Proposed Rule2022-02298
Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Tiehm's Buckwheat
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 3, 2022
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), propose to designate critical habitat for the Tiehm's buckwheat (Eriogonum tiehmii), which the Service has proposed to list as endangered under the Endangered Species Act of 1973, as amended (Act). In total, we propose to designate approximately 910 acres (368 hectares) in one unit in Nevada as critical habitat for Tiehm's buckwheat. We also announce the availability of a draft economic analysis of the proposed critical habitat designation.
Full Text
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[Federal Register Volume 87, Number 23 (Thursday, February 3, 2022)]
[Proposed Rules]
[Pages 6101-6118]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-02298]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2020-0017; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BF94
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Tiehm's Buckwheat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
designate critical habitat for the Tiehm's buckwheat (Eriogonum
tiehmii), which the Service has proposed to list as endangered under
the Endangered Species Act of 1973, as amended (Act). In total, we
propose to designate approximately 910 acres (368 hectares) in one unit
in Nevada as critical habitat for Tiehm's buckwheat. We also announce
the availability of a draft economic analysis of the proposed critical
habitat designation.
DATES: We will accept comments received or postmarked on or before
April 4, 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 March 21, 2022.
ADDRESSES: Written comments: You may submit comments by one of the
following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://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-R8-ES-2020-0017, 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.
[[Page 6102]]
We will post all comments on <a href="https://www.regulations.gov">https://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: The coordinates or plot
points or both from which the critical habitat maps are generated are
included in the decision file and are available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No. FWS-R8-ES-2020-0017. Any
additional supporting information that we developed for this critical
habitat designation will be available at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Marc Jackson, Field Supervisor, U.S.
Fish and Wildlife Service, Reno Ecological Services Field Office, 1340
Financial Boulevard, Suite 234, Reno, NV 89502; telephone 775-861-6337.
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, when we determine
that any species is an endangered or threatened species, we are
required to designate critical habitat, to the maximum extent prudent
and determinable. Designations of critical habitat can be completed
only by issuing a rule.
What this document does. This document proposes to designate
critical habitat for Tiehm's buckwheat, which the Service has proposed
to list as an endangered species under the Act, in a portion of
Esmeralda County, Nevada.
The basis for our action. Under section 4(a)(3) of the Act, if we
determine that a species is an endangered or threatened species we
must, to the maximum extent prudent and determinable, designate
critical habitat. 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 in accordance with the provisions of
section 4 of the Act, 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 in accordance with the provisions of
section 4 of the Act, 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. The Secretary may exclude an area from the
critical habitat designation 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 will result in
the extinction of the species.
Abbreviations and Acronyms Used in This Proposed Rule
For the convenience of the reader, a list of the abbreviations and
acronyms used in this proposed rule follows:
Act = Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), as
amended
BIA = Bureau of Indian Affairs
BLM = Bureau of Land Management
CBD = Center for Biological Diversity
CFR = Code of Federal Regulations
DEA = draft economic analysis
DoD = Department of Defense
FLPMA = Federal Land Policy and Management Act (43 U.S.C. 1701 et
seq.)
FR = Federal Register
HCP = habitat conservation plan
IEc = Industrial Economics, Incorporated
IEM = incremental effects memorandum
INRMP = integrated natural resources management plan
Ioneer = Ioneer USA Corporation
NDF = Nevada Division of Forestry
NDNH = Nevada Division of Natural Heritage
NDOW = Nevada Department of Wildlife
NEPA = National Environmental Policy Act (42 U.S.C. 4321 et seq.)
RMP = resource management plan
Service = U.S. Fish and Wildlife Service
SSA = species status assessment
UNR = University of Nevada, Reno
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other concerned governmental agencies,
Native American Tribes, the scientific community, industry, or any
other interested parties concerning this proposed rule.
We particularly seek comments concerning:
(1) 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.
(2) Specific information on:
(a) The amount and distribution of habitat for Tiehm's buckwheat;
(b) What areas, that were occupied at the time of proposed listing
(86 FR 55775; October 7, 2021) and that contain the physical and
biological feature essential to the conservation of the species and
which may require special management considerations or protection,
should be included in the designation and why;
(c) Any additional areas occurring within the range of the species
(Esmeralda County, Nevada), 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 protections that may be
needed in critical habitat areas we are proposing; and
(e) What areas not occupied at the time of proposed 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 the physical and biological
feature essential to the conservation of the species; and
(iii) Explaining whether or not unoccupied areas fall within the
definition of ``habitat'' at 50 CFR 424.02 and why.
[[Page 6103]]
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(4) Information on the projected and reasonably likely impacts of
climate change on Tiehm's buckwheat proposed critical habitat.
(5) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation, and the benefits of including or excluding specific areas.
(6) Information on the extent to which the description of probable
economic impacts in the draft economic analysis (DEA) is a reasonable
estimate of the likely economic impacts and any applicable additional
information.
(7) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act; whether the benefits of potentially excluding any
specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act; and, in particular, whether any areas
should be considered for exclusion under section 4(b)(2) of the Act
based on a conservation program or plan, and why. These may include
Federal, lands with permitted conservation plans covering the species
in the area such as conservation easements, or non-permitted
conservation agreements and partnerships that are under development.
Detailed information regarding these plans, agreements, easements, and
partnerships is also requested, including:
(a) The location and size of lands covered by the plan, agreement,
easement, or partnership;
(b) The duration of the plan, agreement, easement, or partnership;
(c) Who holds or manages the land;
(d) What management activities are conducted;
(e) What land uses are allowable; and
(f) If management activities are beneficial to Tiehm's buckwheat
and its habitat.
(8) 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. If you
request the exclusion of any areas from the final designation, please
provide credible information regarding the existence of a meaningful
economic or other relevant impact supporting the benefit of exclusion
of that particular area. Also, 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)(2) of the Act
directs that the Secretary shall designate critical habitat on the
basis of the best scientific information 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="https://www.regulations.gov">https://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="https://www.regulations.gov">https://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="https://www.regulations.gov">https://www.regulations.gov</a>.
Because we will consider all comments and information we receive
during the comment period, our final determination may differ from this
proposal. Based on the new information we receive (and any comments on
that new information), our final critical habitat 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.
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
It is our intent to discuss only those topics directly relevant to
the designation of critical habitat for Tiehm's buckwheat in this
document. For more information on the species, general information
about Tiehm's buckwheat habitat, and previous Federal actions
associated with listing Tiehm's buckwheat, refer to the 12-month
finding published in the Federal Register on June 4, 2021 (86 FR
29975), the proposed listing rule published in the Federal Register on
October 7, 2021 (86 FR 55775), and associated supporting documents
available online at <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No. FWS-
R8-ES-2020-0017.
Supporting Documents
The Service prepared a species status assessment (SSA) report
(Service 2021a, entire), 12-month finding (86 FR 29975; June 4, 2021),
and proposed listing rule (86 FR 55775; October 7, 2021) for Tiehm's
buckwheat. The science provided in the SSA report, 12-month finding,
and the proposed listing rule is the basis for this proposed critical
habitat rule. The SSA report, 12-month finding, and proposed listing
rule represent a compilation of the best scientific and commercial data
available regarding a full status assessment of the species, including
past, present, and future impacts (both negative and beneficial)
affecting the species. The SSA report underwent independent peer review
by scientists with expertise in botany, rare plant conservation, and
plant ecology. The Service also sent the SSA report to three partner
agencies, the Nevada Division of Forestry (NDF), the Nevada Division of
Natural Heritage (NDNH), and the Bureau of Land Management (BLM), for
review. We received comments from NDNH and BLM. Comments we received
during peer and partner review were considered and incorporated into
our SSA report.
Additionally, a team of Service biologists, in consultation with
other species experts, collected and analyzed the best available
information (including the information presented in the SSA report and
proposed listing rule) to support this proposed critical habitat
designation. As such, the science used and presented in this proposed
rule represents a compilation of the best scientific information
available.
In accordance with our joint policy on peer review published in the
Federal
[[Page 6104]]
Register on July 1, 1994 (59 FR 34270), and our August 22, 2016,
memorandum updating and clarifying the role of peer review of listing
actions under the Act, we are seeking the expert opinions of at least
three appropriate specialists regarding the science that informs this
proposed rule. The purpose of peer review is to ensure that the science
behind our critical habitat designation is based on scientifically
sound data, assumptions, and analyses. We will consider any comments we
receive, as appropriate, before making a final agency determination.
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 provisions of
section 4 of 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 in accordance with the provisions of
section 4 of the Act, 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,'' for the purposes of
designating critical habitat only, as 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.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not 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 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 an SSA report, listing rule, and other 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, if one has been developed; articles in
peer-reviewed journals; conservation plans developed by States and
counties; scientific status surveys and studies; biological
assessments; other unpublished materials; or experts' opinions or
personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat
[[Page 6105]]
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, may 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 (i.e., if new information sufficiently justifies the
proposed conservation effort).
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.
There is currently no imminent threat of overutilization for
commercial, recreational, scientific, or educational purposes (see 16
U.S.C. 1533(a)(1)(B)) identified for Tiehm's buckwheat, and
identification and mapping of critical habitat is not expected to
initiate any such threat. Threats of illegal collection or other human
activity are not expected to increase due to the identification of
critical habitat. Habitat impacts are a threat to the species, as noted
in the proposed listing determination for Tiehm's buckwheat (86 FR
55775; October 7, 2021), and these impacts are from causes that can be
addressed through management actions resulting from consultations under
section 7(a)(2) of the Act. The species occurs solely within the United
States, and available habitat, particularly those areas that meet the
definition of critical habitat, provides significant conservation
value.
Overall, our analysis of the best available scientific and
commercial information indicates there are areas within the range of
Tiehm's buckwheat that meet the definition of critical habitat.
Therefore, because none of the circumstances listed 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 for Tiehm's buckwheat is prudent.
Critical Habitat Determinability
Having determined that designation is prudent, under section
4(a)(3) of the Act we must find whether critical habitat for Tiehm's
buckwheat 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 the species is
located. This and other information represent the best scientific data
available and led us to conclude that the designation of critical
habitat is determinable for Tiehm's buckwheat.
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 critical
habitat from within the geographical area occupied 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, alkali soil
for seed germination, protective cover for migration, or susceptibility
to flooding or fire that maintains necessary early-successional habitat
characteristics. Biological features might include prey species, forage
grasses, specific kinds or ages of trees for roosting or nesting,
symbiotic fungi, or a particular level of nonnative species consistent
with conservation needs of the listed species. The features may also be
combinations of habitat characteristics and may encompass the
relationship between characteristics or the necessary amount of a
characteristic essential to support the life history of the species.
In considering whether features are essential to the conservation
of the
[[Page 6106]]
species, the Service may consider an appropriate quality, quantity, and
spatial and temporal arrangement of habitat characteristics in the
context of the life-history needs, condition, and status of the
species. These characteristics include, but are not limited to: (1)
Space for individual and population growth and for normal behavior; (2)
food, water, air, light, minerals, or other nutritional or
physiological requirements; (3) cover or shelter; (4) sites for
breeding, reproduction, or rearing (or development) of offspring; and
(5) habitats that are protected from disturbance or are representative
of the historic geographical and ecological distributions of a species.
Using the species' habitat, ecology, and life history, which are
summarized below and are described more fully in the proposed listing
rule (86 FR 55775; October 7, 2021) and the SSA report (Service 2021a,
entire) that was developed to supplement the proposed listing rule,
which are available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No.
FWS-R8-ES-2020-0017, we considered the following habitat
characteristics to derive the specific physical or biological features
essential for the conservation of Tiehm's buckwheat.
Habitat Characteristics
Tiehm's buckwheat occurs between 5,906 and 6,234 feet (ft) (1,800
and 1,900 meters (m)) in elevation and on all aspects with slopes
ranging from 0 to 50 degrees (Ioneer 2020a, p. 5; Morefield 1995, p.
11). The species occurs on dry, upland sites, subject only to
occasional saturation by rain and snow, and is not found in association
with free surface or subsurface waters (Morefield 1995, p. 11). Tiehm's
buckwheat dominates the sparsely vegetated community in which it
occurs, resulting in an open plant community with low plant cover and
stature (Morefield 1995, p. 12). The vegetation varies from pure stands
of Tiehm's buckwheat to sparse associations with a few other low-
growing herbs and grass species, suggesting the species is not shade-
tolerant and requires direct sunlight. The most common associates of
Tiehm's buckwheat are species found in salt desert shrubland
communities such as shadscale saltbush (Atriplex confertifolia), James'
galleta (Hilaria jamesii), and alkali sacaton (Sporobolus airoides)
(Morefield 1995, p. 12).
Like most terrestrial plants, Tiehm's buckwheat requires soil for
physical support and as a source of nutrients and water. Tiehm's
buckwheat is restricted to dry, open, relatively barren, light-colored,
rocky clay soils derived from an uncommon formation of interbedded
claystones, shales, tuffaceous sandstones, and limestones (Ioneer
2020a, p. 5; Morefield 1995, p. 10). The soils are poor, with little
development, lack an A horizon (top layer of mineral soil horizons),
and are full of broken pieces of the parent bedrock (Ioneer 2020a, p.
5; Morefield 1995, p. 11). Soils are characterized by a variety of
textures, and include clay soils, sandy clay loams, sandy loams, and
loams (McClinton et al. 2020, p. 29). This specialized substrate is
called channery soil, which consists of 15 to 35 percent thin, flat
fragments of sandstone, shale, slate, limestone, or schist (United
States Department of Agriculture (USDA) 2015, p. 7).
Tiehm's buckwheat is distributed on these soils along an outcrop of
lithium clay in exposed former lake beds (Ioneer 2020a, p. 5). Soil pH
ranges from 7.64 to 8.76 (Ioneer 2020a, p. 6). Initial soil sample
analyses demonstrate that boron and carbonates were commonly present at
excessive levels and that sulfur, calcium, and potassium were commonly
present at high levels (Ioneer 2020a, p. 6). Further analyses indicate
that soils occupied by Tiehm's buckwheat have on average extremely low
phosphorus, low nitrogen, high boron, and high pH (McClinton et al.
2020, p. 35). There were significant differences in soil
characteristics between soils occupied and unoccupied by Tiehm's
buckwheat, including potassium, zinc, sulfur, and magnesium, which were
on average lower in occupied soils, and boron, silt, bicarbonate, and
pH, which were, on average, higher, although there was variation among
subpopulations and adjacent, unoccupied sites (McClinton et al. 2020,
pp. 35, 53). For example, boron was higher in Tiehm's buckwheat
subpopulations 1, 2, and 3 than in subpopulations 4, 5, 6, 7, and 8
(Shams et al. 2021, pp. 4-5; McClinton et al. 2020, p. 30). Taking all
soil components into consideration as well as results of greenhouse
propagation experiments (McClinton et al. 2020, p. 36), there is a
unique envelope of soil conditions in which Tiehm's buckwheat thrives
that is different from adjacent unoccupied soils (Service 2021a, pp.
16-18).
Tiehm's buckwheat is a perennial plant species that is not
rhizomatous or otherwise clonal. Therefore, like other buckwheat
species, reproduction in Tiehm's buckwheat is presumed to occur via
sexual means (i.e., seed production and recruitment). As with most
plant species, Tiehm's buckwheat does not require separate sites for
reproduction other than the locations in which parent plants occur and
any area necessary for pollinators and seed dispersal. The primary seed
dispersal agents of Tiehm's buckwheat are probably gravity, wind, and
water (Morefield 1995, p. 14). Upon maturation of the fruit, seeds are
likely to fall to the ground in the immediate vicinity of the parent
plant, becoming lodged in the soil surface (Ioneer 2020a, p. 4). The
number of seeds produced by individual Tiehm's buckwheat plants is
variable with research demonstrating it can range anywhere from 50 to
450 seeds per plant (Service 2021a, pp. 15-16; McClinton et al. 2020,
p. 22). We have no information on the longevity and viability of
Tiehm's buckwheat seed in the soil seed bank (i.e., natural storage of
seeds within the soil of ecosystems) or what environmental cues are
needed to trigger germination. However, many arid plants possess seed
dormancy, enabling them to delay germination until receiving necessary
environmental cues (Jurado and Flores 2005, entire; Pake and Venable
1996, pp. 1432-1434).
Buckwheat, in general, are sexual reproducers and insects are the
most common pollinators (Gucker and Shaw 2019, pp. 5-6). Some studies
have shown that buckwheat flowers can be pollinated by everything from
beeflies and closely related spider predators (the Acroceridea
(Cyrtidae)) to specialist pollinators, while other buckwheat species
are also capable of self-pollination (Neel and Ellstrand 2003, p. 339;
Archibald et al. 2001, p. 612; Moldenke 1976, pp. 20-25). Primary
pollinators and insect visitors (insects that visit a plant to feed on
pollen, nectar, or other flower parts, but may not necessarily play a
role in pollination) to Tiehm's buckwheat include bees, wasps, beetles,
and flies, and have an abundance and diversity exceptionally high for a
plant community dominated by a single plant species (Service 2021a, p.
16; McClinton et al. 2020, pp. 11-22).
Successful transfer of pollen among Tiehm's buckwheat
subpopulations may be inhibited if subpopulations are separated by
distances greater than pollinators can travel and/or a pollinator's
nesting or foraging habitat and behavior is negatively affected
(Dorchin et al. 2013, entire; BLM 2012, p. 2; Cranmer et al. 2012, p.
562). Flight distances are generally correlated with body size in bees;
larger bees are able to fly farther than smaller bees (Greenleaf et al.
2007, pp. 592-594; Gathmann and Tscharntke 2002, entire). There is
evidence to suggest that larger bees, which are able to fly longer
distances, do not need their habitat to remain contiguous, but it is
more important that
[[Page 6107]]
the protected habitat is large enough to maintain floral diversity (BLM
2012, p. 18). While researchers have reported long foraging distance
for solitary bees, the majority of individuals remain close to their
nest, thus foraging distance tends to be 1,640 ft (500 m) or less
(Antoine and Forrest 2021, p. 152; Danforth et al. 2019, p. 207; BLM
2012, p. 19). Nest building is common in some solitary wasps (Sphecidae
and Pompilidae). However, the distances between hunting sites and nests
are unknown for wasps, but many wasps probably hunt close to their nest
(within 3 to 66 ft (1 to 20 m)) (O'Neil 2019, pp. 108-111, 152). Most
butterflies, flies, and beetles find egg laying and feeding sites as
they move across the landscape. The most common bee and wasp
pollinators have a fixed location for their nest, and thus their
nesting success is dependent on the availability of resources within
their flight range (Xerces 2009, p. 14).
Many insect communities are known to be influenced not only by
local habitat conditions, but also the surrounding landscape condition
(Klein et al. 2004, p. 523; Inouye et al. 2015, pp. 119-121; Dorchin et
al. 2013, entire; Tepedino et al. 2011, entire; Xerces 2009, pp. 11-
26). In order for genetic exchange of Tiehm's buckwheat to occur,
insect visitors and pollinators must be able to move freely between
subpopulations. Alternative pollen and nectar sources (other plant
species within the surrounding vegetation) are needed to support
pollinators during times when Tiehm's buckwheat is not flowering.
Conservation strategies that maintain plant-pollinator interactions,
such as maintenance of diverse, herbicide-free nectar resources, would
serve to attract a wide array of insects, including pollinators of
Tiehm's buckwheat (BLM 2012, pp. 5-6, 19; Cranmer et al. 2012, p. 567).
Summary
Based on our current knowledge of the physical or biological
features and habitat characteristics required to sustain the species'
life-history processes, we determine that the following physical and
biological features are essential to the conservation of Tiehm's
buckwheat:
1. Plant community. A plant community that supports all life stages
of Tiehm's buckwheat includes:
a. Open to sparsely vegetated areas with low native plant cover and
stature.
b. An intact, native vegetation assemblage that can include, but is
not limited to, shadscale saltbush, James' galleta, and alkali sacaton
to protect Tiehm's buckwheat from nonnative, invasive plant species and
provide the habitats needed by Tiehm's buckwheat's insect visitors and
pollinators.
c. A diversity of native plants whose blooming times overlap to
provide insect visitors and pollinator species with flowers for
foraging throughout the seasons and to provide nesting and egg-laying
sites; appropriate nest materials; and sheltered, undisturbed habitat
for hibernation and overwintering of pollinator species and insect
visitors.
2. Pollinators and insect visitors. Sufficient pollinators and
insect visitors, particularly bees, wasps, beetles, and flies, are
present for the species' successful reproduction and seed production.
3. Hydrology. Hydrology that is suitable for Tiehm's buckwheat
consists of dry, open, relatively barren, upland sites subject to
occasional precipitation from rain and/or snow for seed germination.
4. Suitable soils. Soils that are suitable for Tiehm's buckwheat
consist of:
a. Light-colored, rocky soils derived from an uncommon formation of
interbedded claystones, shales, tuffaceous sandstones, and limestones.
b. Soils that are poor, with little development; lack an A horizon;
and are full of broken pieces of the parent bedrock.
c. Soils characterized by a variety of textures, and include clay
soils, sandy clay loams, sandy loams, and loams.
d. Soils with pH ranges from 7.64 to 8.76.
e. Soils that commonly have on average boron and bicarbonates
present at higher levels, and potassium, zinc, sulfur, and magnesium
present at lower levels.
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 area proposed for designation as critical habitat may
require some level of management to address the current and future
threats to the physical and biological features essential to the
conservation of Tiehm's buckwheat
A detailed discussion of threats to Tiehm's buckwheat and its
habitat can be found in the SSA report (Service 2021a, pp. 23-48). The
features essential to the conservation of Tiehm's buckwheat (plant
community, pollinators and insect visitors, and suitable hydrology and
soils, required for the persistence of adults as well as successful
reproduction of such individuals and the formation of a seedbank) may
require special management considerations or protection to reduce
threats; these threats are more fully described in the proposed listing
rule (86 FR 55775; October 7, 2021). The current range of Tiehm's
buckwheat is subject to anthropogenic threats such as mineral
development, road development and off-highway vehicle (OHV) activity,
livestock grazing, nonnative and invasive plant species, and climate
change, as well as natural threats such as herbivory and potential
effects associated with small population size (Service 2021a, pp. 23-
54).
Management activities that could ameliorate these threats include
(but are not limited to): Treatment of nonnative, invasive plant
species; minimization of OHV access and placement of new roads away
from the species and its habitat; regulations or agreements to minimize
the effects of mineral exploration and development where the species
resides; minimization of livestock use or other disturbances that
disturb the soil or seeds; minimization of habitat fragmentation; and
monitoring for herbivory. These activities would protect the physical
or biological features for the species by preventing the loss of
habitat; protecting the plant's habitat, pollinator and insect
visitors, and soils from undesirable patterns or levels of disturbance;
and facilitating management for desirable conditions that are necessary
for Tiehm's buckwheat to fulfill its life-history needs.
Tiehm's buckwheat occurs entirely on Federal lands managed by the
BLM. As described in the Tonopah Resource Management Plan (RMP),
habitat for all federally listed endangered and threatened species and
for all Nevada BLM sensitive species will be managed to maintain or
increase current species populations. The introduction, reintroduction,
or augmentation of Nevada BLM sensitive species may be allowed in
coordination with Nevada Department of Wildlife (NDOW) or the Service,
if it is deemed appropriate. Such actions will be considered on a case-
by-case basis and will be subject to applicable procedures (BLM 1997,
p. 9).
BLM has issued policy guidance to implement its obligations under
the Federal Land Policy and Management Act (FLPMA; 43 U.S.C. 1701 et
seq.). These include BLM's Integrated Vegetation Management Handbook H-
1740-2, which guides BLM's various programs to use an interdisciplinary
and
[[Page 6108]]
collaborative process to plan and implement a set of actions that
improve biological diversity and ecosystem function that promote and
maintain native plant communities that are resilient to disturbance and
invasive species (BLM 2008, p. 2).
Additionally, the BLM Manual section MS-6840, release 6-125 (BLM
2008, pp. 1-48), provides guidance with respect to sensitive species.
Tiehm's buckwheat is managed as a BLM sensitive species; BLM sensitive
species are defined as ``species that require special management
consideration to avoid potential future listing under the [Act]'' (BLM
2008, Glossary, p. 5). Under this policy, BLM can initiate proactive
conservation measures, including programs, plans, and management
practices, to reduce or eliminate threats affecting the status of BLM
sensitive species, or to improve the condition of the species' habitat
on BLM-administered lands (BLM 2008, MS-6840.02, MS-6840.06.2.C., and
definition of ``conservation,'' pp. 3, 37, and Glossary 2).
In response to the September 2020 herbivory event on Tiehm's
buckwheat subpopulations, BLM has been monitoring the species. Photo
plots were established near undamaged plants in subpopulations 1, 3,
and 6 to help determine whether herbivory is continuing (Crosby 2020a,
pers. comm.; Crosby, 2020b, pers. comm.). Ocular estimates from the
photo plots indicate that herbivory is not ongoing (Crosby, 2020b,
pers. comm.). Game cameras that were installed by BLM when damage to
the species was first reported were removed in mid-November 2020, but
may be reinstalled if deemed necessary (Crosby, 2020a, pers. comm).
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat. We are not currently proposing to
designate any areas outside the geographical area occupied by the
species because we have not identified any unoccupied areas that meet
the definition of critical habitat. The occupied areas are sufficient
for the conservation of the species because the physical and biological
features that support the plant occur there. The areas outside of the
occupied area do not support these physical and biological features and
we are not confident that they would support populations of Tiehm's
buckwheat.
We are proposing to designate one occupied critical habitat unit
for Tiehm's buckwheat. The one unit is comprised of approximately 910
acres (ac) (368 hectares (ha)) in Nevada and is completely on lands
under Federal (BLM) land ownership. The unit was determined using
location information for Tiehm's buckwheat from E.M. Strategies and the
NDNH (Kuyper 2019, entire; Morefield 2010, entire; Morefield 2008,
entire). These locations were classified into one discrete population,
with eight subpopulations, based on mapping standards devised by
NatureServe and its network of Natural Heritage Programs (NatureServe
2004, entire). This unit includes the physical footprint of where the
plants currently occur, as well as their immediate surroundings out to
1,640 ft (500 m) in every direction from the periphery of each
subpopulation. This area of surrounding habitat contains components of
the physical and biological features (i.e., the pollinator community
and its requisite native vegetative assembly) necessary to support the
life-history needs of Tiehm's buckwheat (Antoine and Forrest 2021, p.
152; O'Neil 2019, pp. 108-111, 152; Danforth et al. 2019, p. 207; BLM
2012, p. 19; Xerces 2009, p. 14; Greenleaf et al. 2007, pp. 592-594;
Gathmann and Tscharntke 2002, entire). This essential habitat
configuration was based on the best available nesting, egg-laying, and
foraging information for the bee, wasp, beetle, and fly pollinators and
insect visitors of Tiehm's buckwheat (McClinton et al. 2020, p. 18), as
most insect communities are known to be influenced not only by local
habitat conditions, but also the surrounding landscape conditions
(Klein et al. 2004, p. 523; Inouye et al. 2015, pp. 119-121; Dorchin et
al. 2013, entire; Tepedino et al. 2011, entire; Xerces 2009, pp. 11-
26).
The critical habitat designation is defined by the map, 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 the map is based available
to the public on <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R8-ES-
2020-0017, and at the field office responsible for the designation (see
FOR FURTHER INFORMATION CONTACT above).
Proposed Critical Habitat Designation
We are proposing one unit as critical habitat for Tiehm's
buckwheat. The unit is considered occupied at the time of listing. The
critical habitat area, the Rhyolite Ridge area of the Silver Peak Range
in Esmeralda County, Nevada, that we describe below constitutes our
current best assessment of areas that meet the definition of critical
habitat for Tiehm's buckwheat. Table 1(below) shows the proposed
critical habitat unit and its approximate area.
Table 1--Proposed Critical Habitat Unit for Tiehm's Buckwheat (Engonum tichmii)
[Area estimates reflect all lands within the critical habitat boundary.]
----------------------------------------------------------------------------------------------------------------
Federally owned land * Total area
Unit name ---------------------------------------------------------------
acres hectares acres hectares
----------------------------------------------------------------------------------------------------------------
Rhyolite Ridge Unit............................. 910 368
910 368
----------------------------------------------------------------------------------------------------------------
* These lands are Federal lands managed by the Bureau of Land Management (BLM).
We present brief a description of the critical habitat unit, and
reasons why it meets the definition of critical habitat for Tiehm's
buckwheat, below.
Rhyolite Ridge Unit
The Rhyolite Ridge Unit consists of approximately 910 ac (368 ha)
of Federal land. This unit is located approximately 13 miles (21
kilometers) west of Silver Peak in Esmeralda County, Nevada. Cave
Springs Road, a
[[Page 6109]]
rural, county unpaved road, bisects the unit. One hundred percent of
this unit is on Federal lands managed by the BLM. This unit is
currently occupied and contains the single population comprised of
eight subpopulations of Tiehm's buckwheat. This unit is essential to
the conservation and recovery of Tiehm's buckwheat because it supports
all of the habitat that is occupied by Tiehm's buckwheat across the
species' range. This unit currently has all of the physical and
biological features described above essential to the conservation of
the species, including a plant community that supports all life stages
of Tiehm's buckwheat; sufficient pollinators and insect visitors,
particularly bees, wasps, beetles, and flies; hydrology suitable for
Tiehm's buckwheat that consists of dry, open, relatively barren, upland
sites subject to occasional precipitation from rain and/or snow; and
soils that are suitable for Tiehm's buckwheat. Special management
considerations or protection may be required to address mineral
development, road development and OHV activity, livestock grazing,
nonnative invasive plant species, and herbivory (see Special Management
Considerations or Protection).
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
We published a final rule revising the definition of destruction or
adverse modification on August 27, 2019 (84 FR 44976). Destruction or
adverse modification means a direct or indirect alteration that
appreciably diminishes the value of critical habitat as a whole for the
conservation of a listed species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, Tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or 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,
subsequent to the previous consultation, when: (1) The amount or extent
of taking specified in the incidental take statement is exceeded; (2)
new information reveals effects of the action that may affect listed
species or critical habitat in a manner or to an extent not previously
considered; (3) the identified action is subsequently modified in a
manner that causes an effect to the listed species or critical habitat
that was not considered in the biological opinion; or (4) a new species
is listed or critical habitat designated that may be affected by the
identified action.
In such situations, Federal agencies sometimes may need to request
reinitiation of consultation with us, but the regulations also specify
some exceptions to the requirement to reinitiate consultation on
specific land management plans after subsequently listing a new species
or designating new critical habitat. See the regulations for a
description of those exceptions.
Application of the ``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 the critical habitat of Tiehm's buckwheat include, but are not
limited to, actions that are likely to cause large-scale habitat
impacts, adversely affecting the physical and biological features at a
scale and magnitude such that the designated critical habitat would no
longer be able to provide for the conservation of the
[[Page 6110]]
species. Examples include removing corridors for pollinator movement
and seed dispersal; significantly disrupting the native vegetative
assemblage, seed bank, or soil composition and structure; or
significantly fragmenting the landscape and decreasing the resiliency
and representation of the species throughout its range (Service 2021b,
p. 14). For such activities, the Service would likely require
reasonable and prudent alternatives to ensure the implementation of
project-specific conservation measures designed to reduce the scale and
magnitude of these habitat impacts.
Exemptions
Application of Section 4(a)(3)(B)(i) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that the Secretary shall not designate as critical habitat any
lands or other geographical areas owned or controlled by the Department
of Defense (DoD), or designated for its use, that are subject to an
integrated natural resources management plan (INRMP) prepared under
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary
determines in writing that such plan provides a benefit to the species
for which critical habitat is proposed for designation. No DoD lands
with a completed INRMP are 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 designated critical habitat based on
economic impacts, impacts on national security, or any other relevant
impacts. In considering whether to exclude a particular area from the
designation, we identify the benefits of including the area in the
designation, identify the benefits of excluding the area from the
designation, and evaluate whether the benefits of exclusion outweigh
the benefits of inclusion. If the analysis indicates that the benefits
of exclusion outweigh the benefits of inclusion, the Secretary may
exercise discretion to exclude the area only if such exclusion would
not result in the extinction of the species. In 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
discretion regarding which factor(s) to use and how much weight to give
to any factor. 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 section
4(b)(2) exclusion analysis.
For this particular designation, we developed an incremental
effects memorandum (IEM; Service 2021b, entire) 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 Tiehm's buckwheat
(Industrial Economics Inc. (IEc) 2021, 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 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 Tiehm's buckwheat; our
DEA is summarized in the narrative below.
Executive Orders 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 Executive orders' 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
[[Page 6111]]
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 Tiehm's buckwheat, first we
identified, in the IEM dated July 21, 2021 (Service 2021b, entire),
probable incremental economic impacts associated with the following
categories of activities: Mining and minerals exploration, livestock
grazing, and recreation. We considered each industry or category
individually. Additionally, we considered whether their activities have
any Federal involvement. Critical habitat designation generally will
not affect activities that do not have any Federal involvement; under
the Act, designation of critical habitat only affects activities
conducted, funded, permitted, or authorized by Federal agencies.
Because the species is already proposed for listing, in areas where
Tiehm's buckwheat is present, Federal agencies need to conference with
the Service under section 7(a)(4) of the Act if it is determined that
any activities they authorize, fund, or carry out are likely to
jeopardize the continued existence of the species. Upon publication of
this proposed critical habitat designation in the Federal Register,
Federal agencies also need to conference with the Service under section
7(a)(4) if it is determined that any activities they authorize, fund,
or carry out are likely to destroy or adversely modify the 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 Tiehm's
buckwheat critical habitat. The following specific circumstances help
to inform our evaluation: (1) The essential physical and biological
features identified for critical habitat are the most important
features essential for the life-history needs of the species, and (2)
any actions that would result in sufficient adverse effect to the
essential physical and biological features of critical habitat would
also constitute jeopardy to Tiehm's buckwheat. The IEM outlines our
rationale concerning this limited distinction between baseline
conservation efforts and incremental impacts of the designation of
critical habitat for Tiehm's buckwheat. 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 Tiehm's buckwheat
includes one critical habitat unit (Rhyolite Ridge Unit) totaling
approximately 910 ac (368 ha), which was occupied by Tiehm's buckwheat
at the time of proposed listing and is currently occupied. Any actions
that may affect the species or its habitat would also affect critical
habitat, and it is unlikely that any additional conservation efforts
would be recommended to address the adverse modification standard over
and above those recommended as necessary to avoid jeopardizing the
continued existence of Tiehm's buckwheat. Therefore, the proposed
critical habitat designation is expected to result in only
administrative costs. While additional analysis will require time and
resources by both the Federal action agency and the Service, it is
believed that, in most circumstances, these costs would be relatively
minor and administrative in nature.
This proposed critical habitat designation is expected to result in
six consultations in 10 years (IEc 2021, p. 3). This additional
administrative effort includes a projected estimate of five formal
consultations and one programmatic consultation, which is aggregated
into a given year to give a total annual incremental cost for the
purpose of determining whether the rule is economically significant
under Executive Order 12866 (IEc 2021, Exhibit 3, p. 12). The analysis
forecasts no incremental costs associated with project modifications
that would involve additional conservation efforts for Tiehm's
buckwheat. The projected incremental costs for each programmatic,
formal, informal, and technical assistance effort are estimated to be
approximately $5,300 (formal consultation), $2,600 (informal
consultation), $9,800 (programmatic consultation), and $420 (technical
assistance). Analyzing the potential for adverse modification of the
species' critical habitat during section 7 consultation will likely
result in a total annual incremental cost of less than approximately
$37,000 (2021 dollars) in a given year for Tiehm's buckwheat (IEc 2021,
Exhibits 4 and 5, p. 13); therefore, the annual administrative burden
is extremely unlikely to generate costs exceeding $100 million in a
single year (i.e., the threshold for an economically significant rule
under Executive Order 12866).
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 the
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.
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 or proposed 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,
[[Page 6112]]
DHS, or another Federal agency requests exclusion from critical habitat
on the basis of national-security or homeland-security impacts, we must
conduct an exclusion analysis if the Federal requester provides
credible information, including a reasonably specific justification of
an incremental impact on national security that would result from the
designation of that specific area as critical habitat. That
justification could include demonstration of probable impacts, such as
impacts to ongoing border-security patrols and surveillance activities,
or a delay in training or facility construction, as a result of
compliance with section 7(a)(2) of the Act. If the agency requesting
the exclusion does not provide us with a reasonably specific
justification, we will contact the agency to recommend that it provide
a specific justification or clarification of its concerns relative to
the probable incremental impact that could result from the designation.
If we conduct an exclusion analysis because the agency provides a
reasonably specific justification or because we decide to exercise the
discretion to conduct an exclusion analysis, we will defer to the
expert judgment of DoD, DHS, or another Federal agency as to: (1)
Whether activities on its lands or waters, or its activities on other
lands or waters, have national-security or homeland-security
implications; (2) the importance of those implications; and (3) the
degree to which the cited implications would be adversely affected in
the absence of an exclusion. In that circumstance, in conducting a
discretionary section 4(b)(2) exclusion analysis, we will give great
weight to national-security and homeland-security concerns in analyzing
the benefits of exclusion.
Under section 4(b)(2) of the Act, we also consider whether 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 the lands within the proposed designation of critical
habitat for Tiehm's buckwheat are not owned or managed by DoD or DHS.
Therefore, we anticipate no impact on national security or homeland
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. Other relevant impacts may include, but are
not limited to, impacts to Tribes, States, local governments, public
health and safety, community interests, the environment (such as
increased risk of wildfire, or pest and invasive species management),
Federal lands, and conservation plans, agreements, or partnerships. To
identify other relevant impacts that may affect the exclusion analysis,
we consider a number of factors, including whether there are permitted
conservation plans covering the species in the area--such as HCPs, safe
harbor agreements, or candidate conservation agreements with
assurances--or whether there are non-permitted conservation agreements
and partnerships that may be impaired by designation of, or exclusion
from, critical habitat. In addition, we look at whether Tribal
conservation plans or partnerships, Tribal resources, or government-to-
government relationships of the United States with Tribal entities may
be affected by the designation. We also consider any State, local,
public-health, community-interest, environmental, or social impacts
that might occur because of the designation.
When analyzing other relevant impacts of including a particular
area in a designation of critical habitat, we weigh those impacts
relative to the conservation value of the particular area. To determine
the conservation value of designating a particular area, we consider a
number of factors, including, but not limited to, the additional
regulatory benefits that the area would receive due to the protection
from destruction or adverse modification as a result of actions with a
Federal nexus, the educational benefits of mapping essential habitat
for recovery of the listed species, and any benefits that may result
from a designation due to State or Federal laws that may apply to
critical habitat.
After identifying the benefits of inclusion and the benefits of
exclusion, we carefully weigh the two sides to evaluate whether the
benefits of exclusion outweigh those of inclusion. If our analysis
indicates that the benefits of exclusion outweigh the benefits of
inclusion, we then determine whether exclusion would result in
extinction of the species. If exclusion of an area from critical
habitat will result in extinction, we will not exclude it from the
designation.
In the case of Tiehm's buckwheat, the benefits of critical habitat
include public awareness of the presence of Tiehm's buckwheat and the
importance of habitat protection, and, where a Federal nexus exists,
increased habitat protection for Tiehm's buckwheat due to protection
from destruction or adverse modification of critical habitat.
Conservation Plans
We evaluate the existence of a conservation plan when considering
the benefits of inclusion. We consider a variety of factors, including,
but not limited to, whether the plan is finalized; how it provides for
the conservation of the essential physical or biological features;
whether there is a reasonable expectation that the conservation
management strategies and actions contained in a management plan will
be implemented into the future; whether the conservation strategies in
the plan are likely to be effective; and whether the plan contains a
monitoring program or adaptive management to ensure that the
conservation measures are effective and can be adapted in the future in
response to new information.
Private or Other Non-Federal Conservation Plans or Agreements and
Partnerships
We sometimes exclude specific areas from critical habitat
designations based in part on the existence of private or other non-
Federal conservation plans or agreements and their attendant
partnerships. A conservation plan or agreement describes actions that
are designed to provide for the conservation needs of a species and its
habitat, and may include actions to reduce or mitigate negative effects
on the species caused by activities on or adjacent to the area covered
by the plan. Conservation plans or agreements can be developed by
private entities with no Service involvement, or in partnership with
the Service, sometimes through the permitting process under section 10
of the Act.
When we undertake a discretionary section 4(b)(2) analysis, we
evaluate a variety of factors to determine how the benefits of any
exclusion and the benefits of inclusion are affected by the existence
of private or other non-Federal conservation plans or agreements and
their attendant partnerships. The factors we consider may differ,
depending on whether we are evaluating a conservation plan that
involves permits under section 10 or a non-permitted plan (see 50 CFR
17.90(d)(3) and (4)).
[[Page 6113]]
There are no habitat conservation plans for the area in the proposed
critical habitat designation for Tiehm's buckwheat.
Ioneer USA Corporation (Ioneer)
As part of the proposed Rhyolite Ridge Lithium-Boron project,
Ioneer USA Corporation (Ioneer) is developing a conservation strategy
for Tiehm's buckwheat to protect and preserve the continued viability
of the species on a long-term basis. Currently, the conservation
strategy is in the early stages (Ioneer 2020b, entire).
Ioneer has also implemented or proposed various protection measures
for Tiehm's buckwheat. Ioneer funded the development of a habitat
suitability model to identify additional potential habitat for Tiehm's
buckwheat through field surveys (Ioneer 2020a, p. 12). In addition, a
demographic monitoring program was initiated in 2019, to detect and
document trends in population size, acres inhabited, size class
distribution, and cover with permanent monitoring transects established
in subpopulations 1, 2, 3, 4, and 6 (Ioneer 2020a, p. 16). Ioneer also
funded collection of Tiehm's buckwheat seed in 2019 (Ioneer 2020a, pp.
13-14). Some of this seed was used by the University of Nevada, Reno
(UNR), for a propagation trial and transplant study (Ioneer 2020a, p.
14). The remainder of this seed is in long-term storage at Rae Selling
Berry Seed Bank at Portland State University (Ioneer 2020a, p. 13). As
part of its proposed mining plan of operations, Tiehm's buckwheat
protection plan, Ioneer also plans to avoid subpopulations 1, 2, 3, and
8 (Ioneer 2020a, p. 11), fence and place signage around subpopulations
1 and 2 (Ioneer 2020a, p. 11), and remove and salvage all remaining
plants in subpopulations 4, 5, 6, and 7 and translocate them to another
location (Ioneer 2020a, p. 15). However, the proposed Rhyolite Ridge
Lithium-Boron project may or may not be permitted by the BLM, and these
protection measures may or may not be fully implemented.
Tribal Lands
Several Executive orders, Secretarial Orders, and policies concern
working with Tribes. These guidance documents generally confirm our
trust responsibilities to Tribes, recognize that Tribes have sovereign
authority to control Tribal lands, emphasize the importance of
developing partnerships with Tribal governments, and direct the Service
to consult with Tribes on a government-to-government basis. In
addition, we look at the existence of Tribal conservation plans and
partnerships. In preparing this proposal, we have determined that the
proposed designation of critical habitat does not include any Tribal
lands or trust resources. We anticipate no impact on Tribal lands or
partnerships from this proposed designation of critical habitat.
We may also consider areas not identified for inclusion or
exclusion from the final critical habitat designation based on
information we may receive during the public comment period. As noted
above, we have requested that the entities seeking inclusion or
exclusion of areas provide credible information regarding the existence
of a meaningful economic or other relevant impact supporting a benefit
of exclusion for that particular area (see 50 CFR 17.90). A final
determination on whether the Secretary will exercise her discretion to
include or exclude this area from critical habitat for Tiehm's
buckwheat will be made at the time of our final determination regarding
critical habitat. During the development of a final designation, we
will consider any additional information we receive through the public
comment period regarding other relevant impacts of the proposed
designation and will determine whether any specific areas should be
excluded from the final critical habitat designation under authority of
section 4(b)(2) and our implementing regulations at 50 CFR 424.19.
Required Determinations
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this rule is not
significant.
Executive Order 13563 reaffirms the principles of Executive Order
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. Executive Order 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
[[Page 6114]]
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 this 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 critical habitat designation for Tiehm's buckwheat
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 as proposed, the
critical habitat designation for Tiehm's buckwheat will 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. There are no operation, management, and maintenance
activities of utility facilities (e.g., hydropower facilities,
powerlines, pipelines) that we are aware of or that have been known to
occur within the range of Tiehm's buckwheat and its proposed critical
habitat unit. If proposed in the future, these are activities that the
Service consults on with Federal agencies (and their respective
permittees, including utility companies) under section 7 of the Act. As
discussed in the DEA, the costs associated with consultations related
to occupied critical habitat would be largely administrative in nature
and are not anticipated to reach $100 million in any given year based
on the anticipated annual number of consultations and associated
consultation costs, which are not expected to exceed $37,000 per year
(2021 dollars) (IEc 2021, p. 13). 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 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 it is not anticipated to
reach a Federal mandate of $100 million in any given year; that is, it
is not a ``significant regulatory action'' under the Unfunded Mandates
Reform Act. The designation of critical habitat imposes no obligations
on State or local governments. Small governments could be affected only
to the extent that any programs having Federal funds, permits, or other
authorized activities must ensure that
[[Page 6115]]
their actions will not adversely affect the critical habitat. By
definition, Federal agencies are not considered small entities,
although the activities they fund or permit may be proposed or carried
out by small entities. Consequently, we do not believe that the
proposed critical habitat designation would significantly or uniquely
affect small government entities. Therefore, a Small Government Agency
Plan is not required.
Takings--Executive Order 12630
In accordance with Executive Order 12630 (Government Actions and
Interference with Constitutionally Protected Private Property Rights),
we have analyzed the potential takings implications of designating
critical habitat for Tiehm's buckwheat 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 Tiehm's buckwheat, 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 Executive Order 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 Federal
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 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. There are no Tribal lands included in
this proposed designation of critical habitat.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a> and upon request from
the Reno Fish and Wildlife 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
[[Page 6116]]
Assessment Team and the Reno Fish and Wildlife Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
unless otherwise noted.
0
2. Amend Sec. 17.96, in paragraph (a), by adding an entry for ``Family
Polygonaceae: Eriogonum tiehmii (Tiehm's buckwheat)'' in alphabetical
order to read as follows:
Sec. 17.96 Critical habitat--plants.
(a) * * *
Family Polygonaceae: Eriogonum tiehmii (Tiehm's buckwheat)
(1) The critical habitat unit is depicted for Esmeralda County,
Nevada, on the map in this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of Tiehm's buckwheat consist of the
following:
(i) Plant community. A plant community that supports all life
stages of Tiehm's buckwheat includes:
(A) Open to sparsely vegetated areas with low native plant cover
and stature.
(B) An intact, native vegetation assemblage that can include, but
is not limited to, Atriplex confertifolia (shadscale saltbush), Hilaria
jamesii (James' galleta), and Sporobolus airoides (alkali sacaton) to
protect Tiehm's buckwheat from nonnative, invasive plant species and
provide the habitats needed by Tiehm's buckwheat's insect visitors and
pollinators.
(C) A diversity of native plants whose blooming times overlap to
provide insect visitors and pollinator species with flowers for
foraging throughout the seasons and to provide nesting and egg-laying
sites; appropriate nest materials; and sheltered, undisturbed habitat
for hibernation and overwintering of pollinator species and insect
visitors.
(ii) Pollinators and insect visitors. Sufficient pollinators and
insect visitors, particularly bees, wasps, beetles, and flies, are
present for the species' successful reproduction and seed production.
(iii) Hydrology. Hydrology that is suitable for Tiehm's buckwheat
consists of dry, open, relatively barren, upland sites subject to
occasional precipitation from rain and/or snow for seed germination.
(iv) Suitable soils. Soils that are suitable for Tiehm's buckwheat
consist of:
(A) Light-colored, rocky soils derived from an uncommon formation
of interbedded claystones, shales, tuffaceous sandstones, and
limestones.
(B) Soils that are poor, with little development; lack an A
horizon; and are full of broken pieces of the parent bedrock.
(C) Soils characterized by a variety of textures, and include clay
soils, sandy clay loams, sandy loams, and loams.
(D) Soils with pH ranges from 7.64 to 8.76.
(E) Soils that commonly have on average boron and bicarbonates
present at higher levels, and potassium. zinc, sulfur, and magnesium
present at lower levels.
(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
[EFFECTIVE DATE OF THE FINAL RULE].
(4) Data layers defining the map unit were created by the Service,
and the critical habitat unit was then mapped using Universal
Transverse Mercator Zone 11N coordinates. The map in this entry, as
modified by any accompanying regulatory text, establishes the
boundaries of the critical habitat designation. The coordinates or plot
points or both on which the map is based are available to the public at
<a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R8-ES-2020-0017 and at
the field office responsible for this designation. You may obtain field
office location information by contacting the Service regional office,
the address of which is listed at 50 CFR 2.2.
(5) Rhyolite Ridge Unit, Esmeralda County, Nevada.
(i) The Rhyolite Ridge Unit consists of approximately 910 acres
(368 hectares) of occupied habitat in the Rhyolite Ridge area of the
Silver Peak Range in Esmeralda County, Nevada. All lands within this
unit are under Federal ownership (Bureau of Land Management).
(ii) Map of the Rhyolite Ridge Unit follows:
BILLING CODE 4333-15-P
[[Page 6117]]
[GRAPHIC] [TIFF OMITTED] TP03FE22.043
[[Page 6118]]
* * * * *
Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-02298 Filed 2-2-22; 8:45 am]
BILLING CODE 4333-15-C
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</html>Indexed from Federal Register on February 3, 2022.
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.