Proposed Rule2021-24343
Endangered and Threatened Wildlife and Plants; Threatened Species Status With a Section 4(d) Rule for Bracted Twistflower and Designation of Critical Habitat
Primary source
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Published
November 10, 2021
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), announce a 12-month finding on a petition to list the bracted twistflower (Streptanthus bracteatus), a plant species from Texas, as a threatened species and designate critical habitat under the Endangered Species Act of 1973, as amended (Act). After a review of the best available scientific and commercial information, we find that listing the species is warranted. Accordingly, we propose to list bracted twistflower as a threatened species with a rule issued under section 4(d) of the Act (a "4(d) rule"). We also propose to designate critical habitat for the bracted twistflower under the Act. In total, approximately 1,606 acres (650 hectares) in Uvalde, Medina, Bexar, and Travis Counties in Texas fall within the boundaries of the proposed critical habitat designation. In addition, we announce the availability of a draft economic analysis (DEA) of the proposed designation of critical habitat for the bracted twistflower. If we finalize this rule as proposed, it would extend the Act's protections to this species and its critical habitat.
Full Text
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[Federal Register Volume 86, Number 215 (Wednesday, November 10, 2021)]
[Proposed Rules]
[Pages 62668-62705]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-24343]
[[Page 62667]]
Vol. 86
Wednesday,
No. 215
November 10, 2021
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; Threatened Species
Status With a Section 4(d) Rule for Bracted Twistflower and Designation
of Critical Habitat; Proposed Rule
Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 /
Proposed Rules
[[Page 62668]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2021-0013; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BE44
Endangered and Threatened Wildlife and Plants; Threatened Species
Status With a Section 4(d) Rule for Bracted Twistflower and Designation
of Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a
12-month finding on a petition to list the bracted twistflower
(Streptanthus bracteatus), a plant species from Texas, as a threatened
species and designate critical habitat under the Endangered Species Act
of 1973, as amended (Act). After a review of the best available
scientific and commercial information, we find that listing the species
is warranted. Accordingly, we propose to list bracted twistflower as a
threatened species with a rule issued under section 4(d) of the Act (a
``4(d) rule''). We also propose to designate critical habitat for the
bracted twistflower under the Act. In total, approximately 1,606 acres
(650 hectares) in Uvalde, Medina, Bexar, and Travis Counties in Texas
fall within the boundaries of the proposed critical habitat
designation. In addition, we announce the availability of a draft
economic analysis (DEA) of the proposed designation of critical habitat
for the bracted twistflower. If we finalize this rule as proposed, it
would extend the Act's protections to this species and its critical
habitat.
DATES: We will accept comments received or postmarked on or before
January 10, 2022. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. Eastern Time on the closing date. We must receive requests for a
public hearing, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by December 27, 2021.
ADDRESSES:
Written comments: You may submit comments by one of the following
methods:
(1) Electronically: Go to the Federal eRulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>. In the Search box, enter the docket number or RIN
for this rulemaking (presented above in the document headings). 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. On the resulting page, in the Search panel on the
left side of the screen, under the Document Type heading, check the
Proposed Rule box to locate this document. You may submit a comment by
clicking on ``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R2-ES-2021-0013, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on <a href="http://www.regulations.gov">http://www.regulations.gov</a>. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: For the critical habitat
designation, the coordinates or plot points or both from which the maps
are generated are included in the decision file and are available at
<a href="http://www.regulations.gov">http://www.regulations.gov</a> under Docket No. FWS-R2-ES-2021-0013, and at
the Austin Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT). Any additional tools or supporting information
that we may develop for the critical habitat designation will also be
available at the Service website and Field Office set out above, and
may also be included in the preamble and/or at <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Adam Zerrenner, Field Supervisor, U.S.
Fish and Wildlife Service, Austin Ecological Services Field Office,
10711 Burnet Road, Suite 200, Austin, TX 78758; telephone 512-490-0057.
Persons who use a telecommunications device for the deaf (TDD) may call
the Federal Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, if 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. We propose to list the bracted twistflower
as a threatened species with a species-specific 4(d) rule under the
Act. We also propose to designate critical habitat for the species.
The basis for our action. Under section 4(a) of the Act, we may
determine that a species is an endangered or threatened species because
of any of the following 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 the primary
threats to the bracted twistflower are loss of habitat due to urban and
residential development, changes in structure and composition of
vegetation and wildfire frequency, and herbivory by dense populations
of white-tailed deer (Odocoileus virginianus) and introduced ungulates.
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary) to designate critical habitat concurrent with listing to
the maximum extent prudent and determinable. Section 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.
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other concerned governmental agencies,
Native
[[Page 62669]]
American tribes, the scientific community, industry, or any other
interested parties concerning this proposed rule.
We particularly seek comments concerning:
(1) The species' biology, range, and population trends, including:
(a) Biological or ecological requirements of the species, including
habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns;
(d) Historical and current population levels, and current and
projected trends; and
(e) Past and ongoing conservation measures for the species, its
habitat, or both.
(2) Factors that may affect the continued existence of the species,
which may include habitat modification or destruction, overutilization,
disease, predation, the inadequacy of existing regulatory mechanisms,
or other natural or manmade factors.
(3) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species and existing regulations
that may be addressing those threats.
(4) Additional information concerning the historical and current
status, range, distribution, and population size of this species,
including the locations of any additional populations of this species.
(5) Information on regulations that are necessary and advisable to
provide for the conservation of the bracted twistflower and that the
Service can consider in developing a 4(d) rule for the species. In
particular, information concerning the extent to which we should
include any of the section 9 prohibitions in the 4(d) rule or whether
we should consider any additional exceptions from the prohibitions in
the 4(d) rule.
(6) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including information to inform the following factors that the
regulations identify as reasons why designation of critical habitat may
be not prudent:
(a) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(b) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(c) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States; or
(d) No areas meet the definition of critical habitat.
(7) Specific information on:
(a) The amount and distribution of bracted twistflower habitat;
(b) What areas, that were occupied at the time of listing and that
contain the physical or biological features essential to the
conservation of the species, should be included in the designation and
why;
(c) Any additional areas occurring within the range of the species
[i.e., Travis, Medina, Uvalde, Bexar, Hays Counties] that should be
included in the designation because they (1) are occupied at the time
of listing and contain the physical or biological features that are
essential to the conservation of the species and that may require
special management considerations, or (2) are unoccupied at the time of
listing and are essential for the conservation of the species;
(d) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change; and
(e) What areas not occupied at the time of listing are essential
for the conservation of the species. We particularly seek comments:
(i) Regarding whether occupied areas are adequate for the
conservation of the species;
(ii) Providing specific information regarding whether or not
unoccupied areas would, with reasonable certainty, contribute to the
conservation of the species and contain at least one physical or
biological feature essential to the conservation of the species.
(iii) Explaining whether or not unoccupied areas fall within the
definition of ``habitat'' at 50 CFR 424.02 and why.
(8) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(9) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation, and the related benefits of including or excluding
specific areas.
(10) Information on the extent to which the description of probable
economic impacts in the draft economic analysis is a reasonable
estimate of the likely economic impacts.
(11) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act. If you think we should exclude any
additional areas, please provide credible information regarding the
existence of a meaningful economic or other relevant impact supporting
a benefit of exclusion.
(12) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) of the Act directs that
determinations as to whether any species is an endangered or a
threatened species must be made ``solely on the basis of the best
scientific and commercial data available.''
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via <a href="http://www.regulations.gov">http://www.regulations.gov</a>, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Because we will consider all comments and information we receive
during the comment period, our final determinations may differ from
this proposal. Based on the new information
[[Page 62670]]
we receive (and any comments on that new information), we may conclude
that the species is endangered instead of threatened, or we may
conclude that the species does not warrant listing as either an
endangered species or a threatened species. For critical habitat, our
final designation may not include all areas proposed, may include some
additional areas that meet the definition of critical habitat, and may
exclude some areas if we find the benefits of exclusion outweigh the
benefits of inclusion. In addition, we may change the parameters of the
prohibitions or the exceptions to those prohibitions in the 4(d) rule
if we conclude it is appropriate in light of comments and new
information received. For example, we may expand the prohibitions to
include prohibiting additional activities if we conclude that those
additional activities are not compatible with conservation of the
species. Conversely, we may establish additional exceptions to the
prohibitions in the final rule if we conclude that the activities would
facilitate or are compatible with the conservation and recovery of the
species.
Public Hearing
Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and local newspapers at least 15 days before the
hearing. For the immediate future, we will provide these public
hearings using webinars that will be announced on the Service's
website, in addition to the Federal Register. The use of these virtual
public hearings is consistent with our regulations at 50 CFR
424.16(c)(3).
Previous Federal Actions
In 1975, the Smithsonian Institution presented a report to Congress
describing over 3,000 vascular plants considered endangered,
threatened, or extinct in the United States, including the bracted
twistflower. The Service published a notice on July 1, 1975 (40 FR
27824), in which we announced that this report had been accepted as a
petition under the terms of the Act, and that the taxa named in the
report and notice were being reviewed for possible inclusion in the
List of Endangered and Threatened Plants.
On December 15, 1980, we classified the bracted twistflower as a
Category 2 candidate for listing (45 FR 82480). We defined Category 2
candidates as taxa for which information in the Service's possession
indicated the probable appropriateness of listing as endangered or
threatened, but for which sufficient information was not available to
biologically support a proposed rule at the time. The species remained
so designated in subsequent candidate notices of review (CNORs) (50 FR
39526, September 27, 1985; 55 FR 6184, February 21, 1990; 58 FR 51144,
September 30, 1993). In the February 28, 1996, CNOR (61 FR 7596), we
discontinued the designation of Category 2 species as candidates;
therefore, the bracted twistflower was no longer a candidate species.
On October 26, 2011, we added bracted twistflower to the candidate
list (76 FR 66370). Candidates are those fish, wildlife, and plants for
which we have on file sufficient information on biological
vulnerability and threats to support preparation of a listing proposal,
but for which preparation and publication of a proposal is precluded by
higher priority listing actions. Bracted twistflower was included in
all subsequent annual CNORs with a listing priority number of 8, which
reflects a species with threats that are ongoing and imminent (77 FR
69994, November 21, 2012; 78 FR 70104, November 22, 2013; 79 FR 72450,
December 5, 2014; 80 FR 80584, December 24, 2015; 81 FR 87246, December
2, 2016; 84 FR 54732, October 10, 2019; 85 FR 73164, November 16,
2020).
On August 5, 2014, we received a petition to list the bracted
twistflower. Because the species was already on our candidate list, we
took no additional action on the petition.
Supporting Documents
A species status assessment (SSA) team prepared an SSA report for
the bracted twistflower. 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 20, 2016, memorandum updating and clarifying the role of
peer review of listing actions under the Act, we sought the expert
opinions of six appropriate specialists regarding the SSA. We received
one response. We also sent the SSA report to four partners, including
scientists with expertise in local plant species, for review. We
received review from four partners (Texas Parks and Wildlife
Department, the City of Austin, the City of San Antonio, and Joint Base
San Antonio).
I. Proposed Listing Determination
Background
Bracted twistflower is an annual herbaceous plant in the mustard
family (Brassicaceae) that occurs only along the southeastern edge of
the Edwards Plateau of central Texas. There are currently 35 described
species of Streptanthus. Bracted twistflower can be distinguished from
most other members of this genus because the leaves borne on the flower
stalk lack stems and all flower stems have a small modified leaf,
called a bract, at their bases.
Bracted twistflower habitats occur near the boundary between the
Edwards or Devils River limestone formations and the Glen Rose
limestone formation. Individual plants commonly occur near or under a
canopy of Ashe juniper (Juniperus ashei), Texas live oak (Quercus
fusiformis), Texas mountain laurel (Sophora secundiflora), Texas red
oak (Quercus buckleyi), or other trees.
The seeds germinate in response to fall and winter rainfall,
forming basal rosettes, and the flower stalks emerge the following
spring bearing showy, lavender-purple flowers. The seed capsules remain
attached to the stalks during the summer as they mature and dehisce,
releasing the seeds to be dispersed by gravity. The foliage withers as
the fruits mature, and the plants die during the heat of summer. This
species is primarily an outcrossing species; the leafcutter bee
Megachile comata (family: Megachilidae) is known to be an effective
pollinator. Because the seeds of bracted twistflower do not disperse
far, gene flow for this species occurs mainly through pollination.
Since 1989, populations of the bracted twistflower have been
documented at 17 naturally occurring element occurrences (EOs) in five
counties, as well as one experimental trial in Travis County (see Table
1, below). We have adopted the EO standard to maintain consistency with
the Texas Parks and Wildlife Department's Natural Diversity Database
(TXNDD) and because the EOs used in the TXNDD are practical
approximations of populations, based on the best available scientific
information. Each EO may consist of one to many Source Features, which
are specific locations where one or more
[[Page 62671]]
individuals have been observed one or more times.
Bracted twistflower is an annual plant, and the numbers of
individuals that germinate at the Source Features of each EO vary
widely from year to year in response to weather patterns or other
stimuli. Thus, the numbers observed in any single year are not useful
measures of population size because they do not reveal the numbers of
live, dormant seeds that persist in the soil seed reserve. The SSA
report (Service 2021, appendix A) describes the method we used to
estimate the potential population sizes of EOs, which we define as the
largest numbers of individuals that have been observed at each Source
Feature of each EO. We then used aerial imagery to determine whether
the habitat of any Source Features had been destroyed by construction
of roads, buildings, or other disturbance, and we calculated the
estimated remaining potential population at each EO. For a complete
descriptions of the analysis used, see the SSA report. Table 1 lists
the total potential populations of each EO and the proportions of each
that were reported from Source Features that were destroyed, partially
destroyed, or are still intact. In summary, within the naturally-
occurring EOs, we determined that habitats and potential populations
are completely intact at 11 EOs, partially destroyed at four EOs, and
completely destroyed at two EOs. However, even where habitats are
intact, populations may decline due to ungulate herbivory, juniper
competition, or other factors. A thorough review of the taxonomy, life
history, and ecology of the bracted twistflower is presented in the SSA
report (Service 2021, entire).
Table 1--Bracted Twistflower Element Occurrences (EOs), Potential Population Sizes (Numbers of Individuals), and
Habitat Statuses of Source Features
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Total Potential population by habitat status
potential ------------------------------------------------ Percent
EO--site name; owner; population of remaining
representation area \1\ all source Intact Destroyed Partially intact
features destroyed
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2--Cat Mountain (Far West); 866 123 112 631 14.2
Private; NE....................
7--Ullrich Water Treatment Plant 493 493 0 0 100.0
(Bee Creek Preserve); City of
Austin; NE.....................
9--Mt. Bonnell/Mt. Bonnell City 919 237 433 249 25.8
Park; Private/City of Austin;
NE.............................
17--Barton Creek Wilderness 1,677 1,677 0 0 100.0
Park; City of Austin (Balcones
Canyonlands Preserve (BCP)); NE
21--Mesa-FM 2222; Private; NE... 330 0 70 260 0.0
26--Bright Leaf State Natural 10 10 0 0 100.0
Area (SNA); Austin Community
Foundation; NE.................
32--Rough Hollow Ranch; Private; 40 0 40 0 0.0
NE.............................
33 \2\--Vireo Preserve 120 .............. .............. .............. ..............
(experimental reintroduction);
City of Austin (BCP); NE.......
35--Valburn Drive/Bull Creek 1,041 343 644 54 32.9
District Park; Private/City of
Austin; NE.....................
36--Gus Fruh/Barton Creek 29 29 0 0 100.0
Greenbelt; City of Austin; NE..
xx \3\--Falls Ranch; Private; NE 6 6 0 0 100.0
8--E Medina Lake; Texas 2,260 477 481 1,302 21.1
Department of Transportation,
Medina County, and private
rights-of-way; C...............
18--Medina Lake; Private; C..... 1,254 1,254 0 0 100.0
23--Eisenhower City Park/Camp 190 190 0 0 100.0
Bullis Military Training
Reservation; City of San
Antonio/Dept. of Defense; C....
25--Laurel Canyon (Bear Bluff); 2,000 2,000 0 0 100.0
Private Limited Partnership
with City of San Antonio
conservation easement; C.......
31--Rancho Diana (undeveloped 958 958 0 0 100.0
natural area); City of San
Antonio; C.....................
10--Garner State Park; Texas 686 686 0 0 100.0
Parks and Wildlife Department;
W..............................
24--Upper Long Canyon; Private; 5 5 0 0 100.0
W..............................
----------------------------------------------------------------------------------------------------------------
\1\ Described under Species Needs, below. NE = northeast; C = central; W = west.
\2\ This experimental reintroduction is not one of the 17 naturally-occurring EOs.
\3\ This newly-discovered site does not yet have in EO ID or EO number in the TXNDD.
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
[[Page 62672]]
conditions, we look for those that may have a negative effect on
individuals of the species, as well as other actions or conditions that
may ameliorate any negative effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the expected response by the species,
and the effects of the threats--in light of those actions and
conditions that will ameliorate the threats--on an individual,
population, and species level. We evaluate each threat and its expected
effects on the species, then analyze the cumulative effect of all of
the threats on the species as a whole. We also consider the cumulative
effect of the threats in light of those actions and conditions that
will have positive effects on the species--such as any existing
regulatory mechanisms or conservation efforts. The Secretary determines
whether the species meets the definition of an ``endangered species''
or a ``threatened species'' only after conducting this cumulative
analysis and describing the expected effect on the species now and in
the foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable 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, and other demographic
factors.
Analytical Framework
The SSA report (Service 2021, entire) 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 proposed for
listing as an endangered or threatened species under the Act. However,
it does 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 Docket No. FWS-R2-ES-2021-0013 on
<a href="http://www.regulations.gov">http://www.regulations.gov</a>.
To assess bracted twistflower 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 factors that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability. We analyze these factors
both individually and cumulatively to determine the current condition
of the species and project the future condition of the species under
several plausible future scenarios.
Species Needs
Habitat Availability and Protection From Herbivory
Bracted twistflower habitat occurs on karstic, porous limestones
near the boundary of the Devils River or Edwards formations and Glen
Rose formations in central Texas. These juniper-oak woodlands and
shrublands experience hot, often dry summers and mild winters with
bimodal (spring and fall) precipitation patterns. Optimal microsites
for the bracted twistflower have less than 50 percent cover of woody
plant canopy with the most robust plants growing in full sun (Fowler
2010, pp. 10-12; Leonard 2010, pp. 30-32; Ramsey 2010, pp. 10-13, 20;
Leonard and Van Auken 2013, pp. 276-285). However, in areas with dense
populations of white-tailed deer and other herbivores, few individuals
survive except where they are protected from herbivory by a cover of
dense, spiny understory vegetation (McNeal 1989, p. 17; Damude and
Poole 1990, pp. 29 -30; Poole et al. 2007, p. 470; Leonard 2010, p.
63).
Reproduction
Bracted twistflower is an annual species sustained through its
reserve of
[[Page 62673]]
seeds in the soil. Thus, resilient populations must produce more viable
seeds than they lose through germination, herbivory, and loss of
viability. Individuals that have begun flowering are vulnerable to
herbivory by white-tailed deer, squirrels, and other herbivores,
including introduced ungulates; although robust plants may generate a
new flower stalk after the first stalk is removed, the loss of
resources likely reduces reproductive output and a decrease in
resiliency.
Bracted twistflower reproduces primarily by outcrossing between
individuals that are not closely related; self-pollination produces
only small amounts of seeds. Fertilization requires that two or more
sexually compatible individuals are located within the forage range of
native bee pollinators. The longevity of seed viability has not been
determined, although at least some seeds remain viable in the soil for
at least 7 years (Service 2021, p. 12). The known pollinators of
bracted twistflower are leafcutter bees (Megachile spp.) (Dieringer
(1991, pp. 341-343), which have an estimated forage range of 600 meters
to 3 kilometers (0.37 to 1.86 miles) (Mitchell 1936, pp. 124-125;
Gathmann and Tscharntke 2002, pp. 760-761; Greenleaf et al. 2007, p.
593; Discover Life 2019); sweat bees (family Halictidae) may also be
effective pollinators (Service 2021, p. 5), but due to their smaller
size have correspondingly smaller forage ranges. Sexual reproduction
also increases genetic diversity, and thus representation, which allows
populations to be more likely to adapt and survive when confronted with
new pathogens, competitors, and changing environmental conditions. For
these reasons, successful reproduction likely requires clustering of
genetically diverse individuals within habitats that also support
leafcutter bees, sweat bees, and other native bee species.
Fall and winter rainfall stimulate bracted twistflower seed
germination; successive rainfall events that allow soil moisture to
persist may have greater effect than one or two heavy rains. In
addition to rain, other factors appear to stimulate germination, such
as the removal of competing vegetation, and possibly fire during a
previous season.
Minimum Viable Population Size
Populations of bracted twistflower must be large enough to have a
high probability of surviving a prescribed period of time. For example,
Mace and Lande (1991, p. 151) propose that species or populations be
classified as vulnerable when the probability of persisting 100 years
is less than 90 percent. This metric of population resilience is called
minimum viable population (MVP). We adapted the method published in
Pavlik (1996, p. 137) to estimate an MVP for bracted twistflower of
about 1,800 individuals. This estimate of MVP is based only on numbers
of mature, flowering individuals because juveniles that die before they
reproduce do not contribute to the effective population size or future
genetic diversity.
Current Condition
Our assessment of the current species viability of bracted
twistflower is based on its resiliency, redundancy, and representation.
We ranked the current conditions of bracted twistflower EOs as high,
medium, low, or extirpated based on the following characteristics: The
proportion of potential populations where habitat is intact (described
above); the population sizes and trends (if known) in remaining intact
habitats; genetic diversity and inbreeding coefficients (if known); and
the current levels of monitoring, vegetation management, and protection
from development, herbivores, and recreational impacts on the remaining
intact habitats. The current condition of each EO is based upon the
cumulative effects of these factors.
Resiliency
Our review of the TXNDD EO records (TXNDD 2018) indicates that
relatively large pulses of bracted twistflower plants emerge in
specific areas (Source Features) during relatively few years, while
during most years few or no plants emerge. This wide annual variation
in germination makes it very difficult to determine the species'
population sizes and demographic trends (Service 2021, pp. 22-23,
appendix A). However, one indicator of the status of bracted
twistflower populations is the condition of their habitats. We define
potential population size as the maximum numbers observed in specific
areas during ``pulse'' years, when optimal conditions stimulate the
greatest amounts of seed germination, establishment, and survival to
successful reproduction. Thus, our estimate of the species' status is
based in part on the potential populations remaining in intact
habitats. The potential total number of individuals at the 17 naturally
occurring EOs observed since 1989 is 12,764 (not including 120 planted
at the experimental population at EO 33). Since 1989, 14 percent of
bracted twistflower habitat (a potential population of 1,780 plants)
has been completely destroyed in portions of six EOs; 19 percent of
bracted twistflower habitat (a potential population of 2,496 plants)
has been partially destroyed in portions of five EOs; and 67 percent (a
potential population of 8,488 plants) remains intact in portions of 15
naturally occurring EOs (note that each EO can have intact, partially
destroyed, and destroyed portions, so the total is greater than the
number of EOs). Nevertheless, this estimate reflects only the losses
due to habitat development, and does not account for populations that
may have declined due to excessive herbivory or juniper competition.
Only four of the remaining EOs have potential populations of at
least 50 percent of the estimated MVP value of 1,800 individuals. These
medium resilient populations are Barton Creek Greenbelt and Wilderness
Park (EO 17) and Rancho Diana (EO 31), which are protected natural
areas managed by the City of Austin and City of San Antonio,
respectively; Laurel Canyon (EO 25) is protected from development and
land use change through a City of San Antonio conservation easement;
and landowners voluntarily conserve a portion of Medina Lake (EO 18).
The City of Austin also protects Ullrich (EO 7) from development and
land use change (Texas Parks and Wildlife Department 2018, p. 1),
although the potential maximum population is about 27 percent of the
estimated MVP level. Gus Fruh (EO 36) is small, but due to its
proximity to EO 17 along Barton Creek, might be considered part of a
Barton Creek metapopulation. Mt. Bonnell City Park (EO 9), Garner SP
(EO 10), Eisenhower City Park (EO 23), Valburn/Bull Creek District Park
(EO 35), and Falls Ranch (no EO number) are all currently far below the
MVP level. Four EOs have been mostly lost to development: Cat Mountain
(EO 2), East Medina (EO 8), Mt. Bonnell City Park, and Valburn/Bull
Creek. Two EOs have been completely lost to development: Mesa (EO 21)
and Rough Hollow (EO 32). No individuals have been seen in recent years
at two additional EOs, Bright Leaf (EO 26) and Upper Long Canyon (EO
24), nor at the experimental population at Vireo Preserve (EO 33). In
summary, none of the EOs of bracted twistflower have reached the MVP
level in the last decade, most have low resiliency, many have gradually
declined over the years that they have been monitored, and six EOs have
been extirpated or very nearly extirpated.
Redundancy and Representation
Bracted twistflower currently possesses significant genetic
diversity at the species level, but populations are genetically
distinct and there is no gene
[[Page 62674]]
flow between most populations (Pepper 2010, p. 11). However, of the 10
EOs assessed by Pepper, low levels of genetic diversity occurred in all
or parts of four EOs (40 percent), and all or parts of five EOs (50
percent) had high levels of inbreeding; low genetic diversity and
inbreeding were more prevalent in smaller, more isolated populations
(Pepper 2010, pp. 13, 15). Therefore, although the species still
possesses adequate genetic and ecological representation, many of its
populations are at risk, due to small population sizes, low levels of
genetic diversity, lack of gene flow, and inbreeding.
Representation areas are sectors of a species' geographic range
where important constituents of its genetic and ecological diversity
occur. The known EOs of bracted twistflower are clustered in three
geographic areas separated from each other by 50 km (30 mi) or more.
Slight differences in day length, solar elevation, temperature, and
precipitation occur over the species' range from northeast to
southwest. Austin has more moderate summer and winter temperatures, 40
percent fewer days of freezing weather, and 40 percent greater annual
rainfall, compared to Uvalde County. These climate differences also
create variation in the structure and composition of associated
vegetation. Pepper (2010, pp. 4, 15) identified major, distinct
clusters of genetic diversity in Medina County and in the Austin area .
Based on this genetic data and the geographic clustering of
populations, we identified three representation areas in the
northeastern, central, and western portions of the species' range
(Service 2021, Figure 9).
Two EOs are extirpated (EO 21 and EO 32), and five EOs have low
condition ranks and negligible contributions to redundancy. The
northeast representation area has six EOs with high or medium condition
ranks, conferring an intermediate degree of population redundancy
within this area. The central representation area also has intermediate
redundancy, because it has four EOs with high- or medium- condition
ranks. In the west representation area, only EO 10 has a medium
condition rank, and no population pulses have been observed there in
recent years. This representation area appears to have very low
redundancy; however, few surveys have been conducted in that area, so
undiscovered populations might still exist.
In summary, bracted twistflower has four EOs with medium resiliency
and no highly resilient EOs. Two representation areas have intermediate
redundancy. Genetic representation at the species level is adequate,
but 40 to 50 percent of EOs had low genetic diversity and high
inbreeding, and inbreeding also occurred in three larger populations.
The species has lost all or parts of six EOs and one-third of its
potential population size over the last 30 years.
Risk Factors
A primary driver of the bracted twistflower's status is habitat
loss due to urban and residential land development (McNeal 1989, p. 17;
Damude and Poole 1990, p. 51; Zippin 1997, p. 229; Fowler 2010, p. 2;
Pepper 2010, p. 5). A number of cities, including Austin, San Marcos,
New Braunfels, and San Antonio, were established along the Balcones
Escarpment due to the prevalence of springs. This area, known as the
Interstate 35 corridor, is one of the fastest-growing urban complexes
in the United States. Urban development reduces the redundancy and
representation of the bracted twistflower and has consumed all or most
of the habitat at six EOs of the bracted twistflower.
Habitat changes leading to lower sunlight intensity in the existing
habitat are another threat to the bracted twistflower as growth and
reproduction of the species, and thus resilience, increases with higher
light intensity and duration (Fowler 2010, pp. 1-18; Leonard 2010, pp.
1-86; Ramsey 2010, pp. 1-35; Leonard and Van Auken 2013, pp. 276-285).
Bracted twistflower habitats have likely experienced a decline in the
frequency of wildfire, which has allowed Ashe juniper and other woody
plant cover to increase within most bracted twistflower populations
(Bray 1904, pp. 14-15, 22-23; Fonteyn et al. 1988, p. 79; Fowler et al.
2012, pp. 1518-1521). These increases in woody plant cover reduce the
growth and reproduction of bracted twistflowers.
Severe herbivory by white-tailed deer and introduced ungulates is a
significant factor affecting the status of bracted twistflower
throughout the species' range, except where populations are protected
from deer by fencing or through intensive herd management (McNeal 1989,
p. 17; Damude and Poole 1990, pp. 52-53; Dieringer 1991, p. 341; Zippin
1997, pp. 39-197, 227; Leonard 2010, pp. 36-43; Fowler 2014, pp. 17,
19). Herbivory is exacerbated by the extremely high deer densities in
the Edwards Plateau of Texas (Zippin 1997, p. 227).
Both permitted and unauthorized recreation affects the species'
survival at several protected natural areas, as well as on private
lands. Hiking and mountain bike trails have impacted the populations at
Mt. Bonnell City Park, Barton Creek Preserve, Garner State Park, and
Bull Creek Park through trampling of the herbaceous vegetation and
severe soil erosion where trails cut directly through occupied habitat
(McNeal 1989, p. 19; Fowler 2010, p. 2; Bracted Twistflower Working
Group 2010, p. 3; Pepper 2010, pp. 5, 15, 17).
Small, isolated populations are less resilient and more vulnerable
to catastrophic losses caused by random fluctuations in recruitment or
variations in rainfall or other environmental factors (Service 2016, p.
20). Small populations are also less able to overwhelm herbivores to
ensure replenishment of the soil seed reserve (Service 2021, p. 33). In
addition to population size, it is likely that population density also
influences population viability, because reproduction requires
genetically compatible individuals to be clustered within the forage
range of the native bee pollinators (Service 2021, p. 33). Small,
reproductively isolated populations are also more susceptible to the
loss of genetic diversity, genetic drift, and inbreeding (Barrett and
Kohn 1991, pp. 3-30). This may reduce the ability of the species or
population to resist pathogens and parasites, adapt to changing
environmental conditions, or colonize new habitats. More than half of
the EOs observed since 1989 are at risk due to the demographic
consequences of small population sizes (significantly below the
estimated MVP level of 1,800 individuals), and many of the remaining
populations have very little genetic diversity and relatively high
levels of inbreeding (Pepper 2010, pp. 13, 15). The species as a whole
still possesses significant genetic diversity (Pepper 2010, pp. 4, 11,
15), but several of the core reservoirs of the species' genetic
diversity occur on private lands and may be lost to development.
Projections of the Species Future Viability
The SSA projects viability during two future periods, from 2030 to
2040 and from 2050 to 2074. We chose these time frames because they
represent the likely minimum and maximum lengths of time that seeds
could remain viable in the soil, and therefore the potential of
declining EOs to recover from viable seeds in the soil seed reserve.
Although we do not know the maximum length of time that bracted
twistflower seeds can remain viable in the soil seed reserve,
observations of the experimental population at Vireo Preserve reveal
that at least some seeds are viable after seven
[[Page 62675]]
years. Beale's seed viability experiment, begun in 1879, found that 60
percent of annual and biennial plant species still germinated after 15
years in the soil; but by 35 and 50 years, viable seeds persisted for
only 30 percent and 25 percent of the species, respectively (Telewski
and Zeevart 2002, p. 1286). Based on the Vireo Preserve observations
and the Beale experiment, it is likely that bracted twistflower EOs
could be restored after 10 or even 20 years without replenishment.
Conversely, it is also likely that the soil seed reserve would be
completely depleted after 50 years.
The projections of future viability also considered three different
scenarios representing an improvement over current conditions,
continuation of current trends, or deterioration beyond current
conditions. These scenarios were based on seven components that
influence this species' status and their cumulative effects on the
species: The extent of conservation support, effects of regional
development, survey results, documentation of the geographic range,
effectiveness of habitat management, effectiveness of population
management, and effects of climate changes. Table 2 summarizes the
projected species viability during each of the two time frames and
under each of the three scenarios. Under the ``improvement'' scenario,
the number of EOs in high condition, currently 5, would increase to 10
by 2030-2040 and to 13 by 2050-2074 leading to an increase in species'
resiliency. In this scenario species' redundancy and representation
remain stable. Under the ``continue'' scenario, the number of
extirpated EOs would increase to four by 2030-2040 and to 10 by 2050-
2074 leading to a loss of redundancy. Both EOs in the West
Representation Area would be extirpated by 2050-2074 leading to a
reduction in species' representation. Conditions within 15 EOs would
deteriorate under this scenario, leading to a reduction in species'
resiliency. The ``deterioration'' scenario projects extirpation of 11
and 15 EOs during these periods, respectively, leading to a significant
reduction in species redundancy and representation. By 2050-2074 all
EOs in the West Representation area would be extirpated with only two
remaining in the Northeast Representation Area and one in the Central
Representation Area. Under this scenario, species resiliency declines
across all sites. For more information, see the bracted twistflower SSA
report (Service 2021, pp. 51-66). These scenarios should not be
interpreted as mutually exclusive. The components of the scenarios will
interact independently; future viability will likely result from a
combination of conditions analyzed in these scenarios. For example,
conservation support and habitat management could be better than
expected by 2050, but climate changes and regional growth could have
more severe impacts than expected.
Table 2--Projected Viabilities of Bracted Twistflower During Two Future Time Frames and Under Three Scenarios
----------------------------------------------------------------------------------------------------------------
Future scenarios
-----------------------------------------------------
Improvement Current trends Deterioration
EO No. Current condition rank ------------------ continue -----------------
------------------
Period/rank Period/rank Period/rank
----------------------------------------------------------------------------------------------------------------
Northeast Representation Area
----------------------------------------------------------------------------------------------------------------
2........................... Low......................... 2030-2040: Low.. 2030-2040: Low.. 2030-2040:
Extirpated.
2050-2074: 2050-2074: 2050-2074:
Medium Extirpated. Extirpated.
7........................... High........................ 2030-2040: High. 2030-2040: High. 2030-2040: Low.
2050-2074: High 2050-2074: High. 2050-2074: Low.
9........................... Medium...................... 2030-2040: High. 2030-2040: Low.. 2030-2040:
Extirpated.
2050-2074: High 2050-2074: 2050-2074:
Extirpated. Extirpated.
17.......................... High........................ 2030-2040: High. 2030-2040: High. 2030-2040: Low.
2050-2074: High 2050-2074: 2050-2074: Low.
Medium.
21.......................... Extirpated.................. 2030-2040: 2030-2040: 2030-2040:
Extirpated. Extirpated. Extirpated.
2050-2074: 2050-2074: 2050-2074:
Extirpated Extirpated. Extirpated.
26.......................... Low......................... 2030-2040: 2030-2040: 2030-2040:
Medium. Extirpated. Extirpated.
2050-2074: 2050-2074: 2050-2074:
Medium Extirpated. Extirpated.
32.......................... Extirpated.................. 2030-2040: 2030-2040: 2030-2040:
Medium. Extirpated. Extirpated.
2050-2074: 2050-2074: 2050-2074:
Medium Extirpated. Extirpated.
33.......................... Low......................... 2030-2040: 2030-2040: 2030-2040:
Medium. Extirpated. Extirpated.
2050-2074: High 2050-2074: 2050-2074:
Extirpated. Extirpated.
35.......................... Medium...................... 2030-2040: High. 2030-2040: Low.. 2030-2040: Low.
2050-2074: High 2050-2074: Low.. 2050-2074:
Extirpated.
36.......................... High........................ 2030-2040: High. 2030-2040: 2030-2040: Low.
Medium.
2050-2074: High 2050-2074: Low.. 2050-2074:
Extirpated.
xx \1\...................... Medium...................... 2030-2040: 2030-2040: Low.. 2030-2040:
Medium. Extirpated.
2050-2074: High 2050-2074: 2050-2074:
Extirpated. Extirpated.
----------------------------------------------------------------------------------------------------------------
Central Representation Area
----------------------------------------------------------------------------------------------------------------
8........................... Low......................... 2030-2040: 2030-2040: Low.. 2030-2040:
Medium. Extirpated.
2050-2074: 2050-2074:
Extirpated. Extirpated.
18.......................... Medium...................... 2030-2040: High. 2030-2040: 2030-2040: Low.
Medium.
2050-2074: High 2050-2074: Low.. 2050-2074:
Extirpated.
23.......................... Medium...................... 2030-2040: High. 2030-2040: Low.. 2030-2040:
Extirpated.
2050-2074: High 2050-2074: Low.. 2050-2074:
Extirpated.
25.......................... High........................ 2030-2040: High. 2030-2040: 2030-2040: Low.
Medium.
2050-2074: High 2050-2074: Low.. 2050-2074:
Extirpated.
31.......................... High........................ 2030-2040: High. 2030-2040: High. 2030-2040:
Medium.
2050-2074: High 2050-2074: High. 2050-2074: Low.
----------------------------------------------------------------------------------------------------------------
[[Page 62676]]
West Representation Area
----------------------------------------------------------------------------------------------------------------
10.......................... Medium...................... 2030-2040: High. 2030-2040: Low.. 2030-2040:
Extirpated.
2050-2074: High 2050-2074: 2050-2074:
Extirpated. Extirpated.
24.......................... Low......................... 2030-2040: 2030-2040: Low.. 2030-2040:
Medium. Extirpated.
2050-2074: High 2050-2074: 2050-2074:
Extirpated. Extirpated.
----------------------------------------------------------------------------------------------------------------
\1\ This newly-discovered site does not yet have in EO ID or EO number in the TXNDD.
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. To assess the current and
future condition of the species, we undertake an iterative analysis
that encompasses and incorporates the threats individually and then
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.
Conservation Efforts
Ten scientific investigations have been completed that contribute
to our knowledge of the phenology, reproduction, habitats, ecology,
population biology, and population genetics of bracted twistflower. The
Bracted Twistflower Working Group, a consortium of federal, state, and
local agencies, researchers, and conservation organizations, has met
informally at least annually since 2000 and has worked actively to
promote the conservation and recovery of this species. The Service,
Texas Parks and Wildlife Department (TPWD), the City of Austin, Travis
County, the Lower Colorado River Authority, and the Lady Bird Johnson
Wildflower Center established a voluntary Memorandum of Agreement to
protect, monitor, and restore bracted twistflower and its habitats on
Balcones Canyonlands Preserve (BCP) tracts. Five extant EOs and one
experimental population are protected through the agreement, including
three of the five populations in a high current condition (Table 2).
The City of San Antonio has actively protected and managed EOs at
Eisenhower Park and Rancho Diana; the latter continues to be one of the
largest remaining populations. The City of San Antonio and The Nature
Conservancy own a conservation easement to protect 222 ha (549 ac) in
Medina County for watershed conservation; this includes EO 25, which
has one of the largest extant bracted twistflower populations. All or
parts of 11 EOs are located on state or local conservation land.
Determination of the Bracted Twistflower's Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an ``endangered species'' or
a ``threatened species.'' The Act defines an ``endangered species'' as
a species that is in danger of extinction throughout all or a
significant portion of its range, and a ``threatened species'' as a
species that is likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its
range. The Act requires that we determine whether a species meets the
definition of endangered species or threatened species because of any
of the following factors: (A) The present or threatened destruction,
modification, or curtailment of its habitat or range; (B)
Overutilization for commercial, recreational, scientific, or
educational purposes; (C) Disease or predation; (D) The inadequacy of
existing regulatory mechanisms; or (E) Other natural or manmade factors
affecting its continued existence.
Status Throughout All of Its Range
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 the bracted twistflower.
Bracted twistflower occurs in three geographically separate
representation areas, which experience differing regional climate and
biotic factors. Although threats are currently acting on the bracted
twistflower throughout its range, 11 EOs were found to have high or
medium resiliency for their current condition, and 11 EOs (including
one experimental population) occur on protected, state- or locally-
owned conservation lands. Thus, after assessing the best available
information, we conclude that the bracted twistflower is not currently
in danger of extinction throughout all of its range. We therefore
proceed with determining whether the bracted twistflower is likely to
become endangered within the foreseeable future throughout all of its
range.
For the purpose of this determination, the foreseeable future is 50
years, which corresponds to the climate projections used in the
analysis. Under the ``current trends continue'' scenario, the number of
extirpated EOs increases from two to 10. Under the ``declining''
scenario, 15 EOs will become extirpated, and the condition rank of the
remaining three EOs will be low. Development, which results in the
permanent loss of habitat, is the most significant threat to bracted
twistflower, and this threat is expected to continue into the future.
Habitats throughout the species' range have been degraded due to
habitat modification and increased browsing pressure from white-tailed
deer and introduced ungulates. Threats from habitat loss, habitat
modification, increased herbivory, and loss of genetic diversity are
cumulative and will likely result in further degradation without
management intervention. There is no appreciable gene flow between
populations (Pepper 2010, p. 11). Populations of bracted twistflower
have declined and are expected to continue to decline into the future.
Our analysis
[[Page 62677]]
of the species' current and future conditions show that the population
and habitat factors used to determine the resiliency, representation,
and redundancy of bracted twistflower are likely to continue to decline
to the degree that the species is likely to become in danger of
extinction within the foreseeable future throughout all of its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. The court in Center for Biological Diversity v. Everson,
2020 WL 437289 (D.D.C. Jan. 28, 2020) (Center for Biological
Diversity), vacated the aspect of the Final Policy on Interpretation of
the Phrase ``Significant Portion of Its Range'' in the Endangered
Species Act's Definitions of ``Endangered Species'' and ``Threatened
Species'' (79 FR 37578; July 1, 2014) that provided the Service does
not undertake an analysis of significant portions of a species' range
if the species warrants listing as threatened throughout all of its
range. Therefore, we proceed to evaluating whether the species is
endangered in a significant portion of its range--that is, whether
there is any portion of the species' range for which both (1) the
portion is significant, and (2) the species is in danger of extinction
in that portion. Depending on the case, it might be more efficient for
us to address the ``significance'' question or the ``status'' question
first. We can choose to address either question first. Regardless of
which question we address first, if we reach a negative answer with
respect to the first question that we address, we do not need to
evaluate the other question for that portion of the species' range.
Following the court's holding in Center for Biological Diversity,
we now consider whether there are any significant portions of the
species' range where the species is in danger of extinction now (i.e.,
endangered). In undertaking this analysis for the bracted twistflower,
we choose to address the status question first--we consider information
pertaining to the geographic distribution of the species and the
threats that the species faces to identify any portions of the range
where the species is endangered.
The statutory difference between an endangered species and a
threatened species is the time frame in which the species becomes in
danger of extinction; an endangered species is in danger of extinction
now while a threatened species is not in danger of extinction now but
is likely to become so in the foreseeable future. Thus, we reviewed the
best scientific and commercial data available regarding the time
horizon for the threats that are driving the bracted twistflower to
warrant listing as a threatened species throughout all of its range. We
considered whether the threats are geographically concentrated in any
portion of the species' range in a way that would accelerate the time
horizon for the species' exposure or response to the threats. We
examined the following threats: Habitat loss to development (Factor A);
changes in fire frequency and the composition and structure of
vegetation (Factor A); excessive herbivory by white-tailed deer and
other ungulates (Factor C); and demographic and genetic consequences of
small, isolated populations (Factor E), including cumulative effects.
All of the known threats are present throughout the bracted
twistflower's range, but to different degrees in different areas. We
identified the western portion of the species' range, consisting of two
EOs in Uvalde County, and determined that there is a concentration of
threats from browsing of white-tailed deer and other ungulates. These
threats are not unique to this area, but are acting at greater
intensity here (e.g., larger populations of white-tailed deer and other
ungulates). One EO is fairly large in size and is in medium condition
with a moderate level of genetic diversity. The other EO within Uvalde
County only has data from one observation in 1997, which documented
five plants, and is in low condition. Since the larger population in
this portion is in medium condition, this portion is not currently in
danger of extinction.
Although some threats to the bracted twistflower are concentrated
in Uvalde County, the best scientific and commercial data available
does not indicate that the concentration of threats, or the species'
responses to the concentration of threats, are likely to accelerate the
time horizon in which the species becomes in danger of extinction in
that portion of its range. As a result, the bracted twistflower is not
in danger of extinction now within Uvalde County. Therefore, we
determine, that the species is likely to become in danger of extinction
within the foreseeable future throughout all of its range. This is
consistent with the courts' holdings in Desert Survivors v. Department
of the Interior, No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug.
24, 2018), and Center for Biological Diversity v. Jewell, 248 F. Supp.
3d, 946, 959 (D. Ariz. 2017).
Determination of Status
Our review of the best scientific and commercial data available
indicates that bracted twistflower meets the Act's definition of a
threatened species. Therefore, we propose to list the bracted
twistflower 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 species 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 consists of preparing draft and final recovery
plans, beginning with the development of a recovery outline and making
it available to the public within 30 days of a final listing
determination. 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
[[Page 62678]]
threatened (``downlisting'') or 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 (<a href="http://www.fws.gov/endangered">http://www.fws.gov/endangered</a>), or from
our Austin 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.
If this species is listed, funding for recovery actions will be
available from a variety of sources, including Federal budgets, State
programs, and cost-share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, the State of Texas would be eligible
for Federal funds to implement management actions that promote the
protection or recovery of the bracted twistflower. Information on our
grant programs that are available to aid species recovery can be found
at: <a href="http://www.fws.gov/grants">http://www.fws.gov/grants</a>.
Although the bracted twistflower is only proposed for listing under
the Act at this time, please let us know if you are interested in
participating in recovery efforts for this species. Additionally, we
invite you to submit any new information on this species whenever it
becomes available and any information you may have for recovery
planning purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as an
endangered or threatened species and with respect to its critical
habitat, if any is designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any action that is likely to jeopardize the
continued existence of a species proposed for listing or result in
destruction or adverse modification of proposed critical habitat. If a
species is listed subsequently, section 7(a)(2) of the Act requires
Federal agencies to ensure that activities they authorize, fund, or
carry out are not likely to jeopardize the continued existence of the
species or destroy or adversely modify its critical habitat. If a
Federal action may affect a listed species or its critical habitat, the
responsible Federal agency must enter into consultation with the
Service.
Federal agency actions within the species' habitat that may require
conference or consultation or both as described in the preceding
paragraph include management and any other landscape-altering
activities on Federal lands administered by the Federal Highways
Administration, U.S.D.A. Natural Resources Conservation Service, U.S.
Army Corps of Engineers, Department of Defense-Joint Base San Antonio,
and Federal Emergency Management Agency.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed, those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a proposed
listing on proposed and ongoing activities within the range of the
species proposed for listing. The discussion below regarding protecting
regulations under section 4(d) complies with our policy.
II. Proposed Rule Issued Under Section 4(d) of the Act
Background
Section 4(d) of the Act contains two sentences. The first sentence
states that the Secretary shall issue such regulations as she deems
necessary and advisable to provide for the conservation of species
listed as threatened. The U.S. Supreme Court has noted that statutory
language like ``necessary and advisable'' demonstrates a large degree
of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)).
Conservation is defined in the Act to mean the use of all methods and
procedures which are necessary to bring any endangered species or
threatened species to the point at which the measures provided pursuant
to the Act are no longer necessary. Additionally, the second sentence
of section 4(d) of the Act states that the Secretary may by regulation
prohibit with respect to any threatened species any act prohibited
under section 9(a)(1), in the case of fish or wildlife, or section
9(a)(2), in the case of plants. Thus, the combination of the two
sentences of section 4(d) provides the Secretary with wide latitude of
discretion to select and promulgate appropriate regulations tailored to
the specific conservation needs of the threatened species. The second
sentence grants particularly broad discretion to the Service when
adopting the prohibitions under section 9.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, courts have upheld rules
developed under section 4(d) as a valid exercise of agency authority
where they prohibited take of threatened wildlife, or include a limited
taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007
U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council
v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D.
Wash. 2002)). Courts have also upheld 4(d) rules that do not address
all of the threats a species faces (see State of Louisiana v. Verity,
853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when
the Act was initially enacted, ``once an animal is on the threatened
list, the Secretary has an almost infinite number of options available
to him with regard to the permitted activities for those species. He
may, for example, permit taking, but not importation of such species,
or he may choose to forbid both taking and importation but allow the
transportation of such species'' (H.R. Rep. No. 412, 93rd Cong., 1st
Sess. 1973).
Exercising this authority under section 4(d), we have developed a
proposed rule that is designed to address the bracted twistflower's
specific threats and conservation needs. Although the statute does not
require us to make a ``necessary and advisable'' finding with respect
to the adoption of specific prohibitions under section 9, we find that
this rule as a whole satisfies the requirement in section 4(d) of the
Act to issue regulations deemed necessary and advisable to provide for
the conservation of the bracted twistflower. As discussed above under
Summary of Biological Status and Threats, the Service has concluded
that the bracted twistflower is likely to
[[Page 62679]]
become in danger of extinction within the foreseeable future primarily
due to habitat loss due to urban and residential land development,
increases in woody plant cover, severe herbivory, and small, isolated
populations. The provisions of this proposed 4(d) rule would promote
conservation of the bracted twistflower by encouraging management of
the landscape in ways that meet both land management considerations and
the conservation needs of the bracted twistflower. This proposed 4(d)
rule would apply only if and when we make final the listing of the
bracted twistflower as a threatened species.
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.
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 Proposed 4(d) Rule
This proposed 4(d) rule would provide for the conservation of the
bracted twistflower by prohibiting the following activities, except as
otherwise authorized or permitted: Importing or exporting; certain acts
related to removing, damaging, and destroying; delivering, receiving,
transporting, or shipping in interstate or foreign commerce in the
course of commercial activity; and selling or offering for sale in
interstate or foreign commerce.
As discussed above under Summary of Biological Status and Threats,
habitat loss due to urban and residential land development (Factor A),
increases in woody plant cover (Factor A), severe herbivory (Factor E),
and small, isolated populations (Factor E) affect the status of the
bracted twistflower. To protect the species from these threats, in
addition to the protections that apply to Federal lands, the 4(d) rule
would prohibit a person from removing, cutting, digging up, or damaging
or destroying the species on non-Federal lands in knowing violation of
any law or regulation of any State or in the course of any violation of
a State criminal trespass law. As most populations of the bracted
twistflower occur off Federal land, these protections in the 4(d) rule
are key to its effectiveness. For example, any damage to the species on
non-Federal land in violation of a Texas off-highway vehicle law would
be prohibited by the 4(d) rule. Additionally, any damage incurred by
the species due to criminal trespass on non-Federal lands would
similarly violate the proposed 4(d) rule. As a whole, the proposed 4(d)
rule would help in the efforts to recover the bracted twistflower by
limiting specific actions that damage individual populations.
We may issue permits to carry out otherwise prohibited activities,
including those described above, involving threatened plants under
certain circumstances. Regulations governing permits for threatened
plants are codified at 50 CFR 17.72, which states that ``the Director
may issue a permit authorizing any activity otherwise prohibited with
regard to threatened species.'' That regulation also states, ``The
permit shall be governed by the provisions of this section unless a
special rule applicable to the plant is provided in sections 17.73 to
17.78.'' We interpret that second sentence to mean that permits for
threatened species are governed by the provisions of section 17.72
unless a special rule, which we have defined to mean a species-specific
4(d) rule, provides otherwise. We recently promulgated revisions to
section 17.71 providing that section 17.71 will no longer apply to
plants listed as threatened in the future. We did not intend for those
revisions to limit or alter the applicability of the permitting
provisions in section 17.72, or to require that every 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 section 17.72 unless a
species-specific 4(d) rule provides otherwise would likely avoid
substantial duplication. Moreover, this interpretation brings section
17.72 in line with the comparable provision for wildlife at 50 CFR
17.32, in which the second sentence states, ``Such permit shall be
governed by the provisions of this section unless a special rule
applicable to the wildlife, appearing in sections 17.40 to 17.48, of
this part provides otherwise.'' Under 50 CFR 17.12 with regard to
threatened plants, a permit may be issued for the following purposes:
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 that is a party to a
cooperative agreement with the Service in accordance with section 6(c)
of the Act, who is designated by his or her agency for such purposes,
would be able to conduct activities designed to conserve the bracted
twistflower that may result in otherwise prohibited activities without
additional authorization.
[[Page 62680]]
The Service recognizes the proposed 4(d) rule would allow
beneficial and educational aspect of activities with seeds of
cultivated plants, which generally enhance the propagation of the
species, and therefore would satisfy permit requirements under the Act.
The Service intends to monitor the interstate and foreign commerce and
import and export of these specimens in a manner that will not inhibit
such activities, providing the activities do not represent a threat to
the survival of the species in the wild. In this regard, seeds of
cultivated specimens would not be subject to the prohibitions above,
provided that a statement that the seeds are of ``cultivated origin''
accompanies the seeds or their container.
Propagation is currently taking place for the bracted twistflower
and will continue to be an important recovery tool. This will include
collecting seeds from wild populations, following Center for Plant
Conservation guidelines and the USFWS-NMFS 2000 Policy Regarding
Controlled Propagation of Species Listed Under the Endangered Species
Act (65 FR 56916), and propagating them for seed increase, population
augmentation, introduction, and research related to the species'
recovery.
Nothing in this proposed 4(d) rule would change in any way the
recovery planning provisions of section 4(f) of the Act, the
consultation requirements under section 7 of the Act, or the ability of
the Service to enter into partnerships for the management and
protection of the bracted twistflower. However, interagency cooperation
may be further streamlined through planned programmatic consultations
for the species between Federal agencies and the Service, where
appropriate. We ask the public, particularly State agencies and other
interested stakeholders that may be affected by the proposed 4(d) rule,
to provide comments and suggestions regarding additional guidance and
methods that the Service could provide or use, respectively, to
streamline the implementation of this proposed 4(d) rule (see
Information Requested, above).
III. 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). Additionally, our regulations
at 50 CFR 424.02 define the word ``habitat'' as follows: ``For the
purposes of designating critical habitat only, habitat is the abiotic
and biotic setting that currently or periodically contains the
resources and conditions necessary to support one or more life
processes of a species.''
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 also 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 occupied areas,
we focus on the specific features that are essential to support the
life-history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, prey, vegetation,
symbiotic species, or other features. A feature may be a single habitat
characteristic, or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. The implementing regulations at 50 CFR 424.12(b)(2) further
delineate unoccupied critical habitat by setting out three specific
parameters: (1) When designating critical habitat, the Secretary will
first evaluate areas occupied by the species; (2) the Secretary will
only consider unoccupied areas to be essential where a critical
[[Page 62681]]
habitat designation limited to geographical areas occupied by the
species would be inadequate to ensure the conservation of the species;
and (3) for an unoccupied area to be considered essential, the
Secretary must determine that there is a reasonable certainty both that
the area will contribute to the conservation of the species and that
the area contains one or more of those physical or biological features
essential to the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report and information developed during the
listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge.
As the regulatory definition of ``habitat'' reflects (50 CFR
424.02), 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 the 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
(HCPs), or other species conservation planning efforts if new
information available at the time of those planning efforts calls for a
different outcome.
Prudency Determination
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary shall designate critical habitat at the
time the species is determined to be an endangered or threatened
species. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary
may, but is not required to, determine that a designation would not be
prudent in the following circumstances:
(i) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(ii) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(iii) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States;
(iv) No areas meet the definition of critical habitat; or
(v) The Secretary otherwise determines that designation of critical
habitat would not be prudent based on the best scientific data
available.
As discussed earlier in this document, there is currently no
imminent threat of collection or vandalism identified under Factor B
for this species, and identification and mapping of critical habitat is
not expected to initiate any such threat. In our SSA report (Service
2021, entire) and proposed listing determination for the bracted
twistflower, we determined that the present or threatened destruction,
modification, or curtailment of habitat or range is a threat to the
bracted twistflower and that those threats in some way can be addressed
by section 7(a)(2) consultation measures. The species occurs wholly in
the jurisdiction of the United States, and we are able to identify
areas that meet the definition of critical habitat. Therefore, because
none of the circumstances enumerated in our regulations at 50 CFR
424.12(a)(1) have been met and because the Secretary has not identified
other circumstances for which this designation of critical habitat
would be not prudent, we have determined that the designation of
critical habitat is prudent for the bracted twistflower.
Critical Habitat Determinability
Having determined that designation is prudent, under section
4(a)(3) of the Act we must find whether critical habitat for the
bracted twistflower is determinable. Our regulations at 50 CFR
424.12(a)(2) state that critical habitat is not determinable when one
or both of the following situations exist:
(i) Data sufficient to perform required analyses are lacking, or
(ii) The biological needs of the species are not sufficiently well
known to identify any area that meets the definition of ``critical
habitat.''
When critical habitat is not determinable, the Act allows the
Service an additional year to publish a critical habitat designation
(16 U.S.C. 1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological
needs of the species and habitat characteristics where this species is
located. This and other information represent the best scientific data
available and led us to conclude that the designation of critical
habitat is determinable for the bracted twistflower.
Physical or Biological Features Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied
[[Page 62682]]
by the species at the time of listing, we consider the physical or
biological features that are essential to the conservation of the
species and that 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, alkaline 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 essential to support the life history of the species.
In considering whether features are essential to the conservation
of the species, we 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, space
for individual and population growth and for normal behavior; food,
water, air, light, minerals, or other nutritional or physiological
requirements; cover or shelter; sites for breeding, reproduction, or
rearing (or development) of offspring; and habitats that are protected
from disturbance.
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential to
the conservation of the bracted twistflower from studies of the
species' habitat, ecology, and life history as described below.
Additional information can be found in the SSA report available on
<a href="http://www.regulations.gov">http://www.regulations.gov</a> and <a href="https://ecos.fws.gov/ecp/species/2856">https://ecos.fws.gov/ecp/species/2856</a>.
We have determined that the following physical or biological features
are essential to the conservation of the bracted twistflower:
Geological Substrate and Soils.
The prevalent Cretaceous geological formations in the Edwards
Plateau of central Texas include the Edwards group of formations and
its equivalent, the Devils River formation, which replaces the Edwards
to the west and south; both of these formations overlie the Glen Rose
formation (Maclay and Small 1986, pp. 17-24). Karstic, porous
limestones are abundant in the Edwards and Devils River formations, and
conversely, the Glen Rose limestones have relatively little porosity.
The Edwards Aquifer occupies the porous upper strata, and many seeps
and springs occur along the Balcones Escarpment, where the boundary of
these upper formations with the Glen Rose is exposed at the surface.
Some units of the Edwards, Devils River, and Glen Rose formations are
dolomitic, meaning that, in addition to calcium, they also contain
significant amounts of magnesium. Bracted twistflower populations occur
in close proximity to the exposed boundary of the Edwards or Devils
River and Glen Rose formations (McNeal 1989, p. 15; Zippin 1997, p.
223; Carr 2001, p. 1; Pepper 2010, p. 5). Most populations are less
than 2 kilometers (km) (1.2 miles (mi)) from this boundary, as seen in
less detailed, small-scale geological maps (Fowler 2014, pp. 11-12). A
detailed, large-scale geological map of northern Bexar County (Clark et
al. 2009) reveals that two bracted twistflower populations (Eisenhower
City Park and Rancho Diana) occur in a narrow stratum identified as a
basal nodular hydrostratigraphic member of the Kainer Formation,
Edwards Group. This stratum is immediately below a dolomitic
hydrostratigraphic member of the Kainer Formation, and immediately
above a cavernous hydrostratigraphic member of the Glen Rose limestone
(Service 2021, pp. 8-9, figures 6-8). Populations often occur in
horizontal bands where these strata are exposed along slopes. Soils in
the immediate vicinity of individual plants are very shallow clays with
abundant rock fragments.
Although we do not know why the species is associated with the
Edwards-Glen Rose boundary, Fowler (2014, p. 12) proposed two
hypotheses: (1) The species depends on increased seepage between these
formations; and (2) the species requires higher levels of magnesium
ions that leach from dolomitic limestone in the lower strata of the
Edwards formation. These hypotheses are not mutually exclusive.
Ecological Community.
Bracted twistflower occurs in native, old-growth juniper-oak
woodlands and shrublands along the Balcones Escarpment. Individual
plants frequently occur near or under a canopy of Ashe juniper, Texas
live oak, Texas persimmon (Diospyros texana), Texas mountain laurel,
Texas red oak or other trees. In many sites bracted twistflower
inhabits dense thickets of evergreen sumac (Rhus virens), agarita
(Mahonia trifoliolata), Roemer acacia (Acacia roemeriana), Lindheimer
silk-tassel (Garrya ovata ssp. lindheimeri), thoroughwort (Ageratina
havanensis), oreja de rat[oacute]n (Bernardia myricifolia), or other
shrubs.
Bracted twistflower is a winter annual plant that persists only
where individuals produce enough seeds to sustain a reserve of viable
seeds in the soil. White-tailed deer and introduced ungulates heavily
browse the flower stalks of individual plants before they can set seed,
thus contributing to the decline of populations. Herbivory threatens
the species throughout its range, except where it is protected from
deer by fencing or intensive herd management (hunting) (McNeal 1989, p.
17; Damude and Poole 1990, pp. 52-53; Dieringer 1991, p. 341; Zippin
1997, pp. 39-197, 227; Leonard 2010, pp. 36-43; Fowler 2014, pp. 17,
19). The extremely high deer densities in the Edwards Plateau of Texas
exacerbate the species' vulnerability to herbivory (Zippin 1997, p.
227).
In sites that are protected from white-tailed deer, the most robust
bracted twistflower plants occur where woody plant cover is less dense
(Damude and Poole 1990, pp. 29-30; Poole et al. 2007, p. 470). The two
largest populations, Laurel Canyon and Rancho Diana, occur in
relatively open vegetation of low shrubs and sotol (Dasylirion
texanum), where there is little or no juniper cover. Laboratory and
field experiments demonstrated that growth and reproduction of bracted
twistflower benefits from higher light intensity and duration than it
receives in many of the extant populations (Fowler 2010, pp. 10-11;
Leonard 2010, p. 63; Ramsey 2010, p. 20); its persistence in dense
thickets may be due to increased herbivory of the plants growing in
more open vegetation (Leonard 2010, p. 63; Ramsey 2010, p. 22). Deer-
exclusion cages significantly increased the
[[Page 62683]]
probability of survival, reproduction, above-ground biomass, and seed
set, compared to un-caged plants, at a bracted twistflower population
near Mesa Drive in Austin where the deer population was very high
(Zippin 1997, p. 60). In 2012, the City of San Antonio Parks and
Recreation Department (SAPRD) protected the Rancho Diana population
with a deer-fenced exclosure. In August and September 2017, SAPRD
personnel cut to ground level all woody vegetation in a 760-m2 (8,180-
ft2) plot within the exclosure. In May 2018, the number of bracted
twistflower plants within the cleared plot was 16 times greater, and
seed production within the plot was 15 times greater, than in any of 4
previous years (Cozort 2019). In synthesis, shaded juniper thickets may
serve as refugia from herbivory, but are not the species' optimal
habitat. Bracted twistflower is best adapted to microsites at canopy
gaps and edges within the juniper-oak woodland where it receives direct
sunlight at least part of the day. It is likely that wildfires occurred
more frequently in bracted twistflower habitats prior to European
settlement, and that the more recent reduction in fire frequency has
allowed Ashe juniper to increase in cover and density (Bray 1904, pp.
14-15, 23-24; Fonteyn et al. 1988, p. 79; Service 2021, pp. 12, 29-30).
Bracted twistflower produces seeds primarily through outcrossing
(fertilization between different individuals), and therefore depends
heavily on pollinators, including a native leafcutter bee, Megachile
comata, for reproduction (Dieringer 1991, pp. 341-343). Halictid bees
(sweat bees) and other native bee species may also be effective
pollinators (Service 2021, p. 5). Therefore, bracted twistflower
habitats must also support populations of leafcutter bees and other
native bee species that effectively pollinate the species. Native bees
in turn require, as sources of pollen and nectar, a diverse, abundant
understory of native forb and shrub species that in the past was
periodically renewed by wildfires.
In summary, the essential physical and biological features of
bracted twistflower are:
(1) Karstic, dolomitic limestones underlain by less permeable
limestone strata, where perched aquifers seep to the surface along
slopes. These are often found within 2 kilometers of the exposed
boundary of the Edwards or Devils River and Glen Rose geological
formations;
(2) Native, old-growth juniper-oak woodlands and shrublands along
the Balcones Escarpment;
(3) Herbivory from white-tailed deer and introduced ungulates of
such low intensity that it does not severely deplete populations prior
to seed dispersal;
(4) Tree and shrub canopy gaps that allow direct sunlight to reach
the herbaceous plant layer at least 6 hours per day; and
(5) Viable populations of native bee species and the abundant,
diverse forb and shrub understory that support them.
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. The features essential to the conservation of this species
may require special management considerations or protections to reduce
the following threats: Habitat loss due to urban and residential
development, increased woody plant cover, severe herbivory by native
and introduced ungulates, and trampling and erosion from recreational
use. Management activities that could ameliorate these threats include
(but are not limited to) juniper thinning, prescribed fire, fencing to
exclude deer and other herbivores, herd management of local ungulate
populations, and protection from foot and bicycle traffic. These
management activities will protect the physical and biological features
essential for the conservation of the species by reducing herbivory,
maintaining open canopies, protecting the habitat from trampling and
erosion, and conserving diverse shrub and forb understory vegetation
that supports the species' native bee pollinators.
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.
Areas Occupied at the Time of Listing
We considered the geographic areas occupied by the species at the
time of listing to consist of EOs with survey data within the past 7
years or areas in which we confirmed that habitat remained intact using
aerial imagery. We know that seeds can remain dormant and viable in the
soil of intact sites for at least 7 years. Due to the large proportion
of private lands within the range of the species, the majority of known
locations occur on publicly-owned conservation lands that can be
accessed for surveys. Most of the critical habitat units have been
surveyed annually, and the habitats are protected by the cities of
Austin and San Antonio. We do not have recent surveys for two sites,
EOs 10 and 18 (Garner State Park and Medina Lake). However, we have
precise geographic coordinates for these populations collected with
Global Positioning System (GPS) instruments. In a Geographic
Information System (GIS), we have overlaid the geographic coordinates
of these sites on recent orthographically corrected aerial photographs
and have determined that the habitats remain intact.
We designated critical habitat units only at extant EOs that still
possess one or more of the physical and biological features that are
essential to its conservation. We delineated each critical habitat unit
around areas where karstic, dolomitic limestones of the Edwards or
Devils River formations overlay the less permeable Glen Rose formation.
The elevation ranges and degree of slope of these geological strata
vary among EOs. However, because the exposed strata that support
bracted twistflower populations are nearly horizontal, we used the
elevation range where individuals have been observed at each EO to
delineate this essential geological feature over the short distances
spanned by that EO Similarly, since seepage from overlying karst
aquifers occurs on slopes, we also used the range of slopes where
individuals have been observed at each EO to delineate this essential
feature at that EO. Thus, we combined the parameters of the observed
elevation range and slope range of the species at each EO to delimit
each critical habitat unit. However, we excluded any areas that lack
natural vegetation, such as roads and buildings, as determined through
examination of recent aerial photographs. We also did not designate
critical habitat units at EOs that are no longer occupied, or that no
longer possess the essential physical and biological features due to
development or significant disturbance. Finally, we did not extend
critical habitat units beyond areas that have been surveyed, because we
cannot determine if they
[[Page 62684]]
contain the essential physical or biological features.
Areas Outside the Geographic Area Occupied at the Time of Listing
We are not proposing to designate any areas outside the geographic
area currently occupied by bracted twistflower because we did not find
any unoccupied areas that contained the necessary PBFs and were
essential for the conservation of the species. We are designating
critical habitat within occupied habitat in all three representation
areas, including areas that preserve the populations with the highest
resiliency. Therefore, unoccupied areas are not necessary for the
recovery of the species.
General Information on the Maps of the Proposed Critical Habitat
Designation
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands lack
physical or biological features necessary for bracted twistflower. The
scale of the maps we prepared under the parameters for publication
within the Code of Federal Regulations may not reflect the exclusion of
such developed lands. Any such lands inadvertently left inside critical
habitat boundaries shown on the maps of this proposed rule have been
excluded by text in the proposed rule and are not proposed for
designation as critical habitat. Therefore, if the critical habitat is
finalized as proposed, a Federal action involving these lands would not
trigger section 7 consultation with respect to critical habitat and the
requirement of no adverse modification unless the specific action would
affect the physical or biological features in the adjacent critical
habitat.
We propose to designate as critical habitat lands that we have
determined are occupied at the time of listing (i.e., currently
occupied) and that contain one or more of the physical or biological
features that are essential to support life-history processes of the
species.
Some units contain all of the identified physical or biological
features and support multiple life-history processes. Some units
contain only some of the physical or biological features necessary to
support the bracted twistflower's particular use of that habitat.
The proposed critical habitat designation is defined by the maps,
as modified by any accompanying regulatory text, presented at the end
of this document under Proposed Regulation Promulgation. We include
more detailed information on the boundaries of the critical habitat
designation in the preamble of this document. We will make the
coordinates or plot points or both on which each map is based available
to the public on <a href="http://www.regulations.gov">http://www.regulations.gov</a> at Docket No. FWS-R2-ES-
2021-0013 and at the field office responsible for the designation (see
FOR FURTHER INFORMATION CONTACT).
Proposed Critical Habitat Designation
We are proposing approximately 1,607 acres (ac) (650 hectares (ha))
in three units as critical habitat for the bracted twistflower. The
critical habitat areas we describe below constitute our current best
assessment of areas that meet the definition of critical habitat for
the bracted twistflower. The three areas we propose as critical habitat
are: (1) Northeast Unit; (2) Central Unit; and (3) Southwest Unit.
Table 2 shows the proposed critical habitat units, the land ownership,
and the approximate area of each unit. All units proposed for
designation are occupied.
Table 2--Proposed Critical Habitat Units for the Bracted Twistflower
[Area estimates reflect all land within critical habitat unit boundaries.]
----------------------------------------------------------------------------------------------------------------
Subunit Critical habitat size
(conservation -------------------------
Unit area or property Property owner Occupied?
name) Ac Ha
----------------------------------------------------------------------------------------------------------------
1. Northeast.................. 1a. Barton Creek City of Austin... Yes............. 690.50 279.44
Park/Wilderness
Area (EOs 17,
36).
1b. Bull Creek City of Austin... Yes............. 2.32 0.94
Park (EO 35).
1c. Mount Bonnell City of Austin... Yes............. 2.00 0.81
Park (EO 9).
1d. Ullrich Water City of Austin... Yes............. 29.92 12.11
Treatment Plant
(Bee Creek Park)
(EO 7).
2. Central.................... 2a. Eisenhower City of San Yes............. 78.16 31.63
Park (EO 23). Antonio.
2b. Rancho Diana City of San Yes............. 395.73 160.15
(EO 31). Antonio.
2c. Laurel Canyon Laurel C. Canyon Yes............. 39.59 16.02
Ranch Ranch LP; City
Conservation of San Antonio
Easement (EO 25). holds
conservation
easement.
2d. Medina River Private.......... Yes............. 23.28 9.42
(EO 18).
3. Southwest.................. Garner State Park Texas Parks and Yes............. 345.22 139.71
(EO 10). Wildlife
Department.
-------------------------
Totals.................... ................. ................. ................ 1,606.72 650.23
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum exactly due to rounding.
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for the bracted twistflower,
below.
Unit 1: Northeast
Unit 1 consists of 725 ac (293 ha) of occupied habitat within
Travis County, Texas, and is composed of four subunits, which are
described below.
Subunit 1a
Barton Creek Greenbelt and Barton Creek Wilderness Park consist of
838.76 ac (339.44 ha) and 1,120.26 ac (453.36 ha) of protected areas,
respectively, along Barton Creek within the City of
[[Page 62685]]
Austin. These contiguous conservation areas are owned and managed by
the City of Austin Parks and Recreation Department as units of the BCP
system. We are proposing to designate 690.50 ac (279.44 ha) of the
Barton Creek BCP units as occupied critical habitat for the bracted
twistflower (EOs 17 and 36). This subunit contains the essential
physical and biological features of proximity to the geological
boundary, old-growth juniper-oak woodlands, and viable native bee
populations; the subunit has small canopy gaps, and small areas are
protected from deer. Specific threats include juniper encroachment into
canopy gaps, white-tailed deer herbivory, infrequent wildfire, and off-
trail recreational uses. Special management needed for bracted
twistflower within this subunit includes white-tailed deer herd
management and thinning of juniper trees; if it can be conducted
safely, management could include prescribed burning. The primary
management goal of these BCP units is to conserve the golden-cheeked
warbler (Dendroica chrysoparia), bracted twistflower, and protected
cave invertebrates, while providing appropriate, safe, public
recreational access; over 100,000 people visit the Barton Creek units
annually for outdoor recreational uses (City of Austin 2007a, pp. 1-
11). The specific management objectives relevant to the bracted
twistflower include posting educational signs, developing memoranda of
cooperation with user groups, conducting outreach to user groups,
blocking unauthorized trails, enforcing trail closures, thinning
junipers, and controlling exotic species. The City of Austin Wildland
Conservation Division monitors the Barton Creek bracted twistflower
populations annually (City of Austin 2018); we estimate that this is
the second largest known population of this species.
Subunit 1b
Bull Creek District Park, acquired in 1971, is a 47.30-ac (19.14-
ha) conservation area owned and managed by the City of Austin Parks and
Recreation Department as a unit of the BCP system. We are proposing to
designate 2.32 ac (0.94 ha) of this BCP unit as occupied critical
habitat for the bracted twistflower (EO 35). This subunit contains the
essential physical and biological features of proximity to the
geological boundary, old-growth juniper-oak woodlands, and viable
native bee populations. Specific threats include juniper encroachment
into canopy gaps, white-tailed deer herbivory, infrequent wildfire,
off-trail recreational uses, and small population size. Special
management needed for the bracted twistflower within this subunit
includes white-tailed deer herd management and thinning of juniper
trees; if it can be conducted safely, management could include
prescribed burning. The primary management goals of this BCP unit are
to maintain and improve habitat for golden-cheeked warblers; to protect
karst species and other species of concern, including canyon mock-
orange (Philadelphus ernestii), a rare endemic shrub; and to protect
the watershed, water quantity, and water quality (City of Austin 2007b,
pp. 1-5). A secondary management goal is to provide safe public access
for outdoor recreation. Although the bracted twistflower is not
specifically included in the BCP management plan for Bull Creek
District Park, a small population was discovered there after the plan
was developed and is now monitored annually by the City of Austin
Wildland Conservation Division (City of Austin 2018).
Subunit 1c
Mount Bonnell Park (Covert Park at Mount Bonnell) is a 6.07-ac
(2.45-ha) conservation area owned and managed by the City of Austin
Parks and Recreation Department as a unit of the BCP system. We are
proposing to designate 2.00 ac (0.81 ha) of this BCP unit as occupied
critical habitat for the bracted twistflower (EO 9). This subunit
contains the essential physical and biological features of proximity to
the geological boundary, old-growth juniper-oak woodlands, and viable
native bee populations. Specific threats include juniper encroachment
into canopy gaps, white-tailed deer herbivory, infrequent wildfire,
off-trail recreational uses, and small population size. Special
management needed for the bracted twistflower within this subunit
includes white-tailed deer herd management and thinning of juniper
trees; if it can be conducted safely, management could include
prescribed burning. The primary management goal for the BCP acreage of
Mt. Bonnell is to protect and manage habitat for the bracted
twistflower (City of Austin 2007c, pp. 1-4). Management objectives
include stopping unauthorized foot traffic into the species' habitat;
conducting annual monitoring of the population; increasing the
population size; working with adjacent private landowners to protect
and manage the species; and removing nonnative, invasive vegetation.
The City of Austin Wildland Conservation Division monitors the Mount
Bonnell bracted twistflower population annually (City of Austin 2018).
This small population is a remnant of a much larger population that
extended onto adjacent private land and was subsequently lost to
residential development.
Subunit 1d
Ullrich Water Treatment Plant (Bee Creek Park) is a 95.42-ac
(38.61-ha) property owned and managed by the City of Austin Water
Utility. The Balcones Canyonlands Conservation Plan designated 17.7 ac
(7.16 ha) of this property as BCP Habitat Management Areas. We are
proposing to designate 29.92 ac (12.11 ha) of this BCP unit as occupied
critical habitat for the bracted twistflower (EO 7); the proposed
critical habitat area includes some undeveloped portions of the
property that were not included in the BCP Habitat Management Area
designation. This subunit contains the essential physical and
biological features of proximity to the geological boundary, old-growth
juniper-oak woodlands, protection from deer herbivory, and viable
native bee populations. Specific threats include juniper encroachment
into canopy gaps, infrequent wildfire, and small population size.
Special management needed for the bracted twistflower within this
subunit includes white-tailed deer herd management and thinning of
juniper trees; if it can be conducted safely, management could include
prescribed burning. The primary management goals are to protect and
maintain habitat for the golden-cheeked warbler, protect karst features
and monitor the Bee Creek Cave harvestman (Texella reddelli) and other
karst invertebrates, protect the population of bracted twistflower at
this site, and protect the Little Bee Creek watershed quality (City of
Austin 2007d, pp. 1-4). Austin Water Utility constructed a game fence
to protect the bracted twistflower population from deer browsing and
unauthorized public access. The City of Austin Wildland Conservation
Division monitors the Ullrich bracted twistflower population annually
(City of Austin 2018).
Unit 2: Central
Unit 2 consists of 537 ac (217 ha) of occupied habitat within Bexar
and Medina Counties in Texas. This unit is composed of four subunits,
which are described below.
Subunit 2a
Eisenhower Park is a 324-ac (131-ha) designated natural area in
Bexar County owned by the City of San Antonio and managed by San
Antonio Parks and Recreation Department (SAPRD). It is bounded on the
north by Camp Bullis Military Reservation. We are proposing
[[Page 62686]]
to designate 78.16 ac (31.63 ha) as occupied critical habitat for the
bracted twistflower at Eisenhower Park (EO 23). This subunit contains
the essential physical and biological features of proximity to the
geological boundary, old-growth juniper-oak woodlands, protection from
deer herbivory, tree and shrub canopy gaps, and viable native bee
populations. Specific threats include herbivory from white-tailed deer,
juniper encroachment into canopy gaps, infrequent wildfire, off-trail
recreational uses, and small population size. Special management needed
for the bracted twistflower within this subunit includes white-tailed
deer herd management and thinning of juniper trees; if it can be
conducted safely, management could include prescribed burning. One
population of bracted twistflower occurred on both sides of the
Eisenhower Park-Camp Bullis boundary; however, no individuals have been
observed on the Camp Bullis side for about 10 years. SAPRD monitors the
population at Eisenhower Park annually; additionally, SAPRD has
installed deer-fenced exclosures to prevent herbivory and has
selectively thinned the woody overstory to increase sunlight exposure
(Austin 2018, p. 10; Cozort 2019, p. 2). SAPRD currently proposes to
augment the population size and genetic diversity through propagation
and reintroduction (Cozort 2019).
Subunit 2b
Rancho Diana is a 1,148-ac (465-ha) natural area in Bexar County
acquired by the City of San Antonio through the City's 2005 Edwards
Aquifer Protection program. We are proposing to designate 395.73 ac
(160.15 ha) as occupied critical habitat for the bracted twistflower at
Rancho Diana (EO 31). This subunit contains the essential physical and
biological features of proximity to the geological boundary, old-growth
juniper-oak woodlands, protection from deer herbivory, tree and shrub
canopy gaps, and viable native bee populations. Specific threats
include herbivory from white-tailed deer, juniper encroachment into
canopy gaps, and infrequent wildfire. Special management needed for the
bracted twistflower within this subunit includes white-tailed deer herd
management and thinning of juniper trees; if it can be conducted
safely, management could include prescribed burning. This property is
managed by SAPRD, but currently is not open to the public. SAPRD
discovered a large population of bracted twistflower at Rancho Diana in
2010, and subsequently protected the population with a deer-fenced
exclosure; however, portions of the population extend beyond this
exclosure and are vulnerable to herbivory. SAPRD cleared the overstory
brush from small portions of the enclosed population in 2017 and 2019,
resulting in a large increase in the emergence and seed production of
bracted twistflowers within the cleared areas.
Subunit 2c
Laurel Canyon Ranch Conservation Easement is a private property in
Medina County owned by Laurel C. Canyon Ranch Limited Partnership, of
Houston, Texas. The City of San Antonio Edwards Aquifer Protection
Program holds a conservation easement on 549 ac (222 ha) of Laurel
Canyon Ranch (City of San Antonio and The Nature Conservancy 2016).
About 87 percent of the easement is within the Edwards Aquifer Recharge
Zone, and the conservation easement protects water quantity and quality
for the City of San Antonio. This subunit is not open to the public.
The largest known population of the bracted twistflower was documented
at this site in 2001 (Carr 2001; TXNDD 2018), and has been monitored
annually by SAPRD since 2018. We are proposing to designate 39.59 ac
(16.02 ha) as occupied critical habitat for the bracted twistflower at
the Laurel Canyon Ranch Conservation Easement (EO 25). This subunit
contains the essential physical and biological features of proximity to
the geological boundary, old-growth juniper-oak woodlands, tree and
shrub canopy gaps, and viable native bee populations. Specific threats
include herbivory from white-tailed deer, juniper encroachment into
canopy gaps, and infrequent wildfire. Special management needed for the
bracted twistflower within this subunit includes white-tailed deer herd
management and thinning of juniper trees; if it can be conducted
safely, management could include prescribed burning.
Subunit 2d
Medina River is a 722.81-ac (292.52-ha) tract of private property
in Medina County owned by Medina Ranch Inc. of San Antonio, Texas. A
population of about 1,000 bracted twistflowers was documented there in
April 2007 (TXNDD 2018). We are proposing to designate 23.28 ac (9.42
ha), located along bluffs overlooking the Medina River Diversion Lake,
as occupied critical habitat for the bracted twistflower (EO 18). This
subunit contains the essential physical and biological features of
proximity to the geological boundary, old-growth juniper-oak woodlands,
tree and shrub canopy gaps, and viable native bee populations. Specific
threats include herbivory from white-tailed deer, juniper encroachment
into canopy gaps, and infrequent wildfire. Special management needed
for the bracted twistflower within this subunit includes white-tailed
deer herd management and thinning of juniper trees; if it can be
conducted safely, management could include prescribed burning. This
subunit is not open to the public.
Unit 3: Southwest
Unit 3 consists of occupied habitat within Uvalde County, Texas.
Garner State Park was donated by local landowners to the State of Texas
in 1941, and is managed by TPWD. One population of bracted twistflower
persists at this very heavily visited, 1,786-ac (723-ha) State park. We
are proposing to designate 345.23 ac (139.71 ha) as occupied critical
habitat for the bracted twistflower at Garner State Park (EO 10). This
subunit contains the essential physical and biological features of
proximity to the geological boundary, old-growth juniper-oak woodlands,
tree and shrub canopy gaps, and viable native bee populations. Specific
threats include herbivory from white-tailed deer and introduced
ungulates, juniper encroachment into canopy gaps, off-trail
recreational uses of habitats, and infrequent wildfire. Special
management needed for the bracted twistflower within this subunit
includes white-tailed deer herd management and thinning of juniper
trees; if it can be conducted safely, management could include
prescribed burning.
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
[[Page 62687]]
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) If the amount or extent of
taking specified in the incidental take statement is exceeded; (2) if
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) if 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) if a new
species is listed or critical habitat designated that may be affected
by the identified action.
Application of the ``Destruction or Adverse Modification'' Standard
The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat as a
whole for the conservation of the listed species. As discussed above,
the role of critical habitat is to support physical or biological
features essential to the conservation of a listed species and provide
for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate 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 Service may, during a consultation under
section 7(a)(2) of the Act, consider likely to destroy or adversely
modify critical habitat include, but are not limited to, actions that
would disturb the soil or underlying rock strata, reduce the diversity
and abundance of native bees and bee-pollinated plant species, or
diminish the perched aquifers that supply seep moisture to bracted
twistflower habitats. Such activities could include, but are not
limited to, excavation of soil or underlying rock strata with
bulldozers, graders, back-hoes, or excavators within habitats;
application of insecticides that kill or impair native bees;
application of herbicides that kill or damage native bee-pollinated
plants; and displacement of native juniper-oak woodlands with surface
cover, such as pavement and buildings, that impede infiltration of
rainwater into the soil. These activities could deplete or destroy the
soil seed reserve of viable seeds of the bracted twistflower, diminish
the abundance of the species' pollinators and thereby reduce seed
production and gene flow, or alter the soil and hydrology so that it no
longer supports the germination, establishment, and reproduction of the
bracted twistflower.
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, 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
Department of Defense lands with a completed INRMP within the proposed
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 critical habitat if we determine
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless we determine, based
on the best scientific data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. In making the determination to exclude a particular area, the
statute on its face, as well as the legislative history, are clear that
the Secretary has broad
[[Page 62688]]
discretion regarding which factor(s) to use and how much weight to give
to any factor.
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. We describe below the process that we undertook for taking
into consideration each category of impacts and our analyses of the
relevant impacts.
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate the impacts that a specific critical habitat
designation may have on restricting or modifying specific land uses or
activities for the benefit of the species and its habitat within the
areas proposed. We then identify which conservation efforts may be the
result of the species being listed under the Act versus those
attributed solely to the designation of critical habitat for this
particular species. The probable economic impact of a proposed critical
habitat designation is analyzed by comparing scenarios both ``with
critical habitat'' and ``without critical habitat.''
The ``without critical habitat'' scenario represents the baseline
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource
users potentially affected by the designation of critical habitat
(e.g., under the Federal listing as well as other Federal, State, and
local regulations). Therefore, the baseline represents the costs of all
efforts attributable to the listing of the species under the Act (i.e.,
conservation of the species and its habitat incurred regardless of
whether critical habitat is designated). The ``with critical habitat''
scenario describes the incremental impacts associated specifically with
the designation of critical habitat for the species. The incremental
conservation efforts and associated impacts would not be expected
without the designation of critical habitat for the species. In other
words, the incremental costs are those attributable solely to the
designation of critical habitat, above and beyond the baseline costs.
These are the costs we use when evaluating the benefits of inclusion
and exclusion of particular areas from the final designation of
critical habitat should we choose to conduct a discretionary 4(b)(2)
exclusion analysis.
For this particular designation, we developed an incremental
effects memorandum (IEM) considering the probable incremental economic
impacts that may result from this proposed designation of critical
habitat. The information contained in our IEM was then used to develop
a screening analysis of the probable effects of the designation of
critical habitat for the bracted twistflower (IEc. 2020, entire). We
began by conducting a screening analysis of the proposed designation of
critical habitat in order to focus our analysis on the key factors that
are likely to result in incremental economic impacts. The purpose of
the screening analysis is to filter out particular geographic areas of
critical habitat that are already subject to such protections and are,
therefore, unlikely to incur incremental economic impacts. In
particular, the screening analysis considers baseline costs (i.e.,
absent critical habitat designation) and includes any probable
incremental economic impacts where land and water use may already be
subject to conservation plans, land management plans, best management
practices, or regulations that protect the habitat area as a result of
the Federal listing status of the species. 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 proposed 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 constitute what we consider to be our
draft economic analysis (DEA) of the proposed critical habitat
designation for the bracted twistflower; our DEA is summarized in the
narrative below.
Executive Orders (EOs) 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 EO regulatory analysis requirements, our effects analysis
under the Act may take into consideration impacts to both directly and
indirectly affected entities, where practicable and reasonable. If
sufficient data are available, we assess to the extent practicable the
probable impacts to both directly and indirectly affected entities. As
part of our screening analysis, we considered the types of economic
activities that are likely to occur within the areas likely affected by
the critical habitat designation. In our evaluation of the probable
incremental economic impacts that may result from the proposed
designation of critical habitat for the bracted twistflower, first we
identified, in the IEM dated October 8, 2020, probable incremental
economic impacts associated with potential activities based upon our
knowledge of future projects and past consultations. Critical habitat
designation generally will not affect activities that do not have any
Federal involvement; under the Act, a designation of critical habitat
only affects activities conducted, funded, permitted, or authorized by
Federal agencies. If we list the species, in areas where the bracted
twistflower is present, Federal agencies would be required to consult
with the Service under section 7 of the Act on activities they fund,
permit, or implement that may affect the species. If, when we list the
species, we also finalize this proposed critical habitat designation,
our consultation would include an evaluation of measures to avoid the
destruction or adverse modification of critical habitat.
In our IEM, we attempted to clarify the distinction between the
effects that would 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 the
bracted twistflower's critical habitat. Because the designation of
critical habitat for the bracted twistflower was proposed concurrently
with the listing, it has been our experience that it is more difficult
to discern which conservation efforts are attributable to the species
being listed and those which will result solely from the designation of
critical habitat. However, the following specific circumstances in this
case help to inform our evaluation: (1) The essential physical or
biological features identified for critical habitat are the
[[Page 62689]]
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 the bracted twistflower would also likely
adversely affect the essential physical or biological features of
critical habitat. The IEM outlines our rationale concerning this
limited distinction between baseline conservation efforts and
incremental impacts of the designation of critical habitat for this
species. This evaluation of the incremental effects has been used as
the basis to evaluate the probable incremental economic impacts of this
proposed designation of critical habitat.
The proposed critical habitat designation for the bracted
twistflower consists of approximately 1,607 ac (650 ha) of occupied
habitat within three units. Unit 1 (Northeast) contains four subunits
totaling 724.74 ac (293.30 ha), all owned by the City of Austin. Unit 2
(Central) contains four subunits totaling 536.79 ac (217.22 ha); two
subunits are owned by the City of San Antonio, and two are privately
owned. Unit 3 (Southwest) contains 345.23 ac (139.71 ha) that are
within Garner State Park and managed by Texas Parks and Wildlife
Department.
All proposed critical habitat units are occupied by the species;
therefore, any activities with a Federal nexus in the proposed critical
habitat area that may affect the species would be subject to section 7
consultation regardless of whether critical habitat is designated. 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 the bracted twistflower. As a result, critical habitat is
not expected to result in additional consultations beyond those
required due to the presence of the species. Therefore, only
administrative costs are expected within the proposed critical habitat
designation. While this additional analysis will require time and
resources by both the Federal action agency and the Service, it is
believed that these costs would predominantly be administrative in
nature and would not be significant. The entities most likely to incur
incremental costs are parties to section 7 consultations, including
Federal action agencies, State agencies or municipalities, and, in some
cases, third parties.
Overall, future consultation activity within the proposed critical
habitat area is likely to be very limited, but may include the
following categories: (1) Land restoration of enhancement; (2)
agriculture; (3) development; (4) transmission line construction; (5)
oil or gas pipelines; (6) transportation; and (7) stream modification.
The majority (99 percent) of the proposed critical habitat area is
within protected areas and conservation lands. The consultation history
indicates that few projects and activities have occurred within
critical habitat and within the broader range of the species over the
past 9 years. Future consultations within the proposed critical habitat
units are anticipated to range from zero to 0.1 formal consultations
per year, 0.1 to 0.4 informal consultations per year, and zero to 0.9
technical assistance efforts per year. Based on the average annual rate
of consultations, the incremental administrative costs of consultation
for the proposed critical habitat units may range from $280 to $2,100
in an average year (IEc 2020, p. 15).
We are soliciting data and comments from the public on the DEA
discussed above, as well as on all aspects of this proposed rule and
our required determinations.
During the development of a final designation, we will consider the
information presented in the DEA and any additional information on
economic impacts we receive during the public comment period to
determine whether any specific areas should be excluded from the final
critical habitat designation under authority of section 4(b)(2) and our
implementing regulations at 50 CFR 17.90. If we receive credible
information regarding the existence of a meaningful economic or other
relevant impact supporting a benefit of exclusion, we will conduct an
exclusion analysis for the relevant area or areas. We may also exercise
the discretion to evaluate any other particular areas for possible
exclusion. Furthermore, when we conduct an exclusion analysis based on
impacts identified by experts in, or sources with firsthand knowledge
about, impacts that are outside the scope of the Service's expertise,
we will give weight to those impacts consistent with the expert or
firsthand information unless we have rebutting information. We may
exclude an area from critical habitat if we determine that the benefits
of excluding the area outweigh the benefits of including the area,
provided the exclusion will not result in the extinction of this
species. We may exclude an area from critical habitat if we determine
that the benefits of excluding the area outweigh the benefits of
including the area, provided the exclusion will not result in the
extinction of this species.
Consideration of National Security Impacts
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
[[Page 62690]]
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.
Under section 4(b)(2) of the Act, we also consider whether where a
national-security or homeland-security impact might exist on lands not
owned or managed by DoD or DHS. In preparing this proposal, we have
determined that, other than the land exempted under section
4(a)(3)(B)(i) of the Act based upon the existence of an approved INRMP
(see Exemptions, above), the lands within the proposed designation of
critical habitat for the bracted twistflower are not owned or managed
by DoD or DHS. Therefore, we anticipate no impact on national security.
However, if through the public comment period we receive credible
information regarding impacts on national security or homeland security
from designating particular areas as critical habitat, then as part of
developing the final designation of critical habitat, we will conduct a
discretionary exclusion analysis to determine whether to exclude those
areas under authority of section 4(b)(2) and our implementing
regulations at 50 CFR 17.90.
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 discussed above. We consider a number of factors including
whether there are permitted conservation plans covering the species in
the area such as HCPs, safe harbor agreements (SHAs), or candidate
conservation agreements with assurances (CCAAs), or whether there are
non-permitted conservation agreements and partnerships that would be
encouraged by designation of, or exclusion from, critical habitat. In
addition, we look at the existence of Tribal conservation plans and
partnerships and consider the government-to-government relationship of
the United States with Tribal entities. We also consider any social
impacts that might occur because of the designation. No Tribal lands
are included in the critical habitat designation for the bracted
twistflower.
We are not considering any exclusions at this time from the
proposed designation under section 4(b)(2) of the Act based on
partnerships, management, or protection afforded by cooperative
management efforts. When analyzing the benefits of including or
excluding particular areas covered by conservation plans, agreements,
or partnerships permitted under section 10 of the Act, we consider
whether the species for which critical habitat is being designated is a
covered species in the conservation plan or agreement and whether the
conservation plan or agreement specifically addressed the habitat of
the species (50 CFR 17.90(3)). Within the proposed critical habitat
units, there is currently one HCP being implemented, the Balcones
Canyonlands Preserve HCP; however, this HCP does not include the
bracted twistflower. Rather, the HCP explicitly states that the bracted
twistflower will not be adequately protected by the plan (BCP 1996, pp.
7, 9). Here, the bracted twistflower does have similar habitat
requirements to those species covered by the Balcones Canyonlands
Preserve HCP, but the HCP specifically states that several of those
habitats will be destroyed by the actions taken in the HCP's planning
area. Accordingly, the HCP does not adequately address the habitat of
the bracted twistflower or meet its conservation needs in its planning
area, and, therefore, the HCP's covered area should not be considered
for exclusion here.
We also analyze the benefits of including or excluding particular
areas covered by conservation plans, agreements, or partnerships that
have not been authorized by a permit under section 10 of the Act (50
CFR 17.90(4)). A non-binding, non-obligatory memorandum of agreement
(MOA) to work cooperatively at efforts to conserve the bracted
twistflower between the Service, Texas Parks and Wildlife Department,
City of Austin, Travis County, Lower Colorado River Authority, and the
Ladybird Johnson Wildflower Center was entered into in 2004. When
analyzing the benefits of including or excluding these areas, we
analyze the degree to which the plan or agreement provides for the
conservation of the physical or biological features that are essential
to the conservation of the species (50 CFR 17.90(4)(vi)). The MOA has
benefited conservation of the bracted twistflower, but does not address
all of the species' essential physical and biological features;
specifically, it does not address encroachment and competition from
Ashe juniper. Scientific studies that revealed the species' requirement
for exposure to direct sunlight were not published until after the MOA
was finalized in 2004 (Fowler 2010, pp. 1-18; Leonard 2010, pp. 1-86;
Ramsey 2010, pp. 1-35; Leonard and Van Auken 2013, pp. 276-285).
Consequently, the critical habitat designation would enhance ongoing
conservation efforts, and the potential benefit of exclusion does not
outweigh the benefit of inclusion.
We have not identified any areas to consider for exclusion from
critical habitat based on other relevant impacts. However, during the
development of a final designation, we will consider all information
currently available or received during the public comment period. If we
receive credible information regarding the existence of a meaningful
impact supporting a benefit of excluding any areas, we will undertake
an exclusion analysis and determine whether those areas should be
excluded from the final critical habitat designation under the
authority of section 4(b)(2) and our implementing regulations at 50 CFR
17.90. We may also exercise the discretion to undertake exclusion
analyses for other areas as well, and we will describe all of our
exclusion analyses as part of a final critical habitat determination.
Summary of Exclusions Considered Under 4(b)(2) of the Act
At this time we are not considering any exclusions from the
proposed designation based on economic impacts, national security
impacts, or other relevant impacts--such as partnerships, management,
or protection afforded by cooperative management efforts--under section
4(b)(2) of the Act. Some areas within the proposed designation are
included in Balcones Canyonlands Preserve HCP and within a memorandum
of agreement (MOA) between the Service, Texas Parks and Wildlife
Department, City of Austin, Travis County, Lower Colorado River
Authority, and the Ladybird Johnson Wildflower Center. In this proposed
rule, we are seeking credible information from the public regarding the
existence of a meaningful impact supporting a benefit of excluding any
areas that would be used in an exclusion analysis that may result in
the exclusion of areas from the final critical habitat designation.
(Please see ADDRESSES for instructions on how to submit comments).
[[Page 62691]]
Required Determinations
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this rule is not
significant.
Executive Order 13563 reaffirms the principles of EO 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. EO 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 proposed rule in a manner
consistent with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service 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 whether 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 would be directly
regulated if we adopt the proposed 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 would be directly
regulated by this rulemaking, the Service certifies that, if made final
as proposed, the proposed critical habitat designation will not have a
significant economic impact on a substantial number of small entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if made final, the proposed
critical habitat designation would not have a significant economic
impact on a substantial number of small business entities. Therefore,
an initial regulatory flexibility analysis is not required.
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 this
proposed critical habitat designation would significantly affect energy
supplies, distribution, or use. 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 finding:
(1) This proposed rule would not produce a Federal mandate. In
general, a Federal mandate is a provision in legislation, statute, or
regulation that would impose an enforceable duty upon State, local, or
Tribal governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments'' with two
exceptions. It excludes ``a condition of Federal
[[Page 62692]]
assistance.'' It also excludes ``a duty arising from participation in a
voluntary Federal program,'' unless the regulation ``relates to a then-
existing Federal program under which $500,000,000 or more is provided
annually to State, local, and Tribal governments under entitlement
authority,'' if the provision would ``increase the stringency of
conditions of assistance'' or ``place caps upon, or otherwise decrease,
the Federal Government's responsibility to provide funding,'' and the
State, local, or Tribal governments ``lack authority'' to adjust
accordingly. At the time of enactment, these entitlement programs were:
Medicaid; Aid to Families with Dependent Children work programs; Child
Nutrition; Food Stamps; Social Services Block Grants; Vocational
Rehabilitation State Grants; Foster Care, Adoption Assistance, and
Independent Living; Family Support Welfare Services; and Child Support
Enforcement. ``Federal private sector mandate'' includes a regulation
that ``would impose an enforceable duty upon the private sector, except
(i) a condition of Federal assistance or (ii) a duty arising from
participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule would significantly or
uniquely affect small governments because the lands being proposed for
critical habitat designations are primarily owned by the cities of
Austin and San Antonio or the State of Texas and none of these
government entities fits the definition of ``small governmental
jurisdiction.'' Therefore, a Small Government Agency Plan is not
required.
Takings--Executive Order 12630
In accordance with EO 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for the bracted twistflower 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
for the proposed designation of critical habitat for the bracted
twistflower, and it concludes that, if adopted, this designation of
critical habitat does not pose significant takings implications for
lands within or affected by the designation.
Federalism--Executive Order 13132
In accordance with EO 13132 (Federalism), this proposed rule does
not have significant Federalism effects. A federalism summary impact
statement is not required. In keeping with Department of the Interior
and Department of Commerce policy, we requested information from, and
coordinated development of this proposed critical habitat designation
with, appropriate State resource agencies. 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 proposed rule does
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 proposed 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 for 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) of the Act would be required. While
non-Federal entities that receive Federal funding, assistance, or
permits, or that otherwise require approval or authorization from a
Federal agency for an action, may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule would not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We have proposed designating
critical habitat in accordance with the provisions of the Act. To
assist the public in understanding the habitat needs of the species,
this proposed rule identifies the physical or biological features
essential to the conservation of the species. The proposed areas of
critical habitat are presented on maps, and the proposed rule provides
several options for the interested public to obtain more detailed
location information, if desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not
required. We may not conduct or sponsor and you are not required to
respond to a collection of information unless it displays a currently
valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses
[[Page 62693]]
pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
et seq.) in connection with regulations adopted pursuant to section
4(a) of the Act. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244). This position was upheld by the U.S. Court of Appeals for the
Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995),
cert. denied 516 U.S. 1042 (1996)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes. We have determined that no Tribal
lands fall within the boundaries of the proposed critical habitat for
the bracted twistflower, so no Tribal lands would be affected by the
proposed designation.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at <a href="http://www.regulations.gov">http://www.regulations.gov</a> and upon request from the
Austin Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).
Authors
The primary authors of this proposed rule are the staff members of
the Fish and Wildlife Service's Species Assessment Team and the Austin
Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend 50 CFR part 17 as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
unless otherwise noted.
0
2. Amend Sec. 17.12(h) by adding an entry for ``Streptanthus
bracteatus'' 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 and
Scientific name Common name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
Flowering Plants
* * * * * * *
Streptanthus bracteatus......... bracted twistflower Wherever found..... T [Federal Register
citation when published
as a final rule]; 50
CFR 17.73(i); \4d\ 50
CFR 17.96(a).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.73, as proposed to be amended at 85 FR 58224
(September 17, 2020), 85 FR 61684 (September 30, 2020), 85 FR 66906
(October 21, 2020), 86 FR 3976 (January 15, 2021), 86 FR 33159 (June
24, 2021), and 86 FR 37091 (July 14, 2021), by adding paragraphs (h)
and (i) to read as follows:
Sec. 17.73 Special rules--flowering plants.
* * * * *
(h) [Reserved]
(i) Streptanthus bracteatus (bracted twistflower). (1)
Prohibitions. The following prohibitions that apply to endangered
plants also apply to the bracted twistflower. Except as provided under
paragraph (i)(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) Import or export, as set forth at Sec. 17.61(b) for endangered
plants.
(ii) Remove and reduce to possession from areas under Federal
jurisdiction; maliciously damage or destroy the species on any such
area; or remove, cut, dig up, or damage or destroy the species on any
other area in knowing violation of any law or regulation of any State
or in the course of any violation of a State criminal trespass law.
(iii) Interstate or foreign commerce in the course of commercial
activity, as set forth at Sec. 17.61(d) for endangered plants.
(iv) Sale or offer for sale, as set forth at Sec. 17.61(e) for
endangered plants.
(2) Exceptions from prohibitions. In regard to this species, you
may:
(i) Conduct activities as authorized by a permit under 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
bracted twistflower that are covered by an approved cooperative
agreement to carry out conservation programs.
(iii) Engage in any act prohibited under paragraph (i)(1) of this
section with seeds of cultivated specimens, provided that a statement
that the seeds are of ``cultivated origin'' accompanies the seeds or
their container.
* * * * *
0
4. Amend Sec. 17.96(a) by adding an entry for ``Family Brassicaceae:
Streptanthus bracteatus (bracted twistflower)'' in alphabetical order
to read as follows:
Sec. 17.96 Critical habitat--plants.
(a) * * *
Family Brassicaceae: Streptanthus bracteatus (bracted twistflower)
(1) Critical habitat units are depicted for Bexar, Medina, Travis,
and Uvalde Counties, Texas, on the maps in this entry.
[[Page 62694]]
(2) Within these areas, the physical or biological features
essential to the conservation of the bracted twistflower consist of the
following components:
(i) Karstic, dolomitic limestones underlain by less permeable
limestone strata, where perched aquifers seep to the surface along
slopes. These are often found within 2 kilometers of the exposed
boundary of the Edwards or Devils River and Glen Rose geological
formations;
(ii) Native, old-growth juniper-oak woodlands and shrublands along
the Balcones Escarpment;
(iii) Herbivory from white-tailed deer and introduced ungulates of
such low intensity that it does not severely deplete populations prior
to seed dispersal;
(iv) Tree and shrub canopy gaps that allow direct sunlight to reach
the herbaceous plant layer at least 6 hours per day; and
(v) Viable populations of native bee species and the abundant,
diverse forb and shrub understory that support them.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
the effective date of this rule.
(4) Data layers defining map units were created using U.S.
Geologic
[…truncated; see source link]Indexed from Federal Register on November 10, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.