated impacts would not
be expected without the designation of critical habitat for the
species. In other words, the incremental costs are those attributable
solely to the designation of critical habitat, above and beyond the
baseline costs. These are the costs we use when evaluating the benefits
of inclusion and exclusion of particular areas from the final
designation of critical habitat should we choose to conduct a
discretionary 4(b)(2) exclusion analysis.
For this particular designation, we developed an incremental
effects memorandum (IEM) considering the probable incremental economic
impacts that may result from this proposed designation of critical
habitat. The information contained in our IEM, along with the SSA, was
then used to develop a screening analysis of the probable effects of
the designation of critical habitat for Wright's marsh thistle
(Industrial Economics, Inc. 2018). We began by conducting a screening
analysis of the proposed designation of critical habitat in order to
focus our analysis on the key factors that are likely to result in
incremental economic impacts. The purpose of the screening analysis is
to filter out the geographic areas in which the critical habitat
designation is unlikely to result in probable incremental economic
impacts. In particular, the screening analysis considers baseline costs
(i.e., absent critical habitat designation) and includes probable
economic impacts where land and water use may be subject to
conservation plans, land management plans, best management practices,
or regulations that would protect the habitat area as a result of the
Federal listing status of the species. The screening analysis filters
out particular areas of critical habitat that are already subject to
such protections and are, therefore, unlikely to incur incremental
economic impacts. Ultimately, the screening analysis allows us to focus
our analysis on evaluating the specific areas or sectors that may incur
probable incremental economic impacts as a result of the designation.
The screening analysis also assesses whether units are unoccupied by
the species and may require additional management or conservation
efforts as a result of the critical habitat designation for the
species, which may incur incremental economic impacts. This screening
analysis, combined with the information contained in our IEM, is what
we consider our draft economic analysis of the proposed critical
habitat designation for Wright's marsh thistle and is summarized in the
narrative below.
Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to
assess the costs and benefits of available regulatory alternatives in
quantitative (to the extent feasible) and qualitative terms. Consistent
with the E.O. regulatory analysis requirements, our effects analysis
under the Act may take into consideration impacts to both directly and
indirectly affected entities, where practicable and reasonable. If
sufficient data are available, we assess to the extent practicable the
probable impacts to both directly and indirectly affected entities. As
part of our screening analysis, we considered the types of economic
activities that are likely to occur within the areas likely affected by
the critical habitat designation.
In our evaluation of the probable incremental economic impacts that
may result from the proposed designation of critical habitat for
Wright's marsh thistle, first we identified, in the IEM dated March 2,
2018, probable incremental economic impacts associated with the
following categories of activities: (1) Water quantity/supply, (2) oil
and gas development and mining, and (3) livestock grazing. We
considered each industry or category individually. Additionally, we
considered whether their activities have any Federal involvement.
Critical habitat designation generally will not affect activities that
do not have any Federal involvement; under the Act, designation of
critical habitat only affects activities conducted, funded, permitted,
or authorized by Federal agencies. If we finalize the listing of
Wright's marsh thistle, in areas where the species is present, Federal
agencies would already be required to consult with the Service under
section 7 of the Act on activities they fund, permit, or implement that
may affect the thistle. If we finalize this proposed critical habitat
designation, consultations to avoid the destruction or adverse
modification of critical habitat would be incorporated into the
existing consultation process.
[[Page 61483]]
In our IEM, we attempted to clarify the distinction between the
effects that will result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for Wright's
marsh thistle's critical habitat. Because the designation of critical
habitat for Wright's marsh thistle is being proposed concurrently with
the listing, it has been our experience that it is more difficult to
discern which conservation efforts are attributable to the species
being listed and those which will result solely from the designation of
critical habitat. However, the following specific circumstances in this
case help to inform our evaluation: (1) The essential physical or
biological features identified for critical habitat are the same
features essential for the life requisites of the species and (2) any
actions that would result in sufficient harm or harassment to
constitute jeopardy to Wright's marsh thistle would also likely
adversely affect the essential physical or biological features of
critical habitat. The IEM outlines our rationale concerning this
limited distinction between baseline conservation efforts and
incremental impacts of the designation of critical habitat for this
species. This evaluation of the incremental effects has been used as
the basis to evaluate the probable incremental economic impacts of this
proposed designation of critical habitat.
The Service is proposing to designate 64.3 ha (159 ac) across five
New Mexico counties as critical habitat for Wright's marsh thistle. The
Service has divided the proposed critical habitat into eight units,
with some further divided into subunits. All eight units are considered
occupied because they contain reproducing populations of the thistle.
We are not proposing to designate any units of unoccupied habitat.
Approximately 29 percent of the proposed designation is located on
Federal lands, 20 percent is on State-owned lands, and 1 percent on
land owned by the Mescalero Tribe. Fifteen percent of proposed lands
are owned by the City of Santa Rosa, and 35 percent are privately
owned. In these areas, any actions that may affect the species or its
habitat would also affect designated critical habitat, and it is
unlikely that any additional conservation efforts would be recommended
to address the adverse modification standard over and above those
recommended as necessary to avoid jeopardizing the continued existence
of Wright's marsh thistle. Therefore, the potential incremental
economic effects of the critical habitat designation are expected to be
limited to administrative costs.
The entities most likely to incur incremental costs are parties to
section 7 consultations, including Federal action agencies and, in some
cases, third parties, most frequently State agencies or municipalities.
Our analysis of economic impacts makes the following assumptions about
consultation activity over the next 10 years, most of which are more
likely to overstate than understate potential impacts due to the
history of biological assessments and implementation of project
conservation measures by the action agencies. The analysis assumes that
approximately five section 7 consultations will occur annually in the
designated critical habitat, across all eight units, based on the
previous consultation history in the area. Most of these are
anticipated to occur in areas with Federal lands, including units 3, 5,
and 6, as well as the large unit 1.
This may overstate the number of consultations that will occur
given available information on forecast activity. As stated above, we
anticipate that conservation efforts needed to avoid adverse
modification are likely to be the same as those needed to avoid impacts
to the species itself. As such, costs of critical habitat designation
for Wright's marsh thistle are anticipated to be limited to
administrative costs. We anticipate that the incremental administrative
costs of addressing adverse modification of critical habitat for the
species in a section 7 consultation will be minor.
The incremental administrative burden resulting from the
designation of critical habitat for Wright's marsh thistle, based on
the anticipated annual number of consultations and associated
consultation costs, is not expected to exceed $25,000 in most years.
The designation is unlikely to trigger additional requirements under
State or local regulations. Furthermore, the designation is quite
small, limited to 64.3 ha (159 ac) in total, with the local government,
municipal, and private lands limited to 31.33 ha (77.4 ac); therefore,
the designation is not expected to have significant perceptional
effects. Because the designation is not expected to result in
incremental conservation efforts for the species, the designation is
also unlikely to measurably increase the probability that the species
will be conserved, and benefits are also unlikely to exceed $25,000 in
a given year. In our DEA, we did not identify any ongoing or future
actions that would warrant additional recommendations or project
modifications to avoid adversely modifying critical habitat above those
we would recommend for avoiding jeopardy to the species, and we
anticipate minimal change in management at Bitter Lake NWR and Lincoln
National Forest due to the designation of critical habitat for Wright's
marsh thistle.
We are soliciting data and comments from the public on the DEA, as
well as all aspects of the proposed rule and our required
determinations. During the development of a final designation, we will
consider any additional economic impact information we receive during
the public comment period to determine whether any specific areas
should be excluded from the final critical habitat designation under
authority of section 4(b)(2) and our implementing regulations at 50 CFR
424.19. In particular, we may exclude an area from critical habitat if
we determine that the benefits of excluding the area outweigh the
benefits of including the area, provided the exclusion will not result
in the extinction of this species.
Consideration of National Security Impacts
In preparing this proposal, we have determined that the lands
within the proposed designation of critical habitat for Wright's marsh
thistle are not owned, managed, or used by the DoD or Department of
Homeland Security, and, therefore, we anticipate no impact on national
security or homeland security. However, during the development of a
final designation we will consider any additional information received
through the public comment period on the impacts of the proposed
designation on national security or homeland security to determine
whether any specific areas should be excluded from the final critical
habitat designation under authority of section 4(b)(2) and our
implementing regulations at 50 CFR 424.19.
Consideration of Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors including whether there are
permitted conservation plans covering the species in the area such as
Habitat Conservation Plans, safe harbor agreements, or candidate
conservation agreements with assurances, or whether there are non-
permitted conservation agreements and partnerships that would be
encouraged by designation of, or exclusion from, critical habitat. In
addition, we look at the existence of tribal conservation
[[Page 61484]]
plans and partnerships and consider the government-to-government
relationship of the United States with tribal entities. We also
consider any social impacts that might occur because of the
designation.
In preparing this proposal, we have determined that there are
currently no permitted conservation plans or other management plans for
Wright's marsh thistle. Only 0.88 ha (2.18 ac) of proposed critical
habitat lands for Wright's marsh thistle belong to the Mescalero Apache
Tribe; we have initiated coordination with the Tribe regarding the
proposed critical habitat designation and will continue to offer
government-to-government consultation with them throughout development
of the final rulemaking. We anticipate no impact on tribal lands,
partnerships, or permitted management plans from this proposed critical
habitat designation. There are no adequate partnerships, Tribal
partnerships, management, or protection afforded by cooperative
management efforts sufficient to provide for the conservation of the
species. There are no areas whose exclusion would result in
conservation, or in the continuation, strengthening, or encouragement
of partnerships.
Summary of Exclusions
After analyzing these potential impacts, we are not considering any
exclusions at this time from the proposed designation under section
4(b)(2) of the Act based on economic impacts, national security
impacts, or other relevant impacts such as partnerships, management, or
protection afforded by cooperative management efforts. All areas
proposed for critical habitat will benefit from additional regulation
for the protection from destruction or adverse modification as a result
of actions with a Federal nexus. All areas would see educational
benefits of mapping essential habitat for recovery of the listed
species. During the development of a final designation, we will
consider any additional information received through the public comment
period regarding other relevant impacts to determine whether any
specific areas should be excluded from the final critical habitat
designation under authority of section 4(b)(2) and our implementing
regulations at 50 CFR 424.19.
Required Determinations
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
Regulatory Planning and Review--Executive Orders 12866 and 13563
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has waived their review regarding
their significance determination of this proposed rule.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act--5 U.S.C. 601 et seq.
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service-sector businesses with less than $5 million in
annual sales, general and heavy construction businesses with less than
$27.5 million in annual business, special trade contractors doing less
than $11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
The Service's current understanding of the requirements under the
RFA, as amended, and following recent court decisions, is that Federal
agencies are only required to evaluate the potential incremental
impacts of rulemaking on those entities directly regulated by the
rulemaking itself and are, therefore, not required to evaluate the
potential impacts to indirectly regulated entities. The regulatory
mechanism through which critical habitat protections are realized is
section 7 of the Act, which requires Federal agencies, in consultation
with the Service, to ensure that any action authorized, funded, or
carried out by the agency is not likely to destroy or adversely modify
critical habitat. Therefore, under section 7, only Federal action
agencies are directly subject to the specific regulatory requirement
(avoiding destruction and adverse modification) imposed by critical
habitat designation. Consequently, it is our position that only Federal
action agencies will be
[[Page 61485]]
directly regulated by this designation. There is no requirement under
RFA to evaluate the potential impacts to entities not directly
regulated. Moreover, Federal agencies are not small entities.
Therefore, because no small entities are directly regulated by this
rulemaking, the Service certifies that, if made final, the proposed
critical habitat designation will not have a significant economic
impact on a substantial number of small entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if made final, the proposed
critical habitat designation would not have a significant economic
impact on a substantial number of small business entities. Therefore,
an initial regulatory flexibility analysis is not required.
Reducing Regulation and Controlling Regulatory Costs--Executive Order
13771
We do not believe this proposed rule is an E.O. 13771 (``Reducing
Regulation and Controlling Regulatory Costs'') (82 FR 9339, February 3,
2017) regulatory action because we believe this rule is not significant
under E.O. 12866; however, the Office of Information and Regulatory
Affairs has waived their review regarding their E.O. 12866 significance
determination of this proposed rule.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. A significant energy action is one that promulgates,
or is expected to lead to the promulgation of, a final rule that is
both (1) a significant regulatory action under E.O. 12866, and (2)
likely to have a significant adverse effect on the supply,
distribution, or use of energy, or a final rule that is designated by
the Administrator of OIRA as a significant energy action. OIRA has
determined that this rule is not significant. Further, in our economic
analysis, we did not find that the designation of this proposed
critical habitat will have an annual effect on the economy of $100
million or more or significantly affect energy supplies, distribution,
or use due to the lack of any energy supply or distribution lines
within the proposed critical habitat designation. Therefore, this
action is not a significant energy action, and no Statement of Energy
Effects is required.
Unfunded Mandates Reform Act--2 U.S.C. 1501 et seq.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule would not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) This rule may have a small perceptional effect on the City of
Santa Rosa, New Mexico, due to the designation of critical habitat. In
practice, small governments like Santa Rosa are affected by critical
habitat only to the extent that any programs having Federal funds,
permits, or other authorized activities must ensure that their actions
will not adversely affect the critical habitat. Therefore, a Small
Government Agency Plan is not required. However, we did notify the City
of Santa Rosa of the proposed critical habitat with the publication of
this proposed rule, and we invite their comments on the proposal with
regard to any potential effects.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for Wright's marsh thistle in a takings implications
assessment. The Act does not authorize the Service to regulate private
actions on private lands or confiscate private property as a result of
critical habitat designation. Designation of critical habitat does not
affect land ownership, or establish any closures, or restrictions on
use of or access to the designated areas. Furthermore, the designation
of critical habitat does not affect landowner actions that do not
require Federal funding or permits, nor does it preclude development of
habitat conservation programs or issuance of incidental take permits to
permit actions that do require Federal funding or permits to go
forward. However, Federal agencies are prohibited from carrying out,
funding, or authorizing actions that would destroy or adversely modify
critical habitat. A takings implications assessment has been completed
and concludes that, if adopted, this designation of critical habitat
for Wright's marsh thistle would not pose significant takings
implications for lands within or affected by the designation.
[[Page 61486]]
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this proposed rule does
not have significant Federalism effects. A federalism summary impact
statement is not required. In keeping with Department of the Interior
and Department of Commerce policy, we requested information from, and
coordinated development of this proposed critical habitat designation
with, appropriate State resource agencies in New Mexico. From a
federalism perspective, the designation of critical habitat directly
affects only the responsibilities of Federal agencies. The Act imposes
no other duties with respect to critical habitat, either for States and
local governments, or for anyone else. As a result, the rule would not
have substantial direct effects either on the States, or on the
relationship between the national government and the States, or on the
distribution of powers and responsibilities among the various levels of
government. The designation may have some benefit to these governments
because the areas that contain the features essential to the
conservation of the species are more clearly defined, and the physical
or biological features of the habitat necessary to the conservation of
the species are specifically identified. This information does not
alter where and what federally sponsored activities may occur.
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We have proposed designating
critical habitat in accordance with the provisions of the Act. To
assist the public in understanding the habitat needs of the species,
the rule identifies the elements of physical or biological features
essential to the conservation of the species. The designated areas of
critical habitat are presented on maps, and the rule provides several
options for the interested public to obtain more detailed location
information, if desired.
Paperwork Reduction Act of 1995--44 U.S.C. 3501 et seq.
This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not
required. We may not conduct or sponsor and you are not required to
respond to a collection of information unless it displays a currently
valid OMB control number.
National Environmental Policy Act--42 U.S.C. 4321 et seq.
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating
critical habitat under the Act. We published a notice outlining our
reasons for this determination in the Federal Register on October 25,
1983 (48 FR 49244). This position was upheld by the U.S. Court of
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). However, when the
range of the species includes States within the Tenth Circuit, such as
that of the Wright's marsh thistle, under the Tenth Circuit ruling in
Catron County Board of Commissioners v. U.S. Fish and Wildlife Service,
75 F.3d 1429 (10th Cir. 1996), we undertake a NEPA analysis for
critical habitat designation. We invite the public to comment on the
extent to which this proposed regulation may have a significant impact
on the human environment, or fall within one of the categorical
exclusions for actions that have no individual or cumulative effect on
the quality of the human environment. We will complete our analysis, in
compliance with NEPA, before finalizing this proposed rule.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes.
There are tribal lands included in the proposed designation of
critical habitat for Wright's marsh thistle. Using the criteria
described above under Criteria Used To Identify Critical Habitat, we
have determined that some tribal lands that are occupied by the species
contain the features essential for the conservation the species. Only
0.88 ha (2.18 ac) of proposed critical habitat lands belong to the
Mescalero Apache Tribe. We have begun government-to-government
consultation with the Tribe, and we will continue to consult with the
Tribe throughout the public comment period on this proposed rule and
during development of the final designation of critical habitat for the
species. We will consider Tribal lands for exclusion from the final
critical habitat designation to the extent consistent with the
requirements of 4(b)(2) of the Act. The Mescalero Apache Tribe is the
main tribe whose lands and trust resources may be affected by this
proposed rule. There may be some other tribes with trust resources in
the area but we have no specific documentation of this. We sent a
notification letter to the Mescalero Apache Tribe on April 6, 2014,
describing the exclusion process under section 4(b)(2) of the Act, and
we have engaged in conversations with the Tribe about the proposal to
the extent possible without disclosing predecisional information via
requests for additional information in September 2016 and January 2018.
We will attempt to schedule a meeting with the Tribe, as well as other
interested parties, shortly after publication of this proposed rule so
that we can give them as much time as possible to comment.
References Cited
A complete list of references cited in this proposed rule is
available on the internet at https://www.regulations.gov and upon
request from the New Mexico Ecological Services Field Office (see For
Further Information Contact).
[[Page 61487]]
Authors
The primary authors of this proposed rule are the staff members of
the New Mexico Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
unless otherwise noted.
0
2. Amend Sec. 17.12(h) by adding an entry for ``Cirsium wrightii'' to
the List of Endangered and Threatened Plants in alphabetical order
under FLOWERING PLANTS to read as set forth below:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Scientific name Common name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
Flowering Plants
* * * * * * *
Cirsium wrightii................ Wright's marsh Wherever found.... T [Federal Register
thistle. citation when
published as a final
rule]; 50 CFR
17.73(a);\4d\ 50 CFR
17.96(a).\CH\
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Add Sec. 17.73 to read as follows:
Sec. 17.73 Special rules--flowering plants.
(a) Cirsium wrightii (Wright's marsh thistle).
(1) Prohibitions. The following prohibitions apply to the Wright's
marsh thistle except as provided under paragraph (a)(2) of this
section:
(i) Remove and reduce to possession from areas under Federal
jurisdiction, as set forth at Sec. 17.61(c)(1) for endangered plants.
(ii) Maliciously damage or destroy the species on any areas under
Federal jurisdiction, or remove, cut, dig up, or damage or destroy the
species on any other area in knowing violation of any State law or
regulation or in the course of any violation of a State criminal
trespass law, as set forth at section 9(a)(2)(B) of the Act.
(2) Exceptions from prohibitions. The following exceptions from
prohibitions apply to the Wright's marsh thistle:
(i) The prohibitions described in paragraph (a)(1) of this section
do not apply to activities conducted as authorized by a permit issued
in accordance with the provisions set forth at Sec. 17.72.
(ii) Any employee or agent of the Service or of a State
conservation agency that is operating a conservation program pursuant
to the terms of a cooperative agreement with the Service in accordance
with section 6(c) of the Act, who is designated by that agency for such
purposes, may, when acting in the course of official duties, remove and
reduce to possession from areas under Federal jurisdiction members of
the Wright's marsh thistle that are covered by an approved cooperative
agreement to carry out conservation programs.
(b) [Reserved]
0
4. In Sec. 17.96, amend paragraph (a) by adding an entry for ``Cirsium
wrightii (Wright's marsh thistle)'' in alphabetical order under Family
Asteraceae to read as follows:
Sec. 17.96 Critical habitat--plants.
(a) Flowering plants.
* * * * *
Family Asteraceae: Cirsium wrightii (Wright's marsh thistle)
(1) Critical habitat units are depicted for Chavez, Eddy,
Guadalupe, Otero, and Socorro Counties, New Mexico, on the maps in this
entry.
(2) Within these areas, the physical or biological features
essential to the conservation of Wright's marsh thistle consist of the
following components:
(i) Water-saturated soils with surface or subsurface water flow
that allows permanent root saturation and seed germination;
(ii) Alkaline soils;
(iii) Full sunlight; and
(iv) Diverse floral communities to attract pollinators.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
the effective date of this rule.
(4) Critical habitat map units. Data layers defining map units were
created using the latest imagery available through Esri (https://www.esri.com/en-us/home). The actual source is DigitalGlobe and the
year of the imagery was 2016. Critical habitat units were then mapped
using ArcGIS ArcMap 10.4. All data are in North America Albers Equal
Area Conic projection, Datum North American 1983. The maps in this
entry, as modified by any accompanying regulatory text, establish the
boundaries of the critical habitat designation. The coordinates or plot
points or both on which each map is based are available to the public
at the Service's internet site at https://www.fws.gov/southwest/es/NewMexico/index.cfm, at https://www.regulations.gov under Docket No.
FWS-R2-ES-2018-0071, and at the field office responsible for this
designation. You may obtain field office location information by
contacting one of the Service regional offices, the addresses of which
are listed at 50 CFR 2.2.
(5) Note: Index map follows:
BILLING CODE 4333-15-P
[[Page 61488]]
[GRAPHIC] [TIFF OMITTED] TP29SE20.063
(6) Unit 1: Santa Rosa, Guadalupe County, New Mexico.
(i) General description: Unit 1 consists of 26.6 hectares (ha)
(65.7 acres (ac)) in Guadalupe County, New Mexico, and is composed of
lands in State (12.65 ha (31.2 ac)), City of Santa Rosa (9.88 ha (24.4
ac)), and private (4.09 ha (10.16 ac)) ownership.
(ii) Maps of Unit 1 follow:
[[Page 61489]]
[GRAPHIC] [TIFF OMITTED] TP29SE20.064
[[Page 61490]]
[GRAPHIC] [TIFF OMITTED] TP29SE20.065
[[Page 61491]]
[GRAPHIC] [TIFF OMITTED] TP29SE20.066
(7) Unit 2: Alamosa Springs, Socorro County, New Mexico.
(i) General description: Unit 2 consists of 1.58 ha (3.9 ac) in
Socorro County, New Mexico, and is composed of lands in private
ownership.
(ii) Map of Unit 2 follows:
[[Page 61492]]
[GRAPHIC] [TIFF OMITTED] TP29SE20.067
(8) Unit 3: Bitter Lake, Chaves County, New Mexico.
(i) General description: Unit 3 consists of 19.0 ha (47.0 ac) in
Chaves County, New Mexico, and is composed of lands under Federal
management, specifically the U.S. Fish and Wildlife Service's Bitter
Lake National Wildlife Refuge.
(ii) Map of Unit 3 follows:
[[Page 61493]]
[GRAPHIC] [TIFF OMITTED] TP29SE20.068
(9) Unit 4: Tularosa Creek, Otero County, New Mexico.
(i) General description: Unit 4 consists of 0.65 ha (1.6 ac) in
Otero County, New Mexico, and is composed of lands in tribal ownership.
(ii) Map of Unit 4 follows:
[[Page 61494]]
[GRAPHIC] [TIFF OMITTED] TP29SE20.069
(10) Unit 5: La Luz Canyon, Otero County, New Mexico.
(i) General description: Unit 5 consists of 0.01 ha (0.03 ac) in
Otero County, New Mexico, and is composed of lands under Federal
management, specifically the U.S. Forest Service's Lincoln National
Forest.
(ii) Map of Unit 5 follows:
[[Page 61495]]
[GRAPHIC] [TIFF OMITTED] TP29SE20.070
(11) Unit 6: Silver Springs, Otero County, New Mexico.
(i) General description: Unit 6 consists of 0.62 ha (1.53 ac) in
Otero County, New Mexico, and is composed of lands under Federal
management (0.38 ha (0.95 ac)), specifically the U.S. Forest Service's
Lincoln National Forest, and tribal ownership (0.23 ha (0.58 ac)).
(ii) Map of Unit 6 follows:
[[Page 61496]]
[GRAPHIC] [TIFF OMITTED] TP29SE20.071
(12) Unit 7: Karr/Haynes Canyon, Otero County, New Mexico.
(i) General description: Unit 7 consists of 1.79 ha (4.42 ac) in
Otero County, New Mexico, and is composed of lands in private
ownership.
(ii) Map of Unit 7 follows:
[[Page 61497]]
[GRAPHIC] [TIFF OMITTED] TP29SE20.072
(13) Unit 8: Blue Springs, Eddy County, New Mexico.
(i) General description: Unit 8 consists of 14.04 ha (34.7 ac) in
Eddy County, New Mexico, and is composed of lands in private ownership.
(ii) Map of Unit 8 follows:
[[Page 61498]]
[GRAPHIC] [TIFF OMITTED] TP29SE20.073
* * * * *
Aurelia Skipwith,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2020-19337 Filed 9-28-20; 8:45 am]
BILLING CODE 4333-15-C
