Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for Wright's Marsh Thistle With a Section 4(d) Rule and Designation of Critical Habitat, 25208-25249 [2023-08565]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 88, Number 79 (Tuesday, April 25, 2023)]
[Rules and Regulations]
[Pages 25208-25249]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-08565]



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Vol. 88

Tuesday,

No. 79

April 25, 2023

Part III





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; Determination of 
Threatened Status for Wright's Marsh Thistle With a Section 4(d) Rule 
and Designation of Critical Habitat; Final Rule

Federal Register / Vol. 88, No. 79 / Tuesday, April 25, 2023 / Rules 
and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2018-0071; FF09E21000 FXES1111090FEDR234]
RIN 1018-BC34


Endangered and Threatened Wildlife and Plants; Determination of 
Threatened Status for Wright's Marsh Thistle With a Section 4(d) Rule 
and Designation of Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
threatened species status under the Endangered Species Act of 1973 
(Act), as amended, for the Wright's marsh thistle (Cirsium wrightii), a 
thistle species from New Mexico. We also designate critical habitat. In 
total, approximately 156.8 acres (63.4 hectares) in Chaves, Eddy, 
Guadalupe, Otero, and Socorro Counties, New Mexico, fall within the 
boundaries of the critical habitat designation. This rule adds the 
species to the List of Endangered and Threatened Wildlife. We also 
finalize a rule under the authority of section 4(d) of the Act that 
provides measures that are necessary and advisable to provide for the 
conservation of this species.

DATES: This rule is effective May 25, 2023.

ADDRESSES: This final rule is available on the internet at https://www.regulations.gov in Docket No. FWS-R2-ES-2018-0071 and at the New 
Mexico Ecological Services website at https://www.fws.gov/office/new-mexico-ecological-services. Comments and materials we received, as well 
as supporting documentation we used in preparing this rule, are 
available for public inspection in the docket on https://www.regulations.gov. For best results, do not copy and paste either 
number; instead, type the docket number or RIN into the Search box 
using hyphens. Then, click on the Search button.
    For the critical habitat designation, the coordinates or plot 
points or both from which the maps are generated are included in the 
decision file and are available at https://www.regulations.gov at Docket 
No. FWS-R2-ES-2018-0071.

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. 
Individuals in the United States who are deaf, deafblind, hard of 
hearing, or have a speech disability may dial 711 (TTY, TDD, or 
TeleBraille) to access telecommunications relay services. Individuals 
outside the United States should use the relay services offered within 
their country to make international calls to the point-of-contact in 
the United States.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Why we need to publish a rule. Under the Act, if we determine that 
a species is 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. To the maximum extent prudent and determinable, 
we must designate critical habitat for any species that we determine to 
be an endangered or threatened species under the Act. Listing a species 
as an endangered or threatened species and designation of critical 
habitat can only be completed by issuing a rule.
    What this document does. This rule lists the Wright's marsh thistle 
(Cirsium wrightii) as a threatened species with a 4(d) rule and 
designates critical habitat for the species under the Endangered 
Species Act. We are designating critical habitat for the species in 7 
units totaling 63.4 hectares (ha) (156.8 acres (ac)) in Chaves, Eddy, 
Guadalupe, Otero, and Socorro Counties in New Mexico.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species because of any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. We have determined that Wright's marsh thistle 
meets the definition of a threatened species primarily because of the 
present or threatened destruction, modification, or curtailment of its 
habitat or range (Factor A), and other natural and manmade factors 
affecting its continued existence such as changes in water 
availability, ungulate grazing, and oil and gas development, (Factor 
E). The existing regulatory mechanisms are inadequate to address the 
identified threats (Factor D). When listing a species as a threatened 
species, section 4(d) of the Act allows us to issue regulations that 
are necessary and advisable for the conservation of the species.
    Furthermore, section 4(a)(3) of the Act requires the Secretary of 
the Interior (Secretary) to designate critical habitat concurrently 
with listing to the maximum extent prudent and determinable. Section 
3(5)(A) of the Act defines critical habitat as (i) the specific areas 
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. 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.

Previous Federal Actions

    On September 29, 2020, we proposed to list the Wright's marsh 
thistle as a threatened species under the Act, with a proposed 4(d) 
rule and proposed designation of critical habitat (85 FR 61460). Please 
refer to that proposed rule for a detailed description of previous 
Federal actions concerning this species.

Summary of Changes From the Proposed Rule

    Based on information provided during the comment period by the 
public, Tribes, States, and peer reviewers, we made the following minor 
changes to this final rule:
     We updated species occurrence information and incorporated 
new information related to three previously unknown population 
locations;
     We excluded approximately 0.88 ha (2.18 ac) of Mescalero 
Apache land from critical habitat as identified in Table 5, Areas 
excluded from Critical Habitat Designation by Critical Habitat Unit for 
Wright's Marsh Thistle; and
     We made several small, non-substantive revisions and 
corrections throughout the document in response to comments, and per 
editorial review.
    Beyond those changes, this final listing rule, 4(d) rule, and 
critical habitat designation are unchanged from

[[Page 25209]]

what we proposed on September 29, 2020 (85 FR 61460).

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.
    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 peer review of the SSA report. 
The Service sent the SSA report to four independent peer reviewers with 
expertise in Wright's marsh thistle biology, life history, habitat, and 
range, and in the physical or biological features of its habitat. We 
received responses from one peer reviewer who provided comments on the 
SSA report that we integrated into the report, strengthening our 
analysis. The purpose of peer review is to ensure that our listing 
determinations, critical habitat designations, and 4(d) rules are based 
on scientifically sound data, assumptions, and analyses. We also sent 
the SSA report for review to 2 partners who have knowledge of the 
species biology and threats.. The SSA report and other materials 
relating to this rule can be found at https://www.regulations.gov under 
Docket No. FWS-R2-ES-2018-0071.

I. Final Listing Determination

Background

    We completed a comprehensive assessment of the biological status of 
the Wright's marsh thistle and prepared a report of the assessment (SSA 
report (USFWS 2017, entire)), which provides a thorough account of the 
species' overall viability and risks to that viability. Please refer to 
the SSA report as well as the September 29, 2020, proposed rule (85 FR 
61460) for a full summary of species information. Both are available at 
https://www.regulations.gov under Docket No. FWS-R2-ES-2018-0071. Below, 
we summarize the key results and conclusions of the SSA report.
    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 vivid pink flowers and dark green 
foliage with taller 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.
    Wright's marsh thistle was historically known to occur in Arizona, 
New Mexico, and Texas in the United States, and Chihuahua and Sonora in 
Mexico (Sivinski 2012, p. 2). Wright's marsh thistle has been 
extirpated from all previously known locations in Arizona, two 
historical locations in New Mexico, and was thought to be extirpated 
from all known locations in Texas and Mexico. However, in 2018, a 
reexamination of Texas herbarium specimens determined that two 
specimens were collections of Wright's marsh thistle (Nesom 2018, 
entire), with the most recent collection being from Presidio County, 
Texas in 2003, and in 2019, a team rediscovered a population of 
Wright's marsh thistle located on a private property in Chihuahua, 
Mexico (Sanchez Escalante et. al. 2019, p. 9-10). In New Mexico, eight 
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).

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

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after conducting this cumulative analysis and describing the expected 
effect on the species now and in the foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
``foreseeable future'' extends only so far into the future as the 
Service can reasonably determine that both the future threats and the 
species' responses to those threats are likely. In other words, the 
foreseeable future is the period of time in which we can make reliable 
predictions. ``Reliable'' does not mean ``certain''; it means 
sufficient to provide a reasonable degree of confidence in the 
prediction. Thus, a prediction is reliable if it is reasonable to 
depend on it when making decisions.
    It is not always possible or necessary to define foreseeable future 
as a particular number of years. Analysis of the foreseeable future 
uses the best scientific and commercial data available and should 
consider the timeframes applicable to the relevant threats and to the 
species' likely responses to those threats in view of its life-history 
characteristics. Data that are typically relevant to assessing the 
species' biological response include species-specific factors such as 
lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.

Analytical Framework

    The SSA report documents the results of our comprehensive 
biological review of the best scientific and commercial data regarding 
the status of the species, including an assessment of the potential 
threats to the species. The SSA report does not represent a decision by 
the Service on whether the species should be listed as an endangered or 
threatened species under the Act. It does, however, provide the 
scientific basis that informs our regulatory decisions, which involve 
the further application of standards within the Act and its 
implementing regulations and policies. The following is a summary of 
the key results and conclusions from the SSA report; the full SSA 
report can be found at FWS-R2-ES-2018-0071 on https://www.regulations.gov.
    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. Throughout all of these 
stages, we used the best available information to characterize 
viability as the ability of a species to sustain populations in the 
wild over time. We use this information to inform our regulatory 
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 assess Wright's marsh 
thistle viability and the risks to that viability, we reviewed the 
biological condition of the species and its resources, and the threats 
that influence the species' current and future condition. Wright's 
marsh thistle is a rare wetland species that grows in marshy habitats 
with year-round, water-saturated soils, at elevations between 3,450 and 
7,850 feet (ft.) (1,150 and 2,390 meters (m)) in elevation (Sivinski 
1996, p. 1; 2005a, pp. 3-4). It is usually associated with alkaline 
springs and seeps ranging from low desert up to ponderosa pine forest 
(Sivinski 2005a, p. 3). Wright's marsh thistle is an obligate of seeps, 
springs, and wetlands that have saturated soils with surface or 
subsurface water flow (Sivinski 1996a; Service 1998; Worthington 2002a, 
p. 2; NMRPTC 2009). Common associates include bulrush (Scirpus spp.), 
beaked spikerush (Eleocharis rostellata), Pecos sunflower (Helianthus 
paradoxus), rush (Juncus spp.), and cattail (Typha spp.) (Sivinski 
1996a, pp. 2-5; Sivinski and Bleakly 2004, p. 2; Worthington 2002a, pp. 
1-2).
    Most of the areas occupied by Wright's marsh thistle are open 
cien[eacute]ga or boggy margins of open water or along excavated 
drains. A few Wright's marsh thistle occur in cattail stands, and many 
occur in fairly open stands of common reed (Phragmites australis). 
Surprisingly, several hundred Wright's marsh thistle rosettes were 
found well within some very dense, tall stands of common reed in 2012 
(Sivinski 2012, p. 33). Almost all of these were juvenile rosettes, and 
it appears that maturation and flowering is suppressed by the shade in 
dense patches of common reed (Sivinski 2012, p. 33). Therefore, we 
infer that rosettes can survive without as much direct sunlight as 
mature plants.
    Sufficient pollinators are needed to complete cross pollination of 
plants both within patches at each population and between 
subpopulations in the Santa Rosa population. Many generalist 
pollinators may visit Wright's marsh thistle (Sivinski 2017, pers. 
comm.). The most common pollinators of Wright's marsh thistle are bees, 
especially bumble bees (Bombus spp.) (Sivinski 2017, pers. comm.). 
Bumble bees are strong fliers and may travel 1 mi (1.5 km) or more to 
patches of Wright's marsh thistle (Osborne et al. 2008), and thus could 
provide cross pollination and gene flow within the Santa Rosa 
population. Thus, depending on life stage, Wright's marsh thistle needs 
to have permanent root saturation; alkaline soils; full, direct, or 
nearly full sunlight; and abundant pollinators, including bumble bees.
    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, 
pp. 3-13). Factors that influence those resource needs will determine 
whether Wright's marsh

[[Page 25211]]

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 variation in ecological 
adaptability between the eastern and western populations of the 
thistle, and possibly also 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. However, Wright's marsh thistle has likely lost genetic and 
environmental diversity as populations have been reduced or extirpated, 
and therefore 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 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 within each population location. 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).

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 (see Table 1, below). 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, pp. 39-56).
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, pp. 4-5; Sivinski 2005, pp. 3-4; 
Sivinski 2012, pp. 29-33). 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). Drought, along with ground 
and surface water depletion, serves 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 to continue in the future, increasing these 
impacts to Wright's marsh thistle (NOAA 2014, unpaginated). 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 due to past and present land and water management practices 
that deplete ground and surface water. For specific examples for each 
population, please refer to chapter 4, section 1 of the SSA report 
(USFWS 2017, pp. 39-56). All of the extant localities may be affected 
by long-term drought, whereas four of the largest localities at Blue 
Spring, Bitter Lake National Wildlife Refuge (NWR), Santa Rosa, and 
Alamosa Creek have the potential to be further modified by ongoing and 
future water management practices.
    Drought--According to the United States Drought Monitor (U.S. 
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. 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, these wet periods are extremely rare events 
(Newton et al. 2012, p. 66), and drought has notably impacted the 
area's groundwater tables (USFS 2008, p. 22). The seasonal distribution 
of yearly precipitation in this mountain range can result in temporary 
drought conditions and reduced water availability for some of the 
area's Wright's marsh thistle localities.
    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, 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

[[Page 25212]]

drought a less significant stressor to the populations (e.g., see Poff 
et al. 2002, pp. 18-19).
    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). Loss and degradation of habitat from water diversion or 
draining of wetlands that historically supported Wright's marsh thistle 
has been reported in Chaves, Otero, and Sierra Counties, New Mexico 
(Sivinski 1994, pp. 1-2; 1996, p. 4; 2005, p. 1; 2006, p. 4). The 
extent of ongoing and future water diversions is related to the extent 
of urban and agricultural development within a given area. 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, pp. 
39-56). The alteration and loss of Wright's marsh thistle habitat from 
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, pp. 39-56).
    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. Population 
sizes have decreased in springs and wet valleys affected by drought in 
at least three canyons of the Sacramento Mountains, New Mexico. Similar 
water loss may affect other Wright's marsh thistle localities (USFWS 
2017, p. 45). If changes in climate lead to future drought, additional 
dewatering and reduction of habitat for the thistle may occur.
    We obtained downscaled climate projections (as of 2018) for our 
analysis of Wright's marsh thistle from the Climate Explorer program in 
the U.S. Climate Resilience Toolkit (NOAA 2014, unpaginated). The 
Climate Explorer is based on 32 models and produces a mean that 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 representative 
concentration pathway (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 current locations of Wright's 
marsh thistle 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 carbon dioxide (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, potentially impacting the 
availability of water during times critical to the life-history 
processes of Wright's marsh thistle (NOAA 2014, unpaginated).
    Specific details on the effects of climate change are located in 
chapter 4 of the SSA report (USFWS 2017, pp. 39-56). Projected 
increases in temperature and increased variability in precipitation at 
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 water 
availability and withdrawals.
    Summary of Decreased Water Availability--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 
types of Wright's marsh thistle habitat 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 occurs at Wright's marsh thistle 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 (see 75 FR 67925; November 4, 2010). 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 federally threatened Sacramento Mountains 
thistle (Cirsium vinaceum), which is also found in New Mexico and is 
associated with habitats similar to those occupied by Wright's marsh 
thistle (52 FR 22933; June 16, 1987), 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, pp. 49-50).
    The 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, while spring and 
early summer grazing probably reduces growth, survival, and 
reproduction. Late summer and early

[[Page 25213]]

fall grazing are most severe, as flowering plants typically set seed at 
this time; 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 
negative effects to populations of Wright's marsh thistle. Increased 
use of wet springs and marshes by livestock during drought conditions 
constitutes a significant stressor to the thistle 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. Although 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.
    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 increased occurrence of 
the common reed in Wright's marsh thistle habitat is a current threat 
to the species due to increased wildfire risk, competition, and changes 
in hydrology (impacts on degree of soil saturation). The impact that 
common reed causes as compared to other nonnative plant species, 
especially when habitat is disturbed through burning or drying is 
greater than other invasive species. The dense plant growth of the 
common reed blocks sunlight to other plants growing in the immediate 
area and occupies all available habitat (PCA 2005, p. 1). The impacts 
from common reed 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 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). Because Wright's 
marsh thistle populations are relatively small and isolated, the 
impacts of native and nonnative plants could pose a significant 
stressor to the thistle despite ongoing efforts for habitat restoration 
at other locations (Bitter Lake NWR). Because Wright's marsh thistle 
populations are relatively small and isolated, 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 negative 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 
negative effects of this stressor.
Oil and Gas Development and Mining
    Oil and gas development occur within and adjacent to (i.e., within 
10 miles) some areas occupied by Wright's marsh thistle, including 
Santa Rosa, Bitter Lake NWR, and Blue Spring (New Mexico State Lands 
Office 2017, unpaginated; NMDGF 2007, pp. 18-19; NMDGF 2005, p. 35). 
There are also mining activities adjacent to (i.e., within 5 miles) 
other occupied 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, unpaginated; New Mexico State Lands Office 
2017, unpaginated; Sivinski 2012, p. 9). As of July 8, 2021, 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 water quality 
contamination.
    Contamination from oil and gas development has been observed within 
close proximity (i.e., within 16 kilometers (km) (10 miles (mi)) of 
some Wright's marsh thistle localities (New Mexico State Lands Office 
2017, unpaginated). While laws and regulations related to water quality 
have reduced the risk of contamination in and near occupied locations 
from oil and gas production, a spill that could impact these habitats 
is still likely based on the high volume of oil and gas leases near the 
locations.
    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, while mining activities could alter or destroy habitat.
    The largest habitat area occupied by Wright's marsh thistle 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

[[Page 25214]]

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.

                                  Table 1--Stressors Impacting Each of the Eight Populations of Wright's Marsh Thistle
                                                                 [USFWS 2017, pp. 39-56]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                           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 at 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. Bitter Lake 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-meter (m) (200-foot (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. Furthermore, 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 States). Thus, the Federal protection 
afforded to this plant by listing it as a threatened species will 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 19 NMAC 
15.2 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.

Current Condition of Wright's Marsh Thistle

    To determine the species' current condition, we ranked each 
population based on six factors relating to population and habitat 
variables: 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 (USFWS 2017 pp. 35-36). These criteria were used to determine an 
overall condition for each of the eight extant populations for which we 
had sufficient information. Three additional populations of Wright's 
marsh thistle were identified during the public comment period; 
however, due to insufficient information associated with these three 
populations, we were unable to determine an overall condition. The 
overall condition of a population refers to the estimated likelihood of 
persistence over time.
    We define a population in high overall condition to have a greater 
than 90 percent likelihood of persistence over the next 25 years (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 next 25 years 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 next 25 years (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

[[Page 25215]]

next 25 years (75 to 100 percent likelihood of extirpation).
    The best available information indicates that Wright's marsh 
thistle is currently found at eight localities in New Mexico, as well 
as three new potential localities (one in New Mexico, one in Texas, and 
one in Mexico). We have very little information on these new 
localities, as further explained under Summary of Comments and 
Recommendations below; as a result, one potential new locality in New 
Mexico (associated with a Natural Resources Conservation Service 
conservation easement) and the other two potential localities in Texas 
and Mexico did not weigh heavily into our analysis of the status of the 
species because their presence has not been verified in terms of 
populations size and habitat. We concluded that the plant has been 
extirpated in Arizona and two locations in New Mexico. According to our 
current condition rankings outlined in chapter 3 of the SSA report 
(USFWS 2017, pp. 14-38), three of the eight extant populations in New 
Mexico were determined to have moderate resiliency, two have low 
resiliency, and three have very low resiliency and are at risk of 
extirpation. Across its range, the thistle demonstrates genetic and 
environmental diversity (representation) 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 area 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.

Future Scenarios Considered

    As there are a range of possibilities regarding the intensity of 
stressors acting on the populations (i.e., decreased water availability 
to habitat, ungulate grazing, native and nonnative plants, oil and gas 
development, and mining), 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, but we did combine the 
various threat ratings to provide an overall population condition 
rating using professional judgment. 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. With regard to climate change models, we used a high 
to low emissions climate change scenarios from the 2017 U.S. Climate 
Resilience Toolkit, which provides a range of projections for 
temperature and precipitation through 2100 (NOAA 2014, unpaginated). 
While the U.S. Climate Resilience Toolkit (which was accessed in 2017) 
used older data, current IPCC reports project similar trends to the 
climate models that we used in the SSA report (IPCC 2021, p. 14). 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. We can project availability of water resources 
and effects from climate change (temperature and reduced precipitation) 
beyond 50 years into the future. However, given our knowledge of the 
species, their response to known threats, and the future trends of 
these threats, we determined that 50 years was an appropriate timeframe 
for our analysis. Our future scenarios were based on the aggregation of 
all the threats considered, rather than individual threats. 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 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.

[[Page 25216]]

    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, pp. 57-
100).

               Table 2--Condition Ratings for Each of the Eight Populations of Wright's Marsh Thistle Under Four Possible Future Scenarios
                                                                [USFWS 2017, pp. 57-100]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Scenario 1:
            Population                Current condition      continuing current        Scenario 2:        Scenario 3: major   Scenario 4: severe effects
                                                                 conditions            optimistic              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.

Summary of Comments and Recommendations

    As discussed in the Supporting Documents, above, we received 
comments on the SSA report from one peer reviewer. We reviewed all 
comments we received from the peer reviewer for substantive issues and 
new information regarding Wright's marsh thistle and its critical 
habitat. The peer reviewer suggested we expand our descriptions of how 
condition scenarios were developed and how threats were assessed 
against the population (e.g., at an individual population level or 
based on the eastern and western portions of the populations). We 
addressed their comments by providing clarifying information on how 
each condition scenario was developed and how threats were assessed at 
the population and range wide scales. The peer reviewer also provided 
additional information and clarification on the species biology and 
life history. Peer reviewer comments were incorporated into the final 
SSA report making our scenario descriptions, analysis, and conclusions 
stronger.
    We requested written comments from the public on the September 29, 
2020, proposed rule (85 FR 61460) during a 60-day comment period that 
closed on November 30, 2020. We contacted appropriate Federal, State, 
and Tribal agencies, scientific experts and organizations, and other 
interested parties and invited them to comment on the proposal. We did 
not receive any requests for a public hearing. Our summary responses to 
the substantive comments we received on the September 29, 2020, 
proposed rule, are provided below. Comments simply providing support 
for, or opposition to, the proposed rule without any supporting 
information were not considered to be substantive and we do not provide 
a response. All substantive information provided during the comment 
period has either been incorporated directly into this final 
determination or is addressed below.

Comments From States

    (1) Comment: Two States, New Mexico and Texas, commented that 
Wright's marsh thistle was collected in Presidio County, Texas, in 2003 
and verified in 2018 (Nesom 2018, entire) and historically occurred in 
Pecos County, Texas. Per the comments, the Presidio County specimen was 
originally misidentified as a more common species, and upon 
reexamination the specimen was determined to be Wright's marsh thistle 
Similarly, the Pecos County, Texas, specimen was collected in 1849 and 
misidentified at the time of collection. Reexamination resulted in the 
specimen being identified as Wright's marsh thistle based on the same 
diagnostic morphology as the Presidio County specimen. Botanists from 
New Mexico and Texas agree with these determinations for both 
specimens.
    Our Response: We updated the final rule to reflect the 
identification of these two specimens from Texas, as they contribute to 
the historical and current distribution of Wright's marsh thistle.
    (2) Comment: The State of Texas commented that the population in 
Presidio County, which we were not aware of at the time of proposed 
listing and thus was not included in our proposed critical habitat 
designation, should not be included in the final critical habitat 
designation, because they claimed the population is rare but protected 
from threats, and critical habitat designation could impede voluntary 
conservation efforts.

[[Page 25217]]

    Our Response: We did not include this site as critical habitat for 
Wright's marsh thistle because we could not determine that this site 
meet the definition of critical habitat. While this location is not a 
new site (an herbarium specimen was collected in 2003), we were unaware 
that Wright's marsh thistle had been found in Presidio County, Texas, 
until we received this information about the rediscovery of the 
herbarium specimen and the diagnostic analysis conducted. Based on our 
review of the information provided, we incorporated the additional 
occurrence information for Presidio County, Texas, into this final 
rule. We were unable to verify the species information provided by the 
commenter or assess the location against the criteria established for 
designating critical habitat. Therefore, this location is not included 
within our final critical habitat designation.
    (3) Comment: The State of New Mexico commented that a population at 
Rattlesnake Springs at Carlsbad Caverns National Monument previously 
identified as a possible hybrid population was surveyed in 2012. No 
Wright's marsh thistle plants were found at the site; only Texas 
thistle (Cirsium texanum).
    Our Response: The SSA report for Wright's marsh thistle noted that 
the population at Rattlesnake Springs at Carlsbad Caverns was a hybrid 
between Wright's marsh thistle and Texas thistle (USFWS 2017, p. 14). 
The commenter did not provide us with any additional information such 
as an official report, note, photograph, or herbarium documentation 
that re-identifies this population as Texas thistle.
    (4) Comment: The State of New Mexico noted that Wright's marsh 
thistle was rediscovered in Mexico in 2018 in one of five locations 
surveyed (Sanchez-Escalante et.al. 2019, pp. 7-10).
    Our Response: The September 29, 2020, proposed rule (85 FR 61460) 
used the best available data regarding Wright's marsh thistle 
distribution and abundance, including the known historical and current 
population locations available to us during the development of the 
proposed rule. Based on this new information regarding rediscovery of 
the species in Mexico, we updated this final rule to reflect the 
identification of this location from Mexico, as it contributes to the 
historical and current distribution of Wright's marsh thistle.
    (5) Comment: The State of New Mexico stated that the proposed 
critical habitat around the old fishponds in Santa Rosa, New Mexico 
(Subunit 1a, Blue Hole Hatchery), is all but destroyed and will likely 
be completely destroyed given current development plans by the City of 
Santa Rosa. Hence, the commenter did not think the site could be 
considered essential to the conservation of the species.
    Our Response: We reviewed the available information pertaining to 
the biological needs of the species and habitat characteristics where 
this species is located at Blue Hole Hatchery (Subunit 1a) and found 
that the site still remains occupied and retains the necessary physical 
and biological features essential to the conservation of the species. 
Additionally, although the area has been disturbed, it is likely that 
Wright's marsh thistle seeds are persisting in the soils at the site, 
creating a seed bank. Designation of critical habitat at this location 
will help ensure that the remaining population and any associated seeds 
present at this site are protected into the future. Additionally, in 
areas that are occupied at the time of listing, critical habitat may be 
designated in areas that contain the necessary physical and biological 
features and may require special management or protection. The physical 
and biological features in this unit may require special management 
considerations to protect the species from impacts associated with 
ground and surface water depletion, as well as native and nonnative 
plant invasion. Special management or protection may include 
implementing watershed/wetland restoration efforts. Because this site 
is currently occupied and contains the physical and biological features 
essential to the conservation of the species and which may require 
special management considerations or protection, this location meets 
the definition of critical habitat (see Criteria Used To Identify 
Critical Habitat, below) and is included in this final designation.
    (6) Comment: The State of New Mexico provided information 
associated with a previously undocumented population on private lands 
in New Mexico on the Redhawk Conservation Easement which was placed in 
stewardship through the conservation easement program with the Natural 
Resources Conservation Service (NRCS). The commenter recommended that 
the Service designate this population, which contains several thousand 
plants, as critical habitat.
    Our Response: The Service reached out to NRCS and other individuals 
with knowledge of this population of Wright's marsh thistle to request 
information about the Redhawk Conservation Easement. To date, we have 
been unable to verify that the Redhawk Conservation Easement contains a 
population of Wright's marsh thistle and have not been able to assess 
if the physical and biological features exist at this location. 
Therefore, we made no changes to this final rule as a result of this 
comment, and this potential location is not designated as critical 
habitat in this rule. If we receive new information in the future as a 
result of additional surveys, we will analyze such information in the 
course of developing a recovery plan for the species or in 5-year 
reviews of its status. If we determine that the new information 
indicates that the area meets the Act's definition of critical habitat, 
we may choose to revise our critical habitat designation for this 
species following the Service's established processes for revising a 
critical habitat designation.
    (7) Comment: The State of New Mexico provided additional 
information regarding Wright's marsh thistle population trends at two 
cienegas in Santa Rosa, New Mexico. Specifically, the commenter noted 
that, based on 3- to 5-year trend data from Blue Hole and Ballpark 
cienegas, the trend appears to be declining despite extensive habitat 
restoration efforts. The commenter suggested that we should adjust our 
population condition ratings for the two cienegas in the Future 
Scenario 1 from moderate to low.
    Our Response: We relied on the best available data to develop the 
condition ratings referenced by the commenter in Table 2 of the 
September 29, 2020, proposed rule (85 FR 61460; see p. 61469). The four 
scenarios incorporated the best available information on projections of 
threat data up to 50 years into the future. We reviewed the information 
provided by the commenter, but we did not make any changes to this 
final rule as a result of the information because a relatively high 
number of patches of Wright's marsh thistle continue to exist at this 
location. After considering the information presented by the commenter, 
we conclude that the underlying information relied on to establish this 
condition rating is still accurate; however, the information provided 
by the commenter, as well as any new information that may become 
available to us, will be considered and analyzed in the course of 
developing a recovery plan for the species, or in a future 5-year 
review of its status.

Comments From the Public

    (8) Comment: A commenter disagreed with our identification of 
stressors. Specifically, they stated that although the September 29, 
2020, proposed rule (85 FR 61460) identified stressors

[[Page 25218]]

including decreased water availability to habitat, ungulate grazing, 
native and nonnative plants, and oil and gas development and mining, 
the Service did not conduct enough research to make a determination of 
which stressor or combination of stressors would lead to a reduction in 
the size of sites.
    Our Response: We are required, by the Act, to make our listing 
determinations solely on the basis of the best commercial and 
scientific information available at the time the proposed rule is 
developed. The stressors identified in the September 29, 2020, proposed 
rule (85 FR 61460) are those that were known to be currently impacting 
the species when we published that proposal. While there may be other 
stressors that affect Wright's marsh thistle, we lacked sufficient 
information about those stressors and their effects to assess their 
impacts on the species. The SSA report assesses how individual 
stressors affect the species, as well as how stressors, in combination 
with each other, may act cumulatively to affect the species. The 
information upon which we based our rationale for including these 
stressors as the primary threats to Wright's marsh thistle is cited 
earlier in this final rule and more thoroughly discussed in chapter 4 
of the SSA report (USFWS 2017, pp. 39-56).
    (9) Comment: A commenter stated their opposition to the 4(d) rule 
based on the fact that important water sources occur in the same 
locations where Wright's marsh thistle is growing. Wildlife and 
livestock use these waters for their survival, and some water sources 
have official water rights registered in the respective counties. The 
commenter stated that Federal agencies must be respectful of water 
rights as private property rights and seek alternative resolutions with 
all parties involved to sustain Wright's marsh thistle's survival.
    Our Response: As stated in the proposed and this final 4(d) rule, 
the prohibitions identified are limited to removing and reducing to 
possession the species from areas under Federal jurisdiction; 
maliciously damaging or destroying any such species on any such area; 
or removing, cutting, digging up, or damaging or destroying any such 
species on any other area in knowing violation of any law or regulation 
of any State law or regulation or in the course of any violation of a 
State criminal trespass law. Therefore, other than actions to the 
species committed in knowing violation of any State law or regulation 
or in the course of any violation of a State criminal trespass law, 
water rights will not be affected by the implementation of this 4(d) 
rule for Wright's marsh thistle. Also, in addition to the public 
comment period provided for the September 29, 2020, proposed rule (85 
FR 61460), we have engaged with Federal, Tribal, and State governments, 
as well as nongovernmental organizations and the general public, by 
soliciting review and comment on the SSA report. We will continue to 
work with all interested parties, including private property owners, on 
the conservation of Wright's marsh thistle into the future.
    (10) Comment: A commenter stated the Service should list the 
Wright's marsh thistle as endangered rather than threatened because of 
the contraction in the species' range, reduction in genetic diversity, 
lack of effective conservation measures, and widespread alterations of 
waterways in the Southwest.
    Our Response: Based on the SSA report (USFWS 2017, entire), which 
characterizes the viability of the species now and into the future, we 
found the species did not meet the Act's definition of an endangered 
species. Currently, three Wright's marsh thistle populations have 
moderate resiliency, the species exhibits population redundancy, and 
there are two representative areas (east and west) that support genetic 
and environmental diversity. Therefore, the species is not currently in 
danger of extinction. Rather, the species meets the Act's definition of 
a threatened species because of the stressors that are affecting 
Wright's marsh thistle's long-term viability. No information we 
received during the public comment period led us to change that status 
determination. If we receive new information in the future, we will 
analyze such information in the course of developing a recovery plan 
for the species or in 5-year reviews of its status. If we determine 
that the new information indicates that the species' status should be 
changed from threatened to endangered, we would begin rulemaking to 
reclassify the species.
    (11) Comment: One commenter stated that we incorrectly set our 
``foreseeable future'' at 25 years when we should have used 50 years, 
as was analyzed in the SSA report.
    Our Response: As discussed in the September 29, 2020, proposed rule 
(85 FR 61460), we looked at a variety of timeframes, including 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, 25 years was the maximum time that the Service could reasonably 
determine that future threats and the species' response to those 
threats are likely. We note, however, that Wright's marsh thistle was 
determined to be at risk of extinction in the 25-year timeframe and, as 
the primary projected threats would not likely be reduced or 
ameliorated past that point in time, the species would also be at risk 
of extinction in the 50-year timeframe.
    (12) Comment: One commenter stated that we should designate 
additional critical habitat for Wright's marsh thistle, including in 
Texas, in unoccupied portions of the historical range that have other 
species of flowering plants that serve to attract pollinators and 
provide patches between occupied habitat, and places that have no 
confirmed historical occurrences of the Wright's marsh thistle but that 
are known to have originally functioned as cienegas or other wetlands 
and that can be restored as such. These sites would then be suitable 
for reintroduction of the thistle. Another commenter requested that we 
expand the designation of critical habitat to include historical 
habitat in eastern Arizona, western parts of Texas, and Blue Springs 
State Park in Florida.
    Our Response: As required by section 4(b)(2) of the Act, we use the 
best scientific data available to designate critical habitat. In 
accordance with the Act and our implementing regulations at 50 CFR 
424.12(b), we reviewed available information pertaining to the habitat 
requirements of the species and identified specific areas within the 
geographical area occupied by the species at the time of listing that 
contain the physical and biological features essential to the 
conservation of the species and may need special management or 
protection. We did not identify any areas outside the geographical area 
occupied by the species that are essential for Wright's marsh thistle 
conservation. For our SSA, we analyzed the best available data 
regarding Wright's marsh thistle distribution and abundance (including 
the known historical and current population locations) and considered 
the conservation needs of the species (USFWS 2017, pp. 14-28).
    Additionally, for this final rule, we reviewed and considered new 
information we received during the public comment period for the 
proposed rule (85 FR 61460) published September 29, 2020, including 
information on previously unknown Wright's marsh thistle occurrences in 
eastern Arizona, western parts of Texas, and an alleged occurrence at 
Blue Springs State Park in Florida. However, we found the information 
provided on the Texas and Arizona occurrences was not sufficient

[[Page 25219]]

to substantiate that these sites meet the Act's definition of critical 
habitat for this species. For the Texas occurrence, although the 
specimen was first collected in 2003, we were unable to verify the 
species presence based on the information provided by the commenter or 
assess the location against the criteria established for designating 
critical habitat. The historical locations in Arizona are areas that 
are no longer occupied by the species and these historical locations 
lack the physical and biological features for the species. Please see 
Areas Occupied at the Time of Listing for a more in-depth explanation 
for both Texas and Arizona populations. To our knowledge, the species 
has never been documented in Florida and no physical evidence of the 
species was provided; therefore, we conclude based on the best 
scientific data available that Florida is not part of the range of the 
species. Furthermore, in the critical habitat discussion below, we 
found that the areas currently occupied by the species are sufficient 
to conserve the species. Thus, we do not plan to designate unoccupied 
areas as critical habitat as they are not essential for the species 
conservation. If new information becomes available, we will consider it 
when developing our recovery plan for the species.

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 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 historical 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; 
Sivinski 2012, entire). As a result, the current extant area of the 
remaining 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, pp. 36). The species historically had 
representation in the form of two morphologically distinct and 
geographically separate forms (eastern and western populations); the 
species continues to maintain representation currently in these forms, 
although population sizes have decreased. Population redundancy is 
maintained across these representation areas, as well.
    Wright's marsh thistle is facing threats across its range that have 
led to reduced resiliency, redundancy, and representation. 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 projected no change in 
resiliency for the eight populations.
    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 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 moderate resiliency for their current condition. Populations with 
moderate resiliency have some ability to withstand stochastic events 
and continue to contribute to overall redundancy for the species. The 
threats currently acting on the thistle are likely to reduce the size 
of some populations as water availability becomes restricted, but the 
populations currently maintain sufficient resiliency. 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 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 timeframes, 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.

[[Page 25220]]

    Our analysis of the species' current and future conditions shows 
that 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 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 
Current Conditions'' 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 ``Continuing Current 
Conditions'' scenario becomes less likely. 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, pp. 57-59).
    Due to the continuation of threats at increasing levels, we 
anticipate a severe future reduction in the thistle's 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 very 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 and 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 
foreseeable future, throughout all of its range, and it, therefore, 
meets the Act's definition of a threatened species.

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, 435 
F. Supp. 3d 69 (D.D.C. 2020) (Everson), vacated the aspect of the Final 
Policy on Interpretation of the Phrase ``Significant Portion of Its 
Range'' in the Endangered Species Act's Definitions of ``Endangered 
Species'' and ``Threatened Species'' (Final Policy; 79 FR 37578; July 
1, 2014) that provided that the Service does not undertake an analysis 
of significant portions of a species' range if the species warrants 
listing as threatened throughout all of its range. Therefore, we 
proceed to evaluating whether the species is endangered in a 
significant portion of its range--that is, whether there is any portion 
of the species' range for which both (1) the portion is significant; 
and (2) the species is in danger of extinction in that portion. 
Depending on the case, it might be more efficient for us to address the 
``significance'' question or the ``status'' question first. We can 
choose to address either question first. Regardless of which question 
we address first, if we reach a negative answer with respect to the 
first question that we address, we do not need to evaluate the other 
question for that portion of the species' range.
    Following the court's holding in Center for Biological Diversity, 
we now consider whether there are any significant portions of the 
species' range where the species is in danger of extinction now (i.e., 
endangered). In undertaking this analysis for 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 portions of the range where 
the species may be endangered. We evaluated the range of the Wright's 
marsh thistle to determine if the species is in danger of extinction 
now in any portion of its range. The range of a species can 
theoretically be divided into portions in an infinite number of ways. 
We focused our analysis on portions of the species' range that may meet 
the definition of an endangered species. For Wright's marsh thistle, we 
considered whether the threats or their effects on the species are 
greater in any biologically meaningful portion of the species' range 
than in other portions such that the species is in danger of extinction 
now in that portion.
    We examined the following threats: decreased water availability 
from drought and water management practices (e.g., groundwater pumping 
and surface water diversions) (Factor A); native and nonnative plants 
(Factor A and E); livestock grazing (herbivory; Factor C); oil, gas, 
and mining development (Factor A and E); and the cumulative effects of 
these threats. Population condition differences exist between the 
eastern and the western portions of the range. The populations in the 
western part of the range of Wright's marsh thistle are all in lower 
condition--either low or very low--than those in the eastern portion of 
the species' range, are all in moderate or better condition. Therefore, 
because the western populations have a lower resiliency and, therefore, 
higher risk of extirpation, the western populations may have a 
different status.
    We then proceeded to the significance question, asking whether 
there is substantial information indicating that the western portion of 
the range may be significant. As an initial note, the Service's most 
recent definition of ``significant'' within agency policy guidance has 
been invalidated by court order (see Desert Survivors v. Dep't of the 
Interior, No. 16-cv-01165 (N.D. Cal. Aug. 24, 2018). Therefore, for 
purposes of this analysis the Service is screening for significant 
portions of the range by applying any reasonable definition of 
``significant.'' Biological importance/significance is often considered 
in terms of resiliency, redundancy, or representation. We evaluated the 
available information about the western populations of Wright's marsh 
thistle in this context, assessing its significance in terms of these 
conservation concepts, and determined the information did not 
substantially indicate it may be significant. The five populations in 
the western area comprise a total of 7.2 acres, out of a total of 108.3 
acres that the species currently occupies: 6.7 percent of the species' 
range. The small area occupied by the western populations relative to 
the species' overall range led us to conclude that this portion of the 
Wright's marsh thistle range is not significant in terms of its overall 
contribution to the species' resiliency, redundancy, and 
representation. Therefore, because we could not answer the significance 
question in the affirmative, we conclude that the western population 
does not warrant further consideration as a significant portion of the 
range.
    Overall, we found no substantial information that would indicate 
the western populations may be significant. While this area provides 
some

[[Page 25221]]

contribution to the species' overall ability to withstand catastrophic 
or stochastic events (redundancy and resiliency, respectively), the 
species has larger populations that occupy larger areas in the east. 
Therefore, because we could not answer both the status and significance 
questions in the affirmative, we conclude that the western portion of 
the range does not warrant further consideration as a significant 
portion of the range of Wright's marsh thistle. 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.

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that Wright's marsh thistle meets the Act's 
definition of a threatened species. Therefore, we are listing 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. Section 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/program/endangered-species), or from our New 
Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION 
CONTACT).
    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 achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    Funding for recovery actions for this species 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, states within which Wright's marsh thistle occur 
including New Mexico and Texas will 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/service/financial-assistance. Please let us know if you are interested 
in participating in recovery efforts for Wright's marsh thistle. 
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. 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 Wright's marsh thistle 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 listing on 
proposed and ongoing activities within the range of the species. The 
discussion below regarding protective regulations under section 4(d) of 
the Act complies with our policy.

II. Final Rule Issued Under Section 4(d) of the Act

Background

    Section 4(d) of the Act contains two sentences. The first sentence 
states that the Secretary shall issue such regulations as [she] deems 
necessary and advisable to provide for the conservation of species 
listed as threatened. The U.S. Supreme Court has

[[Page 25222]]

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 [her] with regard to the permitted activities for those species. The 
Secretary may, for example, permit taking, but not importation of such 
species, or [she] may choose to forbid both taking and importation but 
allow the transportation of such species'' (H.R. Rep. No. 412, 93rd 
Cong., 1st Sess. 1973).
    Exercising this authority under section 4(d), the Service developed 
a 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 4(d) rule will 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 rule are one of many tools that the Service will use to promote 
the conservation of the Wright's marsh thistle.
    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 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 that 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.
    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.
    This obligation does not change in any way for a threatened species 
with a species-specific 4(d) rule. Actions that result in a 
determination by a Federal agency of ``not likely to adversely affect'' 
continue to require the Service's written concurrence and actions that 
are ``likely to adversely affect'' a species require formal 
consultation and the formulation of a biological opinion.

Provisions of the 4(d) Rule

    This 4(d) rule will 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 any such 
species on any such area; or removing, cutting, digging up, or damaging 
or destroying any such species on any other area in knowing violation 
of any law or regulation of any State law or regulation 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 (Factor A). 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, this 
4(d) rule will help in the efforts to recover the species.
    Despite these prohibitions regarding threatened species, we may 
under certain circumstances issue permits to carry out one or more 
otherwise-prohibited activities, including those described above. The 
regulations that govern permits for threatened plants state that the 
Director may issue a permit authorizing any activity otherwise 
prohibited with regard to threatened species (50 CFR 17.72). Those 
regulations also state that the permit shall be governed by the 
provisions of Sec.  17.72 unless a special rule applicable to the plant 
is provided in Sec. Sec.  17.73 to 17.78. Therefore, permits for 
threatened species are governed by the provisions of Sec.  17.72 unless 
a species-specific 4(d) rule provides otherwise. However, under our 
recent revisions to Sec.  17.71, the prohibitions in Sec.  17.71(a) 
will not apply to any plant listed as a threatened species after 
September 26, 2019. As a result, for threatened plant species listed 
after that

[[Page 25223]]

date, any protections must be contained in a species-specific 4(d) 
rule. We did not intend for those revisions to limit or alter the 
applicability of the permitting provisions in Sec.  17.72, or to 
require that every species-specific 4(d) rule spell out any permitting 
provisions that apply to that species and species-specific 4(d) rule. 
To the contrary, we anticipate that permitting provisions would 
generally be similar or identical for most species, so applying the 
provisions of Sec.  17.72 unless a species-specific 4(d) rule provides 
otherwise would likely avoid substantial duplication. Moreover, this 
interpretation brings Sec.  17.72 in line with the comparable provision 
for wildlife at 50 CFR 17.32, in which the second sentence states that 
the permit shall be governed by the provisions of Sec.  17.32 unless a 
special rule applicable to the wildlife, appearing in 50 CFR 17.40 to 
17.48, provides otherwise. Under 50 CFR 17.72 with regard to threatened 
plants, a permit may be issued for the following purposes: for 
scientific purposes, to enhance propagation or survival, for economic 
hardship, for botanical or horticultural exhibition, for educational 
purposes, or for other purposes consistent with the purposes and policy 
of the Act. Additional statutory exemptions from the prohibitions are 
found in sections 9 and 10 of the Act.
    We recognize 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, 
will 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 4(d) rule will 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.

III. Final 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 
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

[[Page 25224]]

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.
    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 prohibitions found in section 9 of the Act. 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.

Critical Habitat Prudency and Determinability

    In our SSA report and the 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 the species and that those threats in some way can be 
addressed by section 7(a)(2) consultation measures. Accordingly, such a 
designation could be beneficial to the species. 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. We have also 
reviewed the available information pertaining to the biological needs 
of the species and habitat characteristics where the 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

[[Page 25225]]

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, 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.
    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 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 designating any areas 
outside the geographical area occupied by the species because formerly 
occupied areas, such as the ones at Lake Valley, New Mexico, and San 
Bernadino, Arizona, have become unsuitable due to lack of water as a 
result of various development activities. Therefore, the unoccupied 
(but historically occupied) locations do not support any of the 
physical or biological features for the Wright's marsh thistle and will 
not contribute to future conservation. Thus, we have not identified any 
unoccupied areas that meet the definition of critical habitat.
    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 SSA and this 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 critical habitat designation includes currently occupied sites 
within the species' historical range that have

[[Page 25226]]

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 in Arizona (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. A site in 
Presidio County, Texas, was identified in 2003, and mentioned during 
the proposed rule's public comment period as having Wright's marsh 
thistle. The Texas specimen was collected in 2003 and misidentified as 
a different thistle species. It was not correctly identified until 
2018, but no field surveys have been conducted to determine if the 
species still exists at this site. We have insufficient information 
associated with the Texas location to know if this site is occupied at 
the time of listing and we are unsure if this population has persisted 
since the original collection was made. We also do not have any 
information about whether the habitat is intact and if it contains one 
or more of the necessary physical or biological features for the 
species for us to consider designating this location as critical 
habitat under the first prong of the Act's definition of critical 
habitat. Likewise, the best available scientific data are not 
sufficient for us to determine if the site is essential for the 
conservation of the thistle at this time (i.e., qualifies for 
consideration as critical habitat under the second prong of the Act's 
definition of critical habitat).
    New Mexico had 10 historical occurrences, but in a recent search 
effort at one of the locations (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 likely a hybrid between Wright's marsh thistle and 
Texas thistle (NMRPTC 2009, p. 2), and the site where it was recorded 
is now a golf course. A new potential site in New Mexico located on a 
Natural Resources Conservation Service easement was identified during 
the September 29, 2020, proposed rule's public comment period; however, 
we lack sufficient information to determine if one or more physical and 
biological features exist at this site. Therefore, we do not consider 
these three sites in New Mexico to be essential to the conservation of 
the thistle, because the species is no longer present, the habitat is 
no longer suitable, the species was misidentified, or we lack 
sufficient information. 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;
    (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 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 rule have been excluded by 
text in the rule and are not designated as critical habitat. Therefore, 
a Federal action involving these lands will 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 are designating as critical habitat lands that we 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 designating any areas that are not 
currently occupied by the species because we were unable to identify 
areas that support the physical and biological features. Additionally, 
we did not designate additional areas that were recommended for 
consideration during the public comment period because we do not have 
sufficient information to determine if they are occupied at the time of 
listing or that the physical and biological features exist at any of 
these locations and, therefore, cannot conclude that any area would be 
essential for the conservation of the species.
    Eight units and 13 subunits meet the definition of critical habitat 
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 necessary to support multiple life- history processes. 
However, at the subunits level, some stressors such as non-native 
plants may limit the ability of the Wright's marsh thistle to access 
the available physical and biological features. Unit 4 and a portion of 
Unit 6 are excluded from the designation for reasons described below in 
Exclusions. The final 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 Regulation Promulgation. We include 
more detailed information on the boundaries of the critical habitat 
designation in the preamble of this rule. 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/office/new-mexico-ecological-services.

Critical Habitat Designation

    We are designating 63.4 ha (156.8 ac) in 7 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 critical habitat unit. Table 4 
breaks down the approximate percentage and size of the total critical 
habitat designation by ownership type. Approximately 35 hectares (87 
acres) of Wright's marsh thistle critical habitat overlaps with the 
critical habitat of other species, including 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).

[[Page 25227]]



                           Table 3--Critical Habitat Units for Wright's Marsh Thistle
----------------------------------------------------------------------------------------------------------------
                                      Subunit number and
       Unit number and name                  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..............  Excluded.
----------------------------------------------------------------------------------------------------------------
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..............  Excluded.
----------------------------------------------------------------------------------------------------------------
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).
----------------------------------------------------------------------------------------------------------------
    Total.........................  .....................  ....................  63.4 ha (156.8 ac).
----------------------------------------------------------------------------------------------------------------
Note: Area estimates reflect all land within critical habitat unit boundaries, and estimates may not sum due to
  rounding.


   Table 4--Approximate Percentage and Size of Total Critical Habitat
        Designation for Wright's Marsh Thistle per Ownership Type
------------------------------------------------------------------------
                                   Percent of total         Size of
         Ownership type               designation         designation
------------------------------------------------------------------------
Private.........................  33.9..............  21.5 ha (53.18
                                                       ac).
Federal.........................  30.6..............  19.45 ha (48 ac).
State...........................  19.9..............  12.65 ha (31.2
                                                       ac).
City............................  15.6..............  9.88 ha (24.4 ac).
Tribal..........................  Excluded..........  Excluded.
------------------------------------------------------------------------

    We present brief descriptions of all units 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. All 
subunits within the Santa Rosa unit contain all of the physical or 
biological features necessary to support the species.
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 is occupied by 
Wright's marsh thistle and contains all of the physical or biological 
features necessary to support the species. Subunit 1a 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 and 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.
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 is occupied by Wright's 
marsh thistle and contains all of the physical or biological features 
necessary to support the species. Subunit 1b 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 and decrease 
competition with native and nonnative plants via prescribed burning and 
mechanical treatments, if necessary.

[[Page 25228]]

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 is occupied by Wright's marsh thistle and contains 
all of the physical or biological features necessary to support the 
species. Subunit 1c 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 depletion, 
as well as native and nonnative plant invasion. Such special management 
or protection may include conservation efforts to ensure water 
availability and 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.
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 is occupied by 
Wright's marsh thistle and contains all of the physical or biological 
features necessary to support the species. Subunit 1d 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 and 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. 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 is occupied by Wright's marsh thistle and contains 
all of the physical or biological features necessary to support the 
species. Subunit 1e 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 and 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.
Subunit 1f: Perch Lake
    Subunit 1f consists of 1.9 ha (4.6 ac) in Guadalupe County, New 
Mexico. This subunit is occupied by Wright's marsh thistle and contains 
all of the physical or biological features necessary to support the 
species. Subunit 1f 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 and 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. 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 is occupied by Wright's marsh thistle and contains 
all of the physical or biological features necessary to support the 
species. Subunit 1g 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 and 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. 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 is occupied 
by Wright's marsh thistle and contains all of the physical or 
biological features necessary to support the species. Subunit 1h 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 and 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 2: Alamosa Springs

    Unit 2 consists of 1.58 ha (3.9 ac) in Socorro County, New Mexico. 
This unit is occupied by Wright's marsh thistle and contains all the 
physical or biological features necessary to support the species. Unit 
2 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, protect 
ground water and soil from contaminants during mining activities, and 
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 occupied by Wright's marsh thistle and is entirely 
managed by the U.S. Fish and Wildlife Service. Both subunits within the 
Bitter Lake unit contain all

[[Page 25229]]

of the physical or biological features necessary to support Wright's 
marsh thistle. This unit overlaps with occupied habitat for the 
federally endangered Koster's springsnail, Noel's amphipod, and Roswell 
springsnail. 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. This 
subunit is occupied by Wright's marsh thistle and contains all of the 
physical or biological features necessary to support the species. 
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, prevent spills and protect groundwater 
during oil and gas development, and decrease 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. This 
subunit is occupied by Wright's marsh thistle contains all of the 
physical or biological features necessary to support the species. 
Special management considerations or protection may be required in 
Subunit 3b 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, prevent spills and protect groundwater 
during oil and gas development, and decrease 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 is occupied by Wright's marsh thistle and contains all of the 
physical or biological features necessary to support the species. Unit 
4 lies along Indian Service Route 10, north of Tularosa Creek, on land 
owned by the Mescalero Apache Tribe. We have excluded the entire Unit 4 
from this final critical habitat designation (see Exclusions, below).

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 is occupied by Wright's marsh 
thistle and contains all of the physical or biological features 
necessary to support the species. Unit 5 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 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. 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 is occupied by Wright's marsh thistle and contains all of the 
physical or biological features necessary to support the species. Unit 
6 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. We 
have excluded 0.23 ha (0.58 ac) of land in Unit 6 owned by the 
Mescalero Apache Tribe from this final critical habitat designation 
(see Exclusions, below). 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 and 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. 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. All subunits within the Karr/Haynes Canyon 
unit are occupied by Wright's marsh thistle and contain all of the 
physical or biological features necessary to support the species. 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 is occupied by Wright's marsh thistle and contains 
all of the physical or biological features necessary to support the 
species. Subunit 7a 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 and 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. 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 is occupied by Wright's 
marsh thistle and contains all of the physical or biological features 
necessary to support the species. Subunit 7b 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 and 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. As this 
property has the

[[Page 25230]]

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 is occupied by Wright's 
marsh thistle and contains all of the physical or biological features 
necessary to support the species. Subunit 7c 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 and 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. 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 is occupied by Wright's marsh thistle 
and contains all of the physical or biological features necessary to 
support the species. Subunit 7c 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, prevent 
spills and protect groundwater during oil and gas development, and 
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.

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 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 rule revising the 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 set forth requirements 
for 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 
if, subsequent to the previous consultation: (1) The amount or extent 
of taking specified in the incidental take statement is exceeded; (2) 
new information reveals effects of the action that may affect listed 
species or critical habitat in a manner or to an extent not previously 
considered; (3) the identified action is subsequently modified in a 
manner that causes an effect to the listed species or critical habitat 
that was not considered in the biological opinion; or (4) a new species 
is listed or critical habitat designated that may be affected by the 
identified action.
    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

[[Page 25231]]

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 section 
7(a)(2) of the Act by destroying or adversely modifying such habitat, 
or that may be affected by 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 completed INRMP within the critical habitat 
designation.

Consideration of Impacts Under 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 designated critical habitat based on 
economic impacts, impacts on national security, or any other relevant 
impacts. Exclusion decisions are governed by the regulations at 50 CFR 
424.19 and the Policy Regarding Implementation of Section 4(b)(2) of 
the Endangered Species Act (hereafter, the ``2016 Policy''; 81 FR 7226, 
February 11, 2016), both of which were developed jointly with the 
National Marine Fisheries Service (NMFS). We also refer to a 2008 
Department of the Interior Solicitor's opinion entitled ``The 
Secretary's Authority to Exclude Areas from a Critical Habitat 
Designation under Section 4(b)(2) of the Endangered Species Act'' (M-
37016). We explain each decision to exclude areas, as well as decisions 
not to exclude, to demonstrate that the decision is reasonable.
    Under section 4(b)(2) of the Act, we may exclude an area from 
designated critical habitat based on economic impacts, impacts on 
national security, or any other relevant impacts. In considering 
whether to exclude a particular area from the designation, we identify 
the benefits of including the area in the designation, identify the 
benefits of excluding the area from the designation, and evaluate 
whether the benefits of exclusion outweigh the benefits of inclusion. 
If the analysis indicates that the benefits of exclusion outweigh the 
benefits of inclusion, the Secretary may exercise discretion to exclude 
the area only if such exclusion would not result in the extinction of 
the species. In the following sections we describe the process we took 
to consider each category of impacts and our analyses of the relevant 
impacts if exclusions to critical habitat designation are appropriate. 
Table 5 below provides approximate areas (ha, ac) of lands that meet 
the definition of critical habitat but that we are excluding from this 
final critical habitat rule under section 4(b)(2) of the Act.

  Table 5--Areas Excluded From Critical Habitat Designation by Critical Habitat Unit for Wright's Marsh Thistle
----------------------------------------------------------------------------------------------------------------
              Unit/subunit                        Landowner                   Hectares (acres) excluded
----------------------------------------------------------------------------------------------------------------
Unit 4.................................  Mescalero Apache Tribe....  0.65 ha (1.6 ac).
Unit 6.................................  Mescalero Apache Tribe....  0.23 ha (0.58 ac).
                                                                    --------------------------------------------
    Total excluded.....................  ..........................  0.88 ha (2.18 ac).
----------------------------------------------------------------------------------------------------------------

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 
critical habitat units. 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 critical habitat 
designation is analyzed by comparing

[[Page 25232]]

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 section 4(b)(2) exclusion analysis.
    For this particular designation, we developed an incremental effect 
memorandum (IEM) considering the probable incremental economic impacts 
that may result from the 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 
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. If the critical habitat 
designation contains any unoccupied units, the screening analysis 
assesses whether those units are unoccupied because they require 
additional management or conservation efforts that may incur 
incremental economic impacts. This screening analysis, combined with 
the information contained in our IEM, is what we consider our economic 
analysis of the 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 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 
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. With 
the listing of Wright's marsh thistle, in areas where the species is 
present, Federal agencies are required to consult with the Service 
under section 7 of the Act on activities they fund, permit, or 
implement that may affect the thistle. With the species' critical 
habitat designation, consultations to avoid the destruction or adverse 
modification of critical habitat will be incorporated into the existing 
consultation process.
    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 critical habitat for Wright's 
marsh thistle is being designated concurrently with the species' 
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 
associated with the designation of critical habitat.
    The Service is designating 63.4 ha (156.8 ac) across five New 
Mexico counties as critical habitat for Wright's marsh thistle. The 
Service has divided the critical habitat into seven units, with some 
further divided into subunits. All seven units are occupied by 
reproducing populations of the thistle. We are not designating any 
unoccupied habitat. Approximately 30.6 percent of the designation is 
located on Federal lands and 19.9 percent is on State-owned lands. 
Approximately 15.6 percent of the lands are owned by the City of Santa 
Rosa, and approximately 33.9 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

[[Page 25233]]

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, which are 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 estimate 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 63.4 ha (156.8 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 economic analysis, 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.

Consideration of National Security Impacts

    Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or 
areas that pose potential national-security concerns (e.g., a DoD 
installation that is in the process of revising its INRMP for a newly 
listed species or a species previously not covered). If a particular 
area is not covered under section 4(a)(3)(B)(i), then national-security 
or homeland-security concerns are not a factor in the process of 
determining what areas meet the definition of ``critical habitat.'' 
However, the Service must still consider impacts on national security, 
including homeland security, on those lands or areas not covered by 
section 4(a)(3)(B)(i), because section 4(b)(2) requires the Service to 
consider those impacts whenever it designates critical habitat. 
Accordingly, if DoD, Department of Homeland Security (DHS), or another 
Federal agency has requested exclusion based on an assertion of 
national-security or homeland-security concerns, or we have otherwise 
identified national-security or homeland-security impacts from 
designating particular areas as critical habitat, we generally have 
reason to consider excluding those areas.
    However, we cannot automatically exclude requested areas. When DoD, 
DHS, or another Federal agency requests exclusion from critical habitat 
on the basis of national-security or homeland-security impacts, we must 
conduct an exclusion analysis if the Federal requester provides 
credible information, including a reasonably specific justification of 
an incremental impact on national security that would result from the 
designation of that specific area as critical habitat. That 
justification could include demonstration of probable impacts, such as 
impacts to ongoing border-security patrols and surveillance activities, 
or a delay in training or facility construction, as a result of 
compliance with section 7(a)(2) of the Act. If the agency requesting 
the exclusion does not provide us with a reasonably specific 
justification, we will contact the agency to recommend that it provide 
a specific justification or clarification of its concerns relative to 
the probable incremental impact that could result from the designation. 
If we conduct an exclusion analysis because the agency provides a 
reasonably specific justification or because we decide to exercise the 
discretion to conduct an exclusion analysis, we will defer to the 
expert judgment of DoD, DHS, or another Federal agency as to: (1) 
Whether activities on its lands or waters, or its activities on other 
lands or waters, have national-security or homeland-security 
implications; (2) the importance of those implications; and (3) the 
degree to which the cited implications would be adversely affected in 
the absence of an exclusion. In that circumstance, in conducting a 
discretionary section 4(b)(2) exclusion analysis, we will give great 
weight to national-security and homeland-security concerns in analyzing 
the benefits of exclusion.
    In preparing this final designation, neither DoD nor Department of 
Homeland Security identified any potential impacts on national security 
or homeland security; as such, we anticipate no impact on national 
security or homeland security. During the September 29, 2020, proposed 
rule's public comment period, we did not receive any additional 
information on the impacts of the proposed designation on national 
security or homeland security to determine whether any specific areas 
should be excluded from this final critical habitat designation under 
authority of section 4(b)(2) and our implementing regulations at 50 CFR 
424.19; therefore, we made no changes to the critical habitat 
designation as a result of this consideration.

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. Other relevant impacts may include, but are not limited to, 
impacts to Tribes, States, local governments, public health and safety, 
community interests, the environment (such as increased risk of 
wildfire or pest and invasive species management), Federal lands, and 
conservation plans, agreements, or partnerships. To identify other 
relevant impacts that may affect the exclusion analysis, 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

[[Page 25234]]

Tribal conservation plans and partnerships and consider the government-
to-government relationship of the United States with Tribal entities. 
We also consider any State, local, public-health, community-interest, 
environmental, or social impacts that might occur because of the 
designation.
Tribal Lands
    Several Executive Orders, Secretarial Orders, and policies guide 
our working relationship with Tribes. These guidance documents 
generally confirm our trust responsibilities to Tribes, recognize that 
Tribes have sovereign authority to control tribal lands, emphasize the 
importance of developing partnerships with tribal governments, and 
direct the Service to consult with Tribes on a government-to-government 
basis.
    A joint Secretarial Order that applies to both the Service and the 
National Marine Fisheries Service (NMFS), Secretarial Order 3206, 
American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, 
and the Endangered Species Act (June 5, 1997) (S.O. 3206), is the most 
comprehensive of the various guidance documents related to tribal 
relationships and Act implementation, and it provides the most detail 
directly relevant to the designation of critical habitat. In addition 
to the general direction discussed above, S.O. 3206 explicitly 
recognizes the right of Tribes to participate fully in the listing 
process, including designation of critical habitat. The Order also 
states: ``Critical habitat shall not be designated in such areas unless 
it is determined essential to conserve a listed species. In designating 
critical habitat, the Services shall evaluate and document the extent 
to which the conservation needs of the listed species can be achieved 
by limiting the designation to other lands.'' In light of this 
instruction, when we undertake a discretionary section 4(b)(2) 
exclusion analysis, we will always consider exclusions of tribal lands 
under section 4(b)(2) of the Act prior to finalizing a designation of 
critical habitat, and will give great weight to tribal concerns in 
analyzing the benefits of exclusion.
    However, S.O. 3206 does not preclude us from designating tribal 
lands or waters as critical habitat, nor does it state that tribal 
lands or waters cannot meet the Act's definition of ``critical 
habitat.'' We are directed by the Act to identify areas that meet the 
definition of ``critical habitat'' (i.e., areas occupied at the time of 
listing that contain the essential physical or biological features that 
may require special management or protection and unoccupied areas that 
are essential to the conservation of a species), without regard to 
landownership. While S.O. 3206 provides important direction, it 
expressly states that it does not modify the Secretaries' statutory 
authority.
Unit 4 (Tularosa Creek) and Unit 6 (Silver Springs)--Mescalero Apache, 
NM
    On Mescalero Apache tribal lands, we proposed 0.65 ha (1.6 ac) of 
critical habitat in Unit 4, as well as 0.23 ha (0.58 ac) of critical 
habitat in Unit 6, all in Otero County, NM. The sites are considered 
occupied at the time of listing and meet the definition of critical 
habitat. However, the Mescalero Apache Tribe is recognized as a 
sovereign nation and as such is the appropriate entity to manage 
natural resources on Mescalero Apache tribal land. We have a productive 
working relationship with the Mescalero Apache Tribe and coordinated 
with them during the critical habitat designation process.
Benefits of Inclusion--Mescalero Apache Tribe
    As discussed above under Effects of Critical Habitat Designation 
Section 7 Consultation, Federal agencies, in consultation with the 
Service, must ensure that their actions are not likely to jeopardize 
the continued existence of any listed species or result in the 
destruction or adverse modification of any designated critical habitat 
of such species. The difference in the outcomes of the jeopardy 
analysis and the adverse modification analysis represents the 
regulatory benefit and costs of critical habitat. A critical habitat 
designation requires Federal agencies to consult on whether their 
activity would destroy or adversely modify critical habitat to the 
point where recovery could not be achieved. Designation of critical 
habitat on the Mescalero Apache Tribe land of proposed Unit 4 could 
potentially benefit Wright's marsh thistle because that area provides 
habitat for the species, encompasses features essential to conservation 
of the species, and is occupied by the species. However, formal section 
7 consultation within the proposed critical habitat area remains a rare 
occurrence, due to a general lack of Federal actions requiring 
consultations, and we do not expect this trend to change in the future. 
The lack of section 7 consultations results in very limited regulatory 
benefits for the designation of critical habitat for the Wright's marsh 
thistle in this portion of proposed Unit 4. Therefore, we would not 
expect any additional conservation benefits through the section 7 
process from the inclusion of Mescalero Apache tribal land in the final 
critical habitat designation.
    A possible benefit is that the designation of critical habitat can 
serve to educate the landowner and public regarding the potential 
conservation value of an area, and this may focus and contribute to 
conservation efforts by other parties by clearly delineating areas of 
high conservation value for certain species. Any information about 
Wright's marsh thistle and its habitat that reaches a wide audience, 
including other parties engaged in conservation activities, would be 
considered valuable.
    The designation of critical habitat may also be beneficial by 
affecting the implementation of Federal laws, such as the Clean Water 
Act. These laws require analysis of the potential for proposed projects 
to significantly affect the environment. Critical habitat may signal 
the presence of sensitive habitat that could otherwise be missed in the 
review process for these other environmental laws.
    Finally, there is the possible benefit that additional funding 
could be generated for habitat improvement by an area being designated 
as critical habitat. Some funding sources may rank a project higher if 
the area is designated as critical habitat. Tribes often seek 
additional sources of funding in order to conduct wildlife-related 
conservation activities. Therefore, having an area designated as 
critical habitat could improve the chances of receiving funding for 
Wright's marsh thistle habitat-related projects.
Benefits of Exclusion--Mescalero Apache Tribe
    The benefits of excluding these tribal lands from designated 
critical habitat are significant. We have determined that the primary 
benefits that would be realized by foregoing the designation of 
critical habitat on this area include: (1) Our deference to the Tribe 
as a sovereign nation to develop and implement conservation and natural 
resource management plans for their lands and resources, which may 
include benefits to Wright's marsh thistle and its habitat that might 
not otherwise occur; (2) the continuance and strengthening of our 
effective working relationships with the Tribe to promote conservation 
of Wright's marsh and its habitat, as well as other federally listed 
species; and (3) promoting continued meaningful collaboration and 
cooperation with the Tribe in working toward recovering native plant 
communities, including Wright's marsh thistle habitat. We have found 
that fish, wildlife, and other natural resources on Tribal lands are 
better managed under Tribal authorities,

[[Page 25235]]

policies, and programs than through Federal regulations wherever 
possible and practicable. Additionally, this critical habitat 
designation may compromise our working relationship with the Tribe, 
which is essential to achieving our mutual goals of managing for 
healthy ecosystems upon which the viability of endangered and 
threatened species populations depend.
    We have determined that the Mescalero Apache Tribe should be the 
governmental entity to manage and promote the conservation of the 
Wright's marsh thistle on their land as indicated in Secretarial Order 
3206; Executive Order 13175; and the relevant provision of the 
Departmental Manual of the Department of the Interior (512 DM 2). We 
have determined that our working relationship with the Mescalero Apache 
Tribe would be better maintained if they are excluded from the 
designation of critical habitat for Wright's marsh thistle. We view 
this as a substantial benefit.
Benefits of Exclusion Outweigh the Benefits of Inclusion--Mescalero 
Apache Tribe
    The benefits of excluding this area from critical habitat include 
deference to the Tribe as a sovereign nation to manage its own lands, 
continuing and strengthening our effective working relationships with 
the Tribe to promote conservation of Wright's marsh and its habitat, 
and continuing meaningful collaboration and cooperation in working 
toward recovering native plant communities, including Wright's marsh 
thistle habitat.
    The benefits of including Mescalero Apache Tribe in the critical 
habitat designation are limited to the incremental benefits gained 
through the regulatory requirement to consult under section 7 and 
consideration of the need to avoid adverse modification of critical 
habitat, agency and educational awareness, potential additional grant 
funding, and the implementation of other law and regulations. However, 
due to the rarity of Federal actions resulting in formal section 7 
consultations within the proposed critical habitat area, the benefits 
of a critical habitat designation are minimal. The Service's working 
relationship with the Tribe will be better maintained if these sites in 
Unit 4 and Unit 6 located on Mescalero Apache tribal lands are excluded 
from the designation. We view this as a substantial benefit since we 
are committed to cooperative relationships with Tribes for the mutual 
benefit of endangered and threatened species, including Wright's marsh 
thistle. For these reasons, we have determined that designation of 
critical habitat at these sites would have few, if any, additional 
benefits beyond those that will result from the presence of the 
species.
    In summary, the benefits of including Mescalero Apache tribal lands 
in critical habitat are low and are limited to insignificant 
educational benefits. Educational opportunities would predominately 
benefit members of the Tribe rather than the general public. Also, for 
at least two subunits, the areas in question are located on Tribal 
lands which may not be accessible by the general public. They may also 
be inaccessible to Tribal members if the species is located on the 
private property of Tribal members. However, the ability of the Tribe 
to manage natural resources on their land without the perception of 
Federal Government intrusion, is a significant benefit. This philosophy 
is also consistent with our published policies on Native American 
natural resource management. The exclusion of this area will likely 
also provide additional benefits to the species that would not 
otherwise be available such as ensuring continued cooperative working 
relationships with the Mescalero Apache Tribe. We find that the 
benefits of excluding this area from critical habitat designation 
outweigh the benefits of including this area.
Exclusion Will Not Result in Extinction of the Species--Mescalero 
Apache Tribe
    We have determined that exclusion of Mescalero Apache tribal lands 
will not result in extinction of the species. As discussed above under 
Effects of Critical Habitat Designation Section 7 Consultation, if a 
Federal action or permitting occurs, the known presence of Wright's 
marsh thistle would require evaluation under the jeopardy standard of 
section 7 of the Act, even absent the designation of critical habitat, 
and thus will protect the species against extinction. Furthermore, the 
Mescalero Apache Tribe is committed to protecting and managing 
Mescalero Apache tribal lands and species found on those lands 
according to their tribal and cultural management plans and natural 
resource management objectives. In short, the Mescalero Apache Tribe is 
committed to greater conservation measures on their land than would be 
available through the designation of critical habitat. Additionally, 
the areas we are excluding, 0.88 ha (2.18 ac), accounted for less than 
1 percent of areas we are designating as critical habitat. Accordingly, 
we have determined that all 0.65 ha (1.6 ac) of critical habitat in 
Unit 4, as well as 0.23 ha (0.58 ac) of critical habitat in Unit 6, of 
Mescalero Apache tribal lands are excluded under subsection 4(b)(2) of 
the Act because the benefits of exclusion outweigh the benefits of 
inclusion and will not cause the extinction of the species.

Exclusions

    After analyzing these potential impacts, we have determined that 
all 0.65 ha (1.6 ac) of critical habitat in Unit 4, as well as 0.23 ha 
(0.58 ac) of critical habitat in Unit 6, of Mescalero Apache tribal 
lands are excluded under subsection 4(b)(2) of the Act in deference to 
the Tribe, as a sovereign nation, to manage its own lands. During the 
September 29, 2020, proposed rule's public comment period, we did not 
receive any additional information regarding other relevant impacts to 
determine whether any other 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. Therefore, we are 
excluding a total of 0.88 ha (2.18 ac) of Mescalero Apache tribal land 
from the designation, including all of Unit 4 (0.65 ha (1.6 ac)), as 
well as 0.23 ha (0.58 ac) of critical habitat in Unit 6.

Required Determinations

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 determined that this rule is not 
significant.
    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

[[Page 25236]]

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.
    Under the RFA, as amended, and as understood in light of recent 
court decisions, Federal agencies are required to evaluate the 
potential incremental impacts of rulemaking on those entities directly 
regulated by the rulemaking itself; in other words, the RFA does not 
require agencies 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 directly 
regulated by this critical habitat designation. The RFA does not 
require evaluation of the potential impacts to entities not directly 
regulated. Moreover, Federal agencies are not small entities. 
Therefore, because no small entities will be directly regulated by this 
rulemaking, the Service certifies that this critical habitat 
designation will not have a significant economic impact on a 
substantial number of small entities.
    In summary, we have considered whether designation will 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 the final critical habitat designation will not have a 
significant economic impact on a substantial number of small business 
entities. Therefore, a regulatory flexibility analysis is not required.

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. In our economic analysis, we did not find that the 
designation of 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 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 will 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 does not apply, nor does 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We have determined that this rule will not significantly or 
uniquely affect small governments because it would not produce a 
Federal mandate of $100 million or greater in any year; that is, it

[[Page 25237]]

is not a ``significant regulatory action'' under the Unfunded Mandates 
Reform Act. The designation of critical habitat imposes no obligations 
on State or local governments. By definition, Federal agencies are not 
considered small entities, although the activities they fund or permit 
may be proposed or carried out by small entities. Consequently, we have 
determined that the critical habitat designation would not 
significantly or uniquely affect small government entities. As such, a 
Small Government Agency Plan is not required. We did notify the City of 
Santa Rosa when we proposed to designate critical habitat for the 
Wright's marsh thistle, and we invited their comments on the proposed 
critical habitat designation with regard to any potential effects. We 
did not receive any comments from the City of Santa Rosa; therefore, we 
made no changes to this rule.

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 it concludes that this designation of critical habitat for Wright's 
marsh thistle will not pose significant takings implications for lands 
within or affected by the designation.

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this 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 final 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 will 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. However, 
it may assist State and local governments in long-range planning 
because they no longer have to wait for case-by-case section 7 
consultations to 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) will 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 this 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 are 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 on 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. During the public comment period we 
provided a draft Environmental Assessment and invited the public to 
comment on the extent to which this rule 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 then finalized the 
Environmental Assessment and determined that the designation of 
critical habitat for Wright's marsh thistle does not constitute a major 
Federal action significantly affecting the quality of the human 
environment under the meaning of Section 102(2)(c) of the NEPA (1969, 
as amended). Therefore, the Service made a Finding of No Significant 
Impact as allowed by NEPA regulation and supported by Council on 
Environmental Quality guidance.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations

[[Page 25238]]

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.
    The Mescalero Apache Tribe is the main Tribe whose lands and trust 
resources may be affected by this rule. 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, we engaged in 
conversations with the Tribe about the final designation to the extent 
possible without disclosing pre-decisional information via requests for 
additional information in September 2016 and January 2018, and provided 
notice of the publication of the 2020 proposed rule. There may be some 
other Tribes with trust resources in the area, but we have no specific 
documentation of this. Using the criteria described above under 
Criteria Used To Identify Critical Habitat, we determined that 0.88 ha 
(2.18 ac) of Mescalero Apache lands met the definition of critical 
habitat. After considering impacts of the critical habitat designation 
under section 4(b)(2) of the Act, we are excluding the 0.88 ha (2.18 
ac) of Mescalero Apache lands from the final critical habitat 
designation.

References Cited

    A complete list of references cited in this final 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).

Authors

    The primary authors of this final 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.

Regulation Promulgation

    Accordingly, we 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 in paragraph (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 follows:


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                              Listing citations
         Scientific name              Common name          Where listed          Status         and applicable
                                                                                                    rules
----------------------------------------------------------------------------------------------------------------
Flowering Plants
 
                                                  * * * * * * *
Cirsium wrightii................  Wright's marsh       Wherever found.....               T   88 FR [INSERT
                                   thistle.                                                   FEDERAL REGISTER
                                                                                              PAGE WHERE THE
                                                                                              DOCUMENT BEGINS],
                                                                                              4/25/2023; 50 CFR
                                                                                              17.73(c); \4d\ 50
                                                                                              CFR 17.96(a).\CH\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


0
3. Amend Sec.  17.73 by adding paragraph (c) to read as follows:


Sec.  17.73  Special rules--flowering plants.

* * * * *
    (c) Cirsium wrightii (Wright's marsh thistle).
    (1) Prohibitions. The following prohibitions that apply to 
endangered plants also apply to the Wright's marsh thistle. Except as 
provided under paragraph (c)(2) of this section, it is unlawful for any 
person subject to the jurisdiction of the United States to commit, to 
attempt to commit, to solicit another to commit, or cause to be 
committed, any of the following acts in regard to this species:
    (i) Remove and reduce to possession the species 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 (c)(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.
* * * * *

0
4. Amend Sec.  17.96 in paragraph (a) by adding an entry for ``Family 
Asteraceae: Cirsium wrightii (Wright's marsh thistle)'' in alphabetical 
order 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.

[[Page 25239]]

    (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 humanmade 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 
May 25, 2023.
    (4) Data layers defining map units were created using the latest 
imagery available through Esri (https://www.esri.com/en-us/home). The 
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/office/new-mexico-ecological-services, 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) Index map follows:
Figure 1 to Family Asteraceae: Cirsium wrightii (Wright's marsh 
thistle) paragraph (5)
BILLING CODE 4333-15-P

[[Page 25240]]

[GRAPHIC] [TIFF OMITTED] TR25AP23.000

    (6) Unit 1: Santa Rosa, Guadalupe County, New Mexico.
    (i) 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:

Figure 2 to Family Asteraceae: Cirsium wrightii (Wright's marsh 
thistle) paragraph (6)(ii)

[[Page 25241]]

[GRAPHIC] [TIFF OMITTED] TR25AP23.001

Figure 3 to Family Asteraceae: Cirsium wrightii (Wright's marsh 
thistle) paragraph (6)(ii)

[[Page 25242]]

[GRAPHIC] [TIFF OMITTED] TR25AP23.002

Figure 4 to Family Asteraceae: Cirsium wrightii (Wright's marsh 
thistle) paragraph (6)(ii)

[[Page 25243]]

[GRAPHIC] [TIFF OMITTED] TR25AP23.003

    (7) Unit 2: Alamosa Springs, Socorro County, New Mexico.
    (i) 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:

Figure 5 to Family Asteraceae: Cirsium wrightii (Wright's marsh 
thistle) paragraph (7)(ii)

[[Page 25244]]

[GRAPHIC] [TIFF OMITTED] TR25AP23.004

    (8) Unit 3: Bitter Lake, Chaves County, New Mexico.
    (i) 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:

Figure 6 to Family Asteraceae: Cirsium wrightii (Wright's marsh 
thistle) paragraph (8)(ii)

[[Page 25245]]

[GRAPHIC] [TIFF OMITTED] TR25AP23.005

    (9) Unit 4 has been excluded from this critical habitat 
designation.
    (10) Unit 5: La Luz Canyon, Otero County, New Mexico.
    (i) 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:

Figure 7 to Family Asteraceae: Cirsium wrightii (Wright's marsh 
thistle) paragraph (10)(ii)

[[Page 25246]]

[GRAPHIC] [TIFF OMITTED] TR25AP23.006

    (11) Unit 6: Silver Springs, Otero County, New Mexico.
    (i) Unit 6 consists of 0.38 ha (0.95 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 6 follows:

Figure 8 to Family Asteraceae: Cirsium wrightii (Wright's marsh 
thistle) paragraph (11)(ii)

[[Page 25247]]

[GRAPHIC] [TIFF OMITTED] TR25AP23.007

    (12) Unit 7: Karr/Haynes Canyon, Otero County, New Mexico.
    (i) 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:

Figure 9 to Family Asteraceae: Cirsium wrightii (Wright's marsh 
thistle) paragraph (12)(ii)

[[Page 25248]]

[GRAPHIC] [TIFF OMITTED] TR25AP23.008

    (13) Unit 8: Blue Springs, Eddy County, New Mexico.
    (i) 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:

Figure 10 to Family Asteraceae: Cirsium wrightii (Wright's marsh 
thistle) paragraph (13)(ii)

[[Page 25249]]

[GRAPHIC] [TIFF OMITTED] TR25AP23.009

* * * * *

Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-08565 Filed 4-24-23; 8:45 am]
BILLING CODE 4333-15-C