Rule2022-03317
Endangered and Threatened Wildlife and Plants; Reclassification of Stephens' Kangaroo Rat From Endangered To Threatened With a Section 4(d) Rule
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 17, 2022
Effective
March 21, 2022
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), are reclassifying the Stephens' kangaroo rat (Dipodomys stephensi) from endangered to threatened under the Endangered Species Act of 1973, as amended (Act). This action is based on our evaluation of the best available scientific and commercial information, which indicates that the species' status has improved such that it is not currently in danger of extinction throughout all or a significant portion of its range, but that it is still likely to become so throughout all of its range in the foreseeable future. We also finalize a rule under section 4(d) of the Act that provides for the conservation of the Stephens' kangaroo rat.
Full Text
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[Federal Register Volume 87, Number 33 (Thursday, February 17, 2022)]
[Rules and Regulations]
[Pages 8967-8981]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-03317]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2019-0113; FF09E22000 FXES11130900000 212]
RIN 1018-BE64
Endangered and Threatened Wildlife and Plants; Reclassification
of Stephens' Kangaroo Rat From Endangered To Threatened With a Section
4(d) Rule
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are
reclassifying the Stephens' kangaroo rat (Dipodomys stephensi) from
endangered to threatened under the Endangered Species Act of 1973, as
amended (Act). This action is based on our evaluation of the best
available scientific and commercial information, which indicates that
the species' status has improved such that it is not currently in
danger of extinction throughout all or a significant portion of its
range, but that it is still likely to become so throughout all of its
range in the foreseeable future. We also finalize a rule under section
4(d) of the Act that provides for the conservation of the Stephens'
kangaroo rat.
DATES: This rule is effective March 21, 2022.
ADDRESSES: This final rule is available on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Comments and materials we received, as well as
supporting documentation we used in preparing this rule, are available
for public inspection at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-
R8-ES-2019-0113.
FOR FURTHER INFORMATION CONTACT: Scott Sobiech, Field Supervisor, U.S.
Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 2177 Salk
Avenue, Suite 250, Carlsbad, CA 92008; telephone 760-431-9440. 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, a species may warrant
reclassification from endangered to threatened if it no longer meets
the definition of endangered (in danger of extinction). The Stephens'
kangaroo rat was listed as endangered in 1988 (53 FR 38465, September
30, 1988), and we are finalizing our proposed reclassification
(downlisting) (85 FR 50991, August 19, 2020) of the Stephens' kangaroo
rat as threatened because we have determined it is not currently in
danger of extinction. Downlisting a species as a threatened species can
be completed only by issuing a rule.
What this document does. This rule reclassifies the Stephens'
kangaroo rat from endangered to threatened, with a rule issued under
section 4(d) of the Act (hereafter referred to as a ``4(d) rule'').
The basis for our action. Under the Act, we may determine that a
species is an endangered species or a threatened species because of any
of five factors: (A) The present or threatened destruction,
modification, or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence. We may reclassify a listed species
if the best commercial and scientific data available indicate a change
in status is appropriate. We have determined that the Stephens'
kangaroo rat is no longer in danger of extinction, and therefore does
not meet the definition of an endangered species, due to a reduction of
threats since listing and the implementation of conservation actions.
However, the species is still affected by the following threats to the
extent that the species meets the definition of a threatened species
under the Act:
<bullet> Habitat loss and degradation due to urbanization,
agricultural activities, and nonnative vegetation; and
<bullet> Isolation of existing populations due to habitat
fragmentation.
The cumulative effects of climate change and wildfire, which could
result in an increase in the extent of nonnative grasslands, represents
a low-level stressor to the Stephens' kangaroo rat and its habitat, and
based on climate change projections, is likely to remain at this level
to the 2060s. Existing regulatory mechanisms and
[[Page 8968]]
conservation efforts do not effectively address existing habitat
fragmentation or the introduction and spread of nonnative plants or
improve population connectivity and dispersal.
We are promulgating a section 4(d) rule. This 4(d) rule prohibits
all intentional take of the Stephens' kangaroo rat and specifically
tailors the incidental take exceptions under section 9(a)(1) of the
Act. This provides protective mechanisms to Federal, State, and Tribal
partners and private landowners, so that they may continue with certain
activities that benefit the species or its habitat or are not
anticipated to cause direct injury or mortality to Stephens' kangaroo
rat. We have determined that such measures will facilitate the
conservation and recovery of the species.
Previous Federal Actions
Please refer to the proposed rule to reclassify the Stephens'
kangaroo rat published on August 19, 2020 (85 FR 50991), for a detailed
description of previous Federal actions concerning this species.
Summary of Changes From the Proposed Rule
Based upon our review of the Federal, State, peer review, and
public comments and any new relevant information that became available,
we reevaluated our proposed rule and made changes as appropriate in
this final rule. Other than minor clarifications and incorporation of
additional information on the species' biology and populations, this
determination differs from the proposal in the following ways:
(1) As discussed in the 2019 species report and 2020 proposed rule,
we developed a habitat suitability model (HSM) based on available
habitat mapping information, and the Conservation Biology Institute
(CBI) was in the process of developing a more detailed range-wide HSM
(Service 2019, pp. 14-15). Since that time, CBI completed that more
comprehensive HSM for Stephens' kangaroo rat, which we are using to
update the potential habitat projections for use as a proxy for the
species' demographic information. This new model provides better
resolution through use of spectral imagery and other environmental data
layers. The new HSM uses a smaller patch size of 50 hectares (ha) (124
acres (ac)) and dispersal distance of 200 meters, compared to what we
used in our original model (100 ha (247 ac)) and a dispersal distance
of 61.5 meters (202 ft) as a cutoff for fragmented patches. Therefore,
we removed the habitat fragmentation calculations in the updated
species report (Service 2021, entire) that were based on the 100-ha
(247-ac) size and shorter dispersal distance.
Incorporation of the more recent HSM also required us to revise the
amount and ownership breakdown of modeled habitat for Stephens'
kangaroo rat. The amount of modeled habitat in the original model,
identified in the proposed rule, was 91,538 ac (37,044 ha), compared to
the new model (184,367 ac (74,610 ha)). The amount of conserved lands
also increased from 28,567 ac (11,561 ha) in the proposed rule, to
68,701 ac (27,802 ha) in this final rule. This includes approximately
1,287 ac (521 ha) of modeled habitat within the species' range in San
Bernardino County, California.
(2) We updated this final rule and the species report with all the
above changes and with other suggested edits received during the open
comment period. The revised species report is version 1.2 (Service
2021, entire).
(3) We revised the section 4(d) rule based on public comments
regarding fire safety measures and have made the defensible space
requirements more stringent than the State of California fire code as
requested.
Supporting Documents
A team of Service biologists prepared a species report for the
Stephens' kangaroo rat (Service 2021, entire). The team was composed of
Service biologists, in consultation with other species experts. The
species report represents a compilation of the best scientific and
commercial data available concerning the status of the species,
including the impacts of past, present, and future factors (both
negative and beneficial) affecting the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review of
listing actions under the Act, we sought peer review of the information
contained in the Stephens' kangaroo rat species report. We sent the
species report to four independent peer reviewers and received one
response. Results of this structured peer review process can be found
at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. The status report was also submitted to
our Federal and State partners for scientific review. We received
review from two partners (Department of Defense (DoD) and California
Department of Fish and Wildlife (CDFW)). We incorporated the results of
these reviews, as appropriate, into the final status report, which is
the foundation for this final rule.
Reclassification Determination
The Stephens' kangaroo rat is a small, nocturnal mammal that has a
dusky cinnamon buff overfur, pure white underfur, and a lateral white
tail band. The tail is crested and bicolored (Service 1997, pp. 1, 2,
25; Service 2021, chapter 2). Kangaroo rats possess a number of
behavioral, morphological, and physiological adaptations that allow
them to inhabit warm, arid environments (Service 2021, pp. 2, 24).
Stephens' kangaroo rat habitat generally consists of open
grasslands and sparsely vegetated scrub (Moore-Craig 1984, p. 6;
O'Farrell and Uptain 1987, p. 44). The Stephens' kangaroo rat
constructs and lives in underground burrow systems that are used as
shelter, protection from predators, food storage (caching), and
nesting. Areas of occupied (patchy) habitat consist of burrow entrances
connected by a network of well-defined surface runways.
Populations of the Stephens' kangaroo rat occur in three geographic
regions of southern California: Western Riverside County, western San
Diego County, and central San Diego County. At the time of listing in
1988, the known geographic range of the species included 11 general
areas in Riverside and San Diego Counties, California (Service 1988,
entire; Service 2021, chapter 3). Currently the species is extant or
presumed extant in 17 areas (11 areas in Riverside County and 6 areas
in San Diego County) (Service 2021, table 1, p. 5). Based on our
analysis of recent detections and observations, the Stephens' kangaroo
rat continues to be found in a patchy distribution in suitable (e.g.,
grasslands, open areas with forbs) habitat in western-southwestern
Riverside County and central-northwestern San Diego County. Exact
population trends and density estimates for the Stephens' kangaroo rat
are not determinable at this time, given incomplete survey information
and difficulty in detecting the species during surveys (Brehme et al.
2017, p. 8).
Because population trends have not been determinable for Stephens'
kangaroo rat, suitable habitat was modeled in conjunction with species
occurrence information to provide an estimate of currently available
habitat (Service 2021, table 4, p. 53). This potentially suitable
modeled habitat is used in lieu of rangewide occupied habitat estimates
or rangewide population estimates. This modeled habitat was used in
conjunction with current and historical survey reports to provide
estimates of population-level occupancy throughout the range
[[Page 8969]]
(Service 2021, table 1, pp. 5-6). Additional background information on
the Stephens' kangaroo rat can be found in the draft recovery plan and
species report (Service 1997, entire; Service 2021, entire).
Current Conservation Efforts
Two large-scale habitat conservation planning efforts have been
implemented in Riverside County. Since listing, the Stephens' Kangaroo
Rat Habitat Conservation Plan (SKR HCP) has been implemented by the
Riverside County Habitat Conservation Agency (RCHCA) (RCHCA 1996,
entire), and the Western Riverside County Multi-Species Habitat
Conservation Plan (Western Riverside MSHCP) has been implemented by the
Regional Conservation Authority (Dudek and Associates 2003, entire)).
The implementation of these conservation plans has helped to offset
potential losses of habitat from urban and agricultural development.
Ongoing management for Stephens' kangaroo rat and implementation of
recovery actions by these agencies has helped reduce impacts throughout
much of the species' range in Riverside County.
Three military installations also occur within the range of the
species in western San Diego County. These DoD facilities (Marine Corps
Base Camp Pendleton (Camp Pendleton); Naval Base Coronado Remote
Training Site Warner Springs (Warner Springs); and Naval Weapons
Station Seal Beach Detachment Fallbrook (Detachment Fallbrook) have
developed, in coordination with the Service, integrated natural
resources management plans (INRMPs) and are committed to actively
managing their activities and habitat for the conservation of the
Stephens' kangaroo rat. The INRMPs are based, to the maximum extent
practicable, on ecosystem management principles and provide for the
management of Stephens' kangaroo rat and its habitat while sustaining
necessary military land uses. These three DoD facilities have
implemented numerous actions to manage and conserve areas occupied by
Stephens' kangaroo rat that aid in species recovery.
Implementation of these conservation efforts has greatly reduced
the impact of loss and degradation of habitat for the species on the
lands conserved under the two HCPs and managed at the three military
installations. See Draft Recovery Plan Implementation and Status
Criteria below, for how these efforts are assisting conservation and
reducing threats for the species.
Draft Recovery Plan Implementation and Status Criteria
Section 4(f) of the Act directs us to develop and implement
recovery plans for the conservation and survival of endangered and
threatened species unless we determine that such a plan will not
promote the conservation of the species. Under section 4(f)(1)(B)(ii),
recovery plans must, to the maximum extent practicable, include
objective, measurable criteria which, when met, would result in a
determination, in accordance with the provisions of section 4 of the
Act, that the species be removed from the List.
Recovery plans provide a roadmap for us and our partners on methods
of enhancing conservation and minimizing threats to listed species, as
well as measurable criteria against which to evaluate progress towards
recovery and assess the species' likely future condition. However, they
are not regulatory documents and do not substitute for the
determinations and promulgation of regulations required under section
4(a)(1) of the Act. A decision to revise the status of a species, or to
delist a species, is ultimately based on an analysis of the best
scientific and commercial data available to determine whether a species
is no longer an endangered species or a threatened species, regardless
of whether that information differs from the recovery plan.
There are many paths to accomplishing recovery of a species, and
recovery may be achieved without all of the criteria in a recovery plan
being fully met. For example, one or more criteria may be exceeded
while other criteria may not yet be accomplished. In that instance, we
may determine that the threats are minimized sufficiently and that the
species is robust enough that it no longer meets the definition of an
endangered species or a threatened species. In other cases, we may
discover new recovery opportunities after having finalized the recovery
plan. Parties seeking to conserve the species may use these
opportunities instead of methods identified in the recovery plan.
Likewise, we may learn new information about the species after we
finalize the recovery plan. The new information may change the extent
to which existing criteria are appropriate for identifying recovery of
the species. The recovery of a species is a dynamic process requiring
adaptive management that may, or may not, follow all of the guidance
provided in a recovery plan.
Draft Recovery Plan Information
A draft recovery plan for the Stephens' kangaroo rat was developed
in 1997 (Service 1997, entire). Although it was never finalized, the
draft recovery plan is part of the public record on the Service's views
on recovery for the species at that time. The objective of the draft
recovery plan is to protect and maintain sufficient populations of
Stephens' kangaroo rat and its habitat. The plan states this objective
can be accomplished by: (a) Establishing ecosystem-based conservation
units; (b) preventing destruction and degradation of habitat; (c)
managing use of rodenticides and other pesticides; (d) reducing
nonnative predators such as domestic cats; (e) establishing research
programs to examine the species' biological and ecological needs; and
(f) developing and implementing a proactive outreach program for the
public and landowners.
The draft plan also identifies several downlisting and delisting
criteria (Service 1997, pp. 52-60) for the species. The downlisting
criteria include: (1) Establishment of four reserves, which encompass
at least 15,000 ac (6,070 ha) of occupied habitat and are permanently
protected, funded, and managed, in western Riverside County (inside or
outside any habitat conservation planning area) (Service 1997, pp. 39-
40); and (2) establishment of one ecosystem-based reserve in either
western or central San Diego County that is permanently protected,
funded, and managed. Ecosystem-based reserves are anticipated to retain
their biological diversity and are associated with large areas of
suitable habitat (Service 1997, p. 49). Non-ecosystem reserves are
biologically more isolated and are expected to require more intensive
management. Both ecosystem and non-ecosystem reserves are needed to
retain genetic and phenotypic diversity and provide redundancy to
provide protection for species' viability from losses resulting from
catastrophic events.
The delisting criteria for the Stephens' kangaroo rat identified in
the draft recovery plan (Service 1997, pp. 53-60) are: (1) Establish a
minimum of five reserves in western Riverside County, of which one is
ecosystem-based, and that encompass at least 16,500 ac (6,675 ha) of
occupied habitat that is permanently protected, funded, and managed;
and (2) establish two ecosystem-based reserves in San Diego County. One
of these San Diego County reserves needs to be established in the
Western Conservation Planning Area, and one reserve needs to be
established in the Central
[[Page 8970]]
Conservation Planning Area. These reserves are to be permanently
protected, funded, and managed.
While the criteria in the draft recovery plan appropriately
indicate the need for habitat protection and management of reserves,
the criteria do not reflect the species' current conservation status
and no longer adequately identify the current threats to the species.
At the time the draft recovery plan was developed, habitat loss was the
major concern for the species. Due to the implementation of land
conservation and management actions (see Current Conservation Efforts),
other threats may now need greater attention and be a focus for
recovery actions (see Summary of Biological Condition and Threats). As
a result, the downlisting and delisting criteria in the draft recovery
plan may not reflect the only means to achieving recovery for the
species. However, we still agree with the conservation objectives
outlined in the draft recovery plan regarding ecosystem-based reserves.
Currently, under the SKR HCP and Western Riverside MSHCP, eight
reserves have been established for Stephens' kangaroo rat in Riverside
County. This number exceeds the four reserves identified by criterion 1
of the draft recovery plan (Service 1997, p. 52). Criterion 1 of the
draft recovery plan also identifies that the reserve lands should total
approximately 15,000 ac (6,070 ha). We estimate that, of the 331,343 ac
(53,153 ha) of modeled potentially suitable habitat for Stephens'
kangaroo rat in Riverside County, approximately 36,465 ac (14,757 ha)
of the modeled habitat is considered within conserved lands (including
reserves) in Riverside County. The majority of these lands are
conserved in eight core reserves [19,378 ac (7,842 ha)] under the SKR
HCP and Western Riverside MSHCP; however, 17,087 ac (6,915 ha) outside
these reserves are also protected as Federal, State, local, and private
lands (Service 2021, appendix D). The draft recovery plan also
instructs that the 15,000 ac ((6,070 ha) of conserved lands should be
in just four reserves. The number of acres conserved in the four
largest reserves (17,118 ac (6,927 ha)) currently exceeds this value
with four additional reserves, although smaller, that still provide
conservation value for the Stephens' kangaroo rat. In addition, three
of the four smaller reserves have the opportunity for expansion due to
the surrounding lands not being developed or in agricultural use
(Service 2021, appendix E). Thus, we conclude that this criterion has
been exceeded.
Criterion 2 for downlisting states that one ecosystem-based reserve
be established in either western or central San Diego County, though no
measure of acreage was indicated in the Recovery Plan. We estimate that
approximately 51,737 ac (20,937 ha) of modeled suitable habitat occurs
in San Diego County (Service 2021, appendix D). Approximately 62
percent (32,207 ac (13,034 ha)) of this area is located on lands that
have been either conserved, are in conservation easement, or are
located on public or DoD lands. Current efforts are also underway to
develop an HCP for San Diego County that would benefit Stephens'
kangaroo rat and other listed species. Though surveys are being
conducted in a reserve near Ramona Grassland, the HCP for San Diego
County is not yet finalized, and no ecosystem-based reserve has been
established on private lands in San Diego County. However, we have also
identified lands on DoD facilities in San Diego County that are
important for the long-term persistence of Stephens' kangaroo rat
throughout its range. In coordination with the Service, INRMPs for the
species have been developed and implemented at three military
installations (Camp Pendleton, Detachment Fallbrook, and Warner
Springs) (U.S. Navy 2016, entire; U.S. Marine Corps 2018, entire).
These INRMPs provide for ongoing management and include actions that
assist in the long-term conservation of Stephens' kangaroo rat on DoD
lands.
The total modeled habitat within DoD lands with INRMPs is 11,957 ac
(4,839 ha). The amount of modeled habitat at each installation is
approximately 7,619 ac (3,083 ha) for Camp Pendleton, 2,663 ac (1,078
ha) for Detachment Fallbrook, and 1,675 ac (678 ha) for Warner Springs.
The INRMPs are based, to the maximum extent practicable, on ecosystem
management principles and provide for the management of Stephens'
kangaroo rat and its habitat while sustaining necessary military land
uses (Service 2021, pp. 39-43). Therefore, the INRMPs effectively meet
the intent of the draft recovery plan's criterion 2 for downlisting by
providing long-term management for the conservation of Stephens'
kangaroo rat with one ecosystem-based reserve in western San Diego
County at Camp Pendleton and Detachment Fallbrook.
We conclude that the number and amount of reserved lands being
protected, funded, and managed in Riverside and San Diego Counties
provide conservation benefits to Stephens' kangaroo rat and exceed the
downlisting criteria in the draft recovery plan.
The delisting criteria for the Stephens' kangaroo rat includes: (1)
Establishment of a minimum of five reserves in western Riverside
County, of which one is ecosystem-based, and that encompass at least
16,500 ac (6,675 ha) of occupied habitat that is permanently protected,
funded, and managed; and (2) establishment of two ecosystem-based
reserves in San Diego County.
In Riverside County a total of 36,465 ac (14,757 ha) has been
conserved, including 19,378 ac (7,842 ha) in eight Stephens' kangaroo
rat core reserves, meeting the delisting criteria for the number of
reserves needed. However, one ecosystem-based reserve is still needed
in Riverside County. We expect additional lands will be conserved
through further implementation of the two HCPs. In San Diego County,
the number of ecosystem-based reserves (currently one at Camp Pendleton
and Detachment Fallbrook) does not meet the criteria identified in the
draft recovery plan for delisting for having two ecosystem-based
reserves, with one in central San Diego County and one in western San
Diego County. Therefore, we will not meet all of the delisting criteria
in the draft recovery plan until there is: (1) At least one ecosystem-
based reserve that is occupied, permanently protected, funded, and
managed is established in Riverside County; and (2) at least one
additional ecosystem-based reserve that is occupied, permanently
protected, funded, and managed is established in central San Diego
County.
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species is an ``endangered species'' or a ``threatened
species.'' The Act defines an ``endangered species'' as a species that
is in danger of extinction throughout all or a significant portion of
its range and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an endangered species or a threatened
species because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
[[Page 8971]]
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects. We consider these same five
factors in downlisting a species from endangered to threatened (50 CFR
424.11(c)-(e)).
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources. The term ``threat'' may
encompass--either together or separately--the source of the action or
condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the species' expected response and
the effects of the threats--in light of those actions and conditions
that will ameliorate the threats--on an individual, population, and
species level. We evaluate each threat and its expected effects on the
species, then analyze the cumulative effect of all of the threats on
the species as a whole. We also consider the cumulative effect of the
threats in light of those actions and conditions that will have
positive effects on the species--such as any existing regulatory
mechanisms or conservation efforts. The Secretary determines whether
the species meets the definition of an ``endangered species'' or a
``threatened species'' only after conducting this cumulative analysis
and describing the expected effect on the species now and in the
foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
foreseeable future extends only so far into the future as we can
reasonably determine that both the future threats and the species'
responses to those threats are likely. In other words, the foreseeable
future is the period of time in which we can make reliable predictions.
``Reliable'' does not mean ``certain''; it means sufficient to provide
a reasonable degree of confidence in the prediction. Thus, a prediction
is reliable if it is reasonable to depend on it when making decisions.
It is not always possible or necessary to define foreseeable future
as a particular number of years. Analysis of the foreseeable future
uses the best scientific and commercial data available and should
consider the timeframes applicable to the relevant threats and to the
species' likely responses to those threats in view of its life-history
characteristics. Data that are typically relevant to assessing the
species' biological response include species-specific factors such as
lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
Analytical Framework
The species report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to, and conservation measures for, the species and its habitat.
The species report does not represent our decision on whether the
species should be reclassified as a threatened species under the Act.
It does, however, provide the scientific basis that informs our
regulatory decisions, which involve the further application of
standards within the Act and its implementing regulations and policies.
The following is a summary of the key results and conclusions from the
species report; the full species report (Service 2021, entire) can be
found at Docket No. FWS-R8-ES-2019-0113 on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
To assess Stephens' kangaroo rat's current and future viability and
demographic risks, we consider the concepts of resilience,
representation, and redundancy (Shaffer and Stein 2000, pp. 301-302;
Wolf et al. 2015, entire). Briefly, resiliency supports the ability of
the species to withstand environmental and demographic stochasticity
(e.g., wet or dry, warm or cold years), redundancy supports the ability
of the species to withstand catastrophic events (e.g., long-term
droughts, severe wildfire), and representation supports the ability of
the species to adapt over time to long-term changes to environmental
conditions or habitat (e.g., climate changes, successional changes to
habitat). In general, the more resilient and redundant a species is and
the more representation it has, the more likely it is to sustain
populations over time, even under changing environmental conditions.
Using these principles, we identified the species' ecological
requirements for survival and reproduction at the individual,
population, and species levels, and described the beneficial and risk
factors influencing the species' viability.
Summary of Biological Condition and Threats
In this section, we summarize the biological condition of the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability. For a complete discussion
and additional information on the biological condition of the species,
see the species report (Service 2021, entire).
The Stephens' kangaroo rat is currently found in a patchy
distribution in Riverside and San Diego Counties, California. The
distribution and density of populations of the Stephens' kangaroo rat
can vary temporally, within and between years, and spatially, depending
on natural changes in habitat conditions and succession of plant
communities. There has been no formal assessment of the population
structure for the Stephens' kangaroo rat such as the minimum habitat
patch size or an estimate of the minimum number of interconnected
patches needed to support a stable population. Researchers believe that
the species' population structure in southern California follows a
metapopulation dynamic in which the availability of suitable habitat
patches is both spatially and temporally dynamic and is based on the
equilibrium between colonization and extirpation of local populations
(Brehme et al. 2006, p. 6). We conclude that the Stephens' kangaroo rat
continues to occur in suitable habitat in seemingly stable populations
across its range.
We evaluated all potential threats related to the Stephens'
kangaroo rat from: (1) Habitat loss, fragmentation, modification,
degradation, or other habitat changes due to urban and agricultural
development, invasive plants, wildfire, or prescribed burns; (2)
overutilization of the species for commercial, recreational,
scientific, or educational purposes; (3) disease or predation; (4) use
of rodenticides; and (5) the effects of climate change (resulting in
increased effects from
[[Page 8972]]
drought, higher temperatures, precipitation changes, and wildfire). We
identified the main threats to the species to be the threats identified
in (1) above.
The timeframe for analysis of the threats facing the Stephens'
kangaroo rat varies. However, the major threat driving the overall
status of Stephens' kangaroo rat is from the effects of past habitat
fragmentation. Based on biological and environmental factors and how
those are influenced by the driving threats acting on the species, we
consider 25-30 years to be the foreseeable future within which we can
reasonably determine that the future threat, and Stephens' kangaroo
rat's response to the threat, of habitat fragmentation is likely. This
time period includes multiple generations of the species and allows
adequate time for existing conservation efforts (such as current land
management or additional land protections implemented through existing
management plans) to be implemented or changes in threats to be
indicated through population responses.
Much of the loss of suitable Stephens' kangaroo rat habitat
occurred due to urban and agricultural development in the early to
middle 20th century. This loss resulted in fragmentation of the
species' range, which currently impacts the species' ability to
colonize, recolonize, disperse, and maintain a functioning
metapopulation structure within these areas. Current conservation
efforts have helped to preserve and manage a significant amount of
habitat for Stephens' kangaroo rat across its range. However, some of
these lands are not connected, making fragmentation an issue even for
some preserved lands and the overall species population dynamics in the
future. Because of fragmentation, mechanisms such as colonization and
recolonization or population enhancement through dispersal will be
unable to function in portions of the species' range. Small scale
habitat loss is still occurring outside of conserved areas, causing an
increase in population isolation and habitat disconnectivity. In order
to counteract these impacts, additional conservation of lands and
management actions will continue to be necessary for the species.
Although we have not currently identified any population losses as a
result of the current level of habitat fragmentation, we have
determined habitat fragmentation to be the main driver of future
species' viability and for this to be a moderate-level threat for
Stephens' kangaroo rat populations in both western Riverside and San
Diego Counties.
Based on the best scientific data available for our analysis, we
found the current major stressor to Stephens' kangaroo rat is the
latent effects of large-scale habitat loss which has resulted in
habitat fragmentation for the species. Currently, populations of the
species persist throughout its historical range and likely maintain
subsequent genetic makeup and adaptive capabilities. The species
currently has a sufficient number of managed populations distributed
throughout its historical range (across two counties), providing a
margin of safety to withstand catastrophic events. There are also
several populations that are presently managed over a large area that
could withstand stochastic events. Based on this analysis, Stephens'
kangaroo rat is currently maintaining its representation, redundancy,
and resiliency. In the future, the impacts from habitat fragmentation
may continue to affect Stephens' kangaroo rat populations, and if not
addressed could impact their overall fitness by reducing representation
(reducing genetic heterozygosity, increased inbreeding), resiliency
(impacts from stochastic events), and redundancy (fewer healthy
populations, fewer populations overall). This suggests that restoration
of connectivity or translocation efforts may be needed to maintain
sufficient populations in the future.
Other potential habitat destruction or modification-related threats
evaluated in the species report include habitat impacts from nonnative
ungulates, off-highway vehicle activity, and the effects of fire
suppression or prevention activities. We determined that these were
either not a threat (nonnative ungulates) or represented a low-level
threat to the species' habitat. Disease or overutilization for
commercial, recreational, scientific, or educational purposes are not
presently threats to the species and are not expected to change in the
future. Predation is not a threat to the species beyond impacts to a
few individuals, now or into the future. We determined that the risk of
mortality or injury as a result of the use of rodenticides represents a
low-level risk at the individual level both currently and in the future
due to the current restrictions for general public use of rodenticides
and the conduct of these activities in a manner consistent with Federal
and applicable State laws, including Environmental Protection Agency
label restrictions for pesticide application. Wildfire is both a
natural and human-caused event in the currently occupied range of the
Stephens' kangaroo rat. In general, studies have found that wildland or
controlled fire management actions represent a beneficial effect to the
species. At present, core reserves and other areas in Riverside County
are currently being managed for conversion of habitat due to the recent
establishment of a nonnative invasive plant, Oncosiphon piluliferum
(stinknet), which represents a low-level, but not yet rangewide, threat
to Stephens' kangaroo rat habitat.
We also assessed the effects of climate change on Stephens'
kangaroo rat and its habitat. The best available downscaled regional
data using representative concentration pathways for moderate (RCP4.5)
and high (RCP8.5) emission concentrations on current and potential
future trends related to climate change within locations occupied by
the Stephens' kangaroo rat indicate that the areas occupied by the
species will be subject to increased temperatures and extreme
precipitation events with extended periods of drought. Based on model
projections, we can reliably predict this will continue until at least
the mid- to late-21st century (2060 to 2100). The effects to the
habitat occupied by the Stephens' kangaroo rat from climate change from
precipitation changes appear to be minimal. Temperature increases for
the area may have an effect on the species' habitat by increasing the
potential for wildfires due to drier fuel loads. However, drought
conditions appear to provide favorable conditions to the species by
reducing cover and creating open spaces. Food resources (seeds) will
likely remain stable. The cumulative effects of climate change and
wildfire, which could result in an increase in the extent of nonnative
grasslands, represents a low-level threat to the Stephens' kangaroo rat
and its habitat, and, based on climate change projections, is likely to
remain at this level to the 2060s.
We note that, in determining the threats facing the species, we
have not only analyzed individual effects on the species, but we have
also analyzed their potential cumulative effects and incorporated the
cumulative effects into the species report for the species. To assess
the current and future condition of the species, we undertake an
iterative analysis that encompasses and incorporates the threats
individually and then accumulates and evaluates the effects of all the
factors that may be influencing the species, including threats and
conservation efforts. Because we consider not just the presence of the
factors, but to what degree they collectively influence risk to the
entire species, our assessment
[[Page 8973]]
integrates the cumulative effects of the factors and replaces a
standalone cumulative effects analysis.
Currently implemented and ongoing conservation measures including
Federal and State mechanisms provide protections to the Stephens'
kangaroo rat and its habitat. These include HCPs and INRMPs that
benefit Stephens' kangaroo rat and its habitat by implementing
management actions that contribute to species' conservation and long-
term viability. The Act also provides protections through section 7 and
the consultation process and through section 10 using incidental take
permits on non-Federal lands (see Current Conservation Efforts).
Summary of Comments and Recommendations
In the proposed rule published on August 19, 2020 (85 FR 50991), we
requested that all interested parties submit written comments on the
proposal by October 19, 2020. We also contacted appropriate Federal and
State agencies, scientific experts and organizations, and other
interested parties and invited them to comment on the proposal.
Newspaper notices inviting general public comment were published in The
Press-Enterprise and San Diego Union-Tribune. We did not receive any
requests for a public hearing. All substantive information received
during the comment period has either been incorporated directly into
this final determination or addressed below.
Peer Reviewer Comments
As discussed in Supporting Documents above, we received comments
from one peer reviewer. We reviewed all comments we received from the
peer reviewer for substantive issues and new information regarding the
information contained in the species report. The peer reviewer
generally concurred with our methods and conclusions, and provided
additional information, clarifications, and suggestions to improve the
final species report. Peer reviewer comments are addressed in the
following summary and were incorporated into the final species report
as appropriate (Service 2021, entire).
Comments from peer review were generally in support of our findings
and analysis. The main concern was how we developed our internal
spatial model, which was used to estimate Stephens' kangaroo rat
habitat. This model has since been replaced by a more robust model
created by CBI (Spencer et al. 2021, entire). The RCHCA, who implements
the SKR HCP, supported the development of this finer scale model for
Stephens' kangaroo rat, which uses Sentinel-2 satellite imagery that
can be more readily updated in the future to look at changes in habitat
quality (Spencer et al. 2021, p. 25). As a result, the species report
and this final rule have been updated with new information using the
new habitat suitability model.
The reviewer also commented on the relatively low genetic diversity
for the species, compared to the high genetic diversity typical of
other Dipodomys species. In the species report, we discuss that the
Stephens' kangaroo rat genetic diversity is the highest in the northern
part of the range and decreases in the southern part of the range.
Results from a genetic study indicate that the entire range was
historically connected and functioning as one continuous population.
However, there is evidence that recent habitat fragmentation has caused
occurrences within the population to become increasingly isolated,
creating a metapopulation-like structure across the range. As described
in the Summary of Biological Condition and Threats, we consider habitat
fragmentation and isolation a threat to the species and potentially the
major cause of the species' lower genetic diversity.
Partner Reviewer Comments
We received comments from the CDFW and from the DoD facilities
identified above regarding the proposed rule. Overall, the commenters
supported the finding and provided information to improve the document.
One commenter had questions about the original habitat model we used,
which has since been replaced with a more robust model. Another
commenter provided information about the effects of climate change that
has been incorporated into the updated species report (Service 2021).
Another comment asked that we clarify whether ``conserved lands'' on
DoD installations is based on management via INRMPs. When discussing
conserved lands, we are including modeled habitat that occurs on DoD
facilities that are managed by INRMPs and are important for the long-
term persistence of Stephens' kangaroo rat throughout its range.
Modeled habitat on DoD lands were included as conserved lands in the
species report and in our analysis because they are not likely to be
impacted by urban and agricultural development and provide for
conservation of the species. The INRMPs implemented on military lands,
are expected to continue to provide protections to the species and its
habitat. Therefore, we anticipate that current levels of military
activity are expected to continue into the foreseeable future, allowing
Stephens' kangaroo rat to continue coexisting on military lands.
We also received comments and questions specific to the 4(d) rule
from three DoD installations about how a 4(d) rule would affect
consultation. Nothing in the 4(d) rule for Stephens' kangaroo rat will
change in any way the recovery planning provisions of section 4(f) of
the Act, the consultation requirements under section 7 of the Act, or
the ability of the Service to enter into partnerships for the
management and protection of Stephens' kangaroo rat. However,
interagency cooperation may be further streamlined through planned
programmatic consultations for the species between us and other Federal
agencies, where appropriate. Comments 1-5 below are some additional
questions from military installations and our responses regarding the
4(d) rule:
Comment 1: Several commenters asked whether other activities not
specified in the 4(d) rule could be exempted. They stated that under
special conditions actions may not be done specifically for Stephens'
kangaroo rat but may have a net benefit for the species and they
wondered if those activities might also apply to the 4(d) rule.
Commenters provided examples of the types of activities they wanted us
to consider exempting under the 4(d) rule (i.e., ripping of soil, chain
dragging, mechanical scraping, pre-suppression fire activities,
additional wildfire suppression activities, and other activities
associated with grazing, such as erecting a fence).
Response: The specific activities associated with ripping of soil,
chain dragging, mechanical scraping or other non-specific wildfire
suppression activities are not included in the 4(d) rule as exceptions
from the general section 9 take prohibitions identified under the Act.
We included exceptions that are incidental to activities conducted
within the range of the Stephens' kangaroo rat for the purpose of
reducing the risk or severity of habitat modification resulting from
wildfire and designed to maintain or restore open habitat for Stephens'
kangaroo rat, even if these actions may result in some short-term or
small level of localized negative effect to Stephens' kangaroo rats.
Therefore, activities conducted under plans developed in coordination
with the Service that are for the purpose of maintaining, enhancing, or
restoring open areas and are beneficial for providing the habitat needs
of Stephens' kangaroo rat will be exceptions from
[[Page 8974]]
section 9(a)(1) of the Act as discussed above. Activities that are not
conducted for the purpose of Stephens' kangaroo rat habitat enhancement
are not covered under the 4(d) rule and should be discussed further
through consultation and coordination under applicable sections of the
Act.
Comment 2: A few commenters asked whether the 4(d) rule exempts
incidental take for plans that were not developed in coordination with
the Service.
Response: We did not provide exceptions from section 9(a)(1) of the
Act for plans that are not developed in coordination with the Service.
Specific activities and their impacts will need to be identified and
coordinated with the Service. Activities identified in the 4(d) rule
could be exempted if they are under a plan developed in coordination
with the Service and conducted for the purpose of providing benefits to
the species or maintaining or restoring habitat for Stephens' kangaroo
rat. Note, Federal agencies that fund, permit, or carry out the
activities described in Comment 1 will still need to ensure, in
consultation with the Service, that the activities are not likely to
jeopardize the continued existence of the species.
Comment 3: A few commenters asked whether specific activities in
their INRMP could be covered by the 4(d) rule and whether these
activities still required coverage under a biological opinion or a
section 10(a)(1)(A) permit. Could activities be covered by the 4(d)
rule rather than modifying a biological opinion?
Response: The 4(d) rule for Stephens' kangaroo rat will not change
in any way the consultation requirements under section 7 of the Act, or
our ability to enter into partnerships for the management and
protection of the Stephens' kangaroo rat. Regardless of the provisions
of a 4(d) rule, Federal agencies are still required to consult with the
Service for actions that may affect a listed species. However, if
activities are exempted under the 4(d) rule, the Federal action agency
will not need take coverage through a biological opinion or a section
10(a)(1)(A) permit. Therefore, the consultation process may be
streamlined. However, Federal agencies that fund, permit, or carry out
the activities described in this rule will still need to ensure, in
consultation with the Service, that the activities are not likely to
jeopardize the continued existence of the species.
Comment 4: A commenter asked how interagency cooperation may be
further streamlined through planned programmatic consultations for the
species between Federal agencies and the Service.
Response: Programmatic consultations can streamline consultation
workload for both the Service and our Federal partners. Forms can be
developed to help the Service, Federal agencies, and the regulated
public easily understand whether a given action complies with the 4(d)
rule and programmatic consultation or not. While work is required up
front to complete this kind of consultation, significant streamlining
should result once the consultation is completed.
Comment 5: A commenter requested that the Service consider
additional exemptions from section 9 prohibitions for certain military
training activities on military installations with a completed INRMP.
The commenter is requesting exemption language for specific activities
that the Service has previously determined are ``not likely to
adversely affect'' the Stephens' kangaroo rat through prior section 7
consultations.
Response: We included certain activities in the 4(d) rule that we
determined have minimal impacts on the species or its habitat or that
will be beneficial for the species' conservation. Including previous
actions would not be appropriate, even if they were previously
determined as ``not likely to adversely affect'', impacts of actions
may vary or conditions for the species may have changed. Activities
within plans that are developed in coordination with the Service and
that are conducted for the purpose of maintaining, enhancing, or
restoring open areas and are beneficial for providing the habitat needs
of Stephens' kangaroo rat will be exempted under section 9(a)(1) of the
Act as discussed in the Provisions of the 4(d) Rule, below. Other
activities that are not conducted for the purpose of Stephens' kangaroo
rat habitat enhancement are not covered under the 4(d) rule and should
be discussed further through consultation with the Service.
Public Comments
We received public comments from 22 members of the public. The
majority of individual commenters did not agree that the species should
be downlisted to threatened status, although most did not provide
substantive information. Commenters expressed concerns about: (1) A
lack of conserved habitat due to increased development, (2) the effects
from climate change, (3) a lack of information about population trends,
and (4) the potential inadequacy of DoD lands to conserve the species
or qualify as ecosystem-based reserves.
Comment 6: One commenter pointed out that the Service produced 24
no-jeopardy biological opinions since 2014 and indicated that
understanding the cumulative impacts to the Stephens' kangaroo rat over
the years is a metric that must be included in evaluating the proposal
to downlist because it provides data on how much habitat is no longer
available for recovery.
Response: We considered the best available information when
assessing the status of the Stephens' kangaroo rat. In our evaluation
of the amount of potentially available suitable habitat for the
species, we considered impacts from current and future threats as well
as their cumulative effects in our status evaluation including any
activities associated with Service-issued biological opinions.
Comment 7: Four commenters expressed concern over the effects from
climate change and the negative impacts to Stephens' kangaroo rat,
including flooding, changes in food availability, precipitation, and
temperature. The commenters believe these threats are more deleterious
than the Service's determination in the species report and that the
species should not be downlisted. One commenter indicated that future
impacts cannot be mitigated by management actions, and another
commenter believes findings from researchers (Wilkening et al. 2019,
entire) run counter to the Service's determination that climate change
is a low to moderate threat.
Response: We considered the best available information when
assessing the status of the Stephens' kangaroo rat. This included an
evaluation of threats, including projected impacts from climate change.
Climate change at the levels projected in models could impact Stephens'
kangaroo rat habitat in the future. That said, the effects of climate
change may also benefit the Stephens' kangaroo rat by drying of the
habitat, which would most likely reduce vegetation and thatch buildup,
which in turn could create more open habitat conditions that benefit
Stephens' kangaroo rat. The availability of food resources (primarily
grass seeds) is not expected to be greatly impacted from environmental
changes with annual grasses favoring wet years and perennial grasses
favoring dry years. Some shifts from perennial grasses to nonnative
annual grasses may occur, but southern California grasslands have a
moderate resistance and recovery potential from such climatic changes
(EcoAdapt 2017, entire). The research cited by the commenter (Wilkening
et al. 2019, p. 8) states that Stephens' kangaroo rat appears to be
resilient to direct impacts
[[Page 8975]]
of climate change, and that management strategies, including
translocations, can be used to offset potential indirect impacts from
climate change. Based on our assessment, we do not find that the
current threats associated with climate change facing Stephens'
kangaroo rat are to such an extent and magnitude that the species meets
the definition of an endangered species.
Comment 8: Six commenters expressed concern of future development
increases and the resulting decline in habitat quantity and quality
available to Stephens' kangaroo rat.
Response: We considered the best available information when
assessing the status of the Stephens' kangaroo rat, including an
evaluation of impacts from future development and areas protected and
managed for the species. We acknowledge that development within the
range of Stephens' kangaroo rat will continue to occur in the future.
However, the rate, extent, and magnitude of development has been
greatly curtailed due to conservation measures currently in place to
conserve habitat for the species. Although future development will
continue to be an ongoing threat, large areas of conserved habitat are
managed by the SKR HCP and Western Riverside MSHCP to help recover
Stephens' kangaroo rat and account for the majority of conserved lands
in Riverside County (35,888 ac (14,524 ha)). In San Diego County,
32,207 ac (13,034 ha) are considered conserved. DoD installations
manage for Stephens' kangaroo rat through implementation of INRMPs on
approximately 11,957 ac (4,839 ha). Implementation of management
actions for the species through HCPs in Riverside County and INRMPs in
San Diego County help to prevent further habitat loss. We expect that
additional lands will be conserved in the future through the two
existing HCPs as part of their permit agreements. Therefore, we do not
consider future development to be a driving force for determining the
status of the species into the foreseeable future based on the level of
threats associated with future development.
Comment 9: Two commenters expressed concern with defining DoD lands
as ``conserved'' and do not believe these lands adequately protect
Stephens' kangaroo rat. They argue that additional habitat needs to be
conserved before we downlist the species and that DoD lands are not
adequate to conserve the species or qualify as ecosystem-based
reserves.
Response: When analyzing the threat to the Stephens' kangaroo rat
from development, we considered lands conserved if they were not likely
to be impacted by urban and agricultural development. Modeled habitat
within conserved lands for both Riverside and San Diego Counties
included conservation easements, conserved lands, and public/quasi-
public, Federal, State, and DoD lands that are not likely to be
impacted by urban and agricultural development. DoD lands were included
because of the commitment military installations are making to manage
for Stephens' kangaroo rat through implementation of their INRMPs. The
development of the INRMPs was in coordination with both the Service and
CDFW, and these plans include specific measures for habitat protection
and conservation for the Stephens' kangaroo rat. Based on prior survey
reports, occurrences of Stephens' kangaroo rat are doing well under
current management and the Service has no reason to conclude that the
military's management approaches will change in the future. Therefore,
we have determined it appropriate to consider DoD lands being managed
under INRMPs to be conserved for the purposes of restricting
development as well as managing other threats to the species.
Ecosystem-based reserves are anticipated to retain their biological
diversity and are associated with large areas of suitable habitat.
Current implementation of actions by the installations through their
INRMPs effectively meets the intent of the draft recovery plan's second
criterion for downlisting by providing long-term management for the
conservation of Stephens' kangaroo rat with one ecosystem-based reserve
in western San Diego County at Camp Pendleton and Detachment Fallbrook.
Comment 10: Two commenters expressed concerns over habitat
fragmentation, with one commenter stating that fragmented and isolated
populations are continuing to be impacted by development, fire, and
off-road activities, notably in San Diego County. In the commenters'
view, until all fragmented populations are showing a strong and steady
increase, Stephens' kangaroo rat should not be downlisted from
endangered to threatened.
Response: Due in part to the threats that the commenters cited, the
Stephens' kangaroo rat will continue to receive the Act's protections
as a threatened species. Past rapid habitat loss from development was
one of the reasons for initially listing the Stephens' kangaroo rat
with an endangered status. Implementation of conservation efforts for
protecting and managing habitat has curtailed large-scale habitat
losses, and those measures along with other actions have largely met
the intent of the criteria in the draft recovery plan for downlisting
the species to threatened. Based on the best available data, we have
determined that habitat fragmentation remains a moderate-level stressor
to the Stephens' kangaroo rat and its habitat, and we can reliably
predict that these habitat conditions are likely to remain into the
foreseeable future. Translocations could potentially be used in the
future, if necessary, to reintroduce the species back into suitable
areas and help restore connectivity. Ongoing genetics work will help
inform if and where translocations are needed. These efforts and
habitat restoration efforts would help to better connect occupied areas
and mitigate the impacts of fragmentation.
Comment 11: One commenter stated that habitat is constantly
changing and that it may become less suitable for Stephens' kangaroo
rat through lack of management, inappropriate management, or other
competing management priorities. Even in situations where land has been
protected for conservation purposes (as opposed to the simple
restriction of conversion to other land uses), Stephens' kangaroo rat
may not be the priority for management, and other conservation uses may
compete for management resources and priorities.
Response: Activities to help protect Stephens' kangaroo rat and its
habitat are being implemented through existing management and
conservation plans. These actions that provide a benefit to the
Stephens' kangaroo rat as identified in these plans (HCPs, INRMPs) will
continue to be implemented after the species is downlisted in
coordination with the Service. A rangewide management and monitoring
plan has also recently been completed for the species to help
coordinate recovery efforts with partners and facilitate Stephens'
kangaroo rat management throughout its range (Spencer et al. 2021,
entire).
Comment 12: Several commenters raised concerns with downlisting
Stephens' kangaroo rats based on the lack of current population or
density estimates and lack of recent and consistent rangewide
monitoring for the species. One commenter also indicated that the use
of modeled suitable habitat does not capture the status and trends of
population size and density in a manner sufficient to decide the actual
health of the Stephens' kangaroo rat population.
Response: The habitat suitability model used in the species report
is used to further understand the species status,
[[Page 8976]]
as population estimates are unknown and fluctuate greatly. Although
population data is incomplete, habitat models and near term population
trends show sufficient resiliency that Stephens' kangaroo rat is not in
danger of extinction now, and therefore does not meet the definition of
an endangered species. The modeling provides an estimate of how much
suitable habitat is available in each of the five ecoregions described.
Based on the new habitat suitability model, 184,367 ac (74,610 ha) of
modeled habitat was identified for the Stephens' kangaroo rat, with
approximately 131,343 ac (53,153 ha) located in Riverside County and
51,737 ac (20,937 ha) in San Diego County. Until additional,
standardized population monitoring information becomes available across
the entire range of the species and robust statistical models are
developed, we consider the results from the CBI spatial analyses to be
based on the best available information and support sufficient
resiliency for the species across its range.
Comment 13: One commenter stated that conservation requirements
described in the draft recovery plan have yet to be achieved--
specifically, the need for 15,000 ac (6,070 ha) over four reserves
(instead of eight as indicated in the species report) in Riverside
County and the need for one ecosystem-based reserve in San Diego
County. The Service's reasoning that the requirements need not be met
to achieve species recovery is flawed.
Response: We assessed the status of the Stephens' kangaroo rat and
determined that the species meets the definition of threatened. The
draft recovery plan identified establishment of four reserves, which
encompass at least 15,000 ac (6,070 ha) in western Riverside County. To
date approximately 35,888 ac (14,524 ha) have been conserved through
HCPs in western Riverside County, including 19,378 ac (7,842 ha) that
have been conserved in the eight managed core reserves. A total of
17,118 ac (6,927 ha) have been conserved in the four largest reserves.
Therefore, the current total reserve number and acreages exceed that
identified in the draft recovery plan.
The draft recovery plan also identified that one ecosystem-based
reserve be established in San Diego County. In San Diego County, 32,207
ac (13,034 ha) are conserved with 11,957 ac (4,839 ha) of modeled
habitat among the three DoD installations. The installations are
actively managing for the species through implementation of their
INRMPs, and we find that DoD will continue to manage these areas in the
future. The INRMPs are based, to the maximum extent practicable, on
ecosystem management principles and provide for the management of
Stephens' kangaroo rat and its habitat while sustaining necessary
military land uses. The DoD has a close working relationship with the
Service and CDFW and has shown a commitment through their actions in
protecting sensitive species and their habitat including Stephens'
kangaroo rat. Based on the latest survey reports, occupancy is stable
or increasing on military lands and Stephens' kangaroo rats do not
appear to be negatively impacted from the military activities that have
been occurring for many years. Furthermore, we have determined that
existing conservation actions, such as those implemented in the INRMPs,
are expected to continue to provide protections for the species and its
habitat; therefore, we do not predict a change in these trends in the
future. We have determined that the conservation activities occurring
at DoD facilities in San Diego County meet the intent of the recovery
criterion 2 to downlist. Therefore, the number and amount of reserved
lands being protected, funded, and managed in Riverside and San Diego
Counties provide conservation benefits to Stephens' kangaroo rat and
meet the intent of the downlisting criteria.
Comment 14: One commenter indicated the species should not be
downlisted because the Service would protect Stephens' kangaroo rats
more if they were listed as endangered.
Response: We do not consider whether a species is more or less
protected as either endangered or threatened in our determination of
whether a species warrants reclassification. In this downlisting
determination, the Stephens' kangaroo rat will continue to have all the
section 9 take prohibitions as an endangered species except for certain
activities identified under section 4(d) for the species. We have
determined that these exceptions will not significantly impact the
species' status and provide for incentives to landowners to further
work toward and provide conservation for the species. In addition,
section 7 of the Act requires consultation for both endangered and
threatened species to ensure Federal actions do not jeopardize the
continued existence of the species.
Comment 15: The San Diego County Fire Authority requested that the
proposed 4(d) rule account for local jurisdictions that have more
stringent defensible space requirements than the State of California
fire code.
Response: We have amended the 4(d) language in the final rule to
include local fire codes/ordinances using the additional language
recommended by the commenter.
Determination of Stephens' Kangaroo Rat Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines an ``endangered species'' as a
species that is in danger of extinction throughout all or a significant
portion of its range and a ``threatened species'' as a species that is
likely to become an endangered species within the foreseeable future
throughout all or a significant portion of its range. For a more
detailed discussion on the factors considered when determining whether
a species meets the definition of an endangered species or a threatened
species and our analysis on how we determine the foreseeable future in
making these decisions, please see Regulatory and Analytical Framework.
Status Throughout All of Its Range
After evaluating threats to the species and assessing the
cumulative effect of the threats under the section 4(a)(1) factors, we
find that the current viability of the Stephens' kangaroo rat is higher
now than at the time of listing due to a reduction of threats,
discovery of additional areas occupied by the species, and
implementation of extensive conservation actions and management by
partnering agencies throughout the species' range.
In particular, the Stephens' kangaroo rat was listed as endangered
in 1988, mostly due to the direct and indirect effects of rapid loss,
degradation, and fragmentation of habitat for the species. Since the
time of listing, numerous searches and surveys have resulted in the
discovery of additional areas where Stephens' kangaroo rat occurs.
Currently, 18 areas (12 areas in Riverside County and 6 areas in San
Diego County) have been identified, 7 more than what was known at the
time of listing. Although not considered a population expansion since
listing, the discovery of additional occupied areas has reduced the
level of threat for the species as a whole and increased the redundancy
for the species making it more able to recover from catastrophic
events. While we do not have specific quantified information on the
status and trends for populations of the species, no significant
population declines or
[[Page 8977]]
extirpations have been observed since listing.
Also, since the time of listing, several large-scale habitat
conservation efforts (SKR HCP, Western Riverside MSHCP) have been
implemented by the RCHCA and Regional Conservation Authority,
respectively. These two conservation efforts have established a total
of eight adaptively managed reserves for Stephens' kangaroo rat in
Riverside County. In addition, the DoD developed INRMPs for conserving
the species and its habitat on three military facilities in San Diego
County. DoD works with the Service in development and implementation of
the plans to consider and conserve threatened and endangered species
and their habitat. Ongoing monitoring studies and conservation actions
implemented under the Sikes Act authority at these three DoD
installations in San Diego County provide important conservation
benefits to the Stephens' kangaroo rat, as summarized above and in the
species report (Service 2021, pp. 75-79).
Together, these conservation efforts in Riverside and San Diego
Counties have conserved approximately 68,701 ac (27,802 ha) of modeled
Stephens' kangaroo rat habitat throughout the species' range. These
conservation measures have met the intent of the downlisting criteria
identified in our draft recovery plan.
Thus, after assessing the best available information, we conclude
that the Stephens' kangaroo rat no longer meets the Act's definition of
an endangered species. We therefore proceed with determining whether
the Stephens' kangaroo rat is likely to become endangered within the
foreseeable future throughout all of its range.
Although current conservation efforts have preserved and managed
lands occupied by the species, in some instances these preserved areas
are not connected. In addition, we recognize that localized small-scale
habitat loss is still occurring and the ongoing impacts from past and
future habitat fragmentation will continue to affect the species'
population dynamics. Stephens' kangaroo rat population mechanisms such
as colonization and recolonization or population enhancement through
dispersal will be unable to function in portions of the species' range.
In addition, some areas where the species is found are not located in
preserved or managed lands and the habitat within these areas may be
degraded and not fully provide for the needs of the species causing
additional fragmentation. These threats will result in increasing
population isolation and habitat disconnectivity, and we expect that
additional conservation of lands and management actions will continue
to be necessary for the species.
In consideration of these various impact issues and after assessing
the best scientific and commercial information available, we conclude
that the Stephens' kangaroo rat is not currently in danger of
extinction but is likely to become in danger of extinction in the
foreseeable future throughout all of its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. The court in Center for Biological Diversity v. Everson,
2020 WL 437289 (D.D.C. Jan. 28, 2020) (Center for Biological
Diversity), vacated the aspect of the Final Policy on Interpretation of
the Phrase ``Significant Portion of Its Range'' in the Endangered
Species Act's Definitions of ``Endangered Species'' and ``Threatened
Species'' (79 FR 37578; July 1, 2014) that provided that the Service
does not undertake an analysis of significant portions of a species'
range if the species warrants listing as threatened throughout all of
its range (79 FR 37578, July 1, 2014). Therefore, we proceed to
evaluating whether the species is endangered in a significant portion
of its range--that is, whether there is any portion of the species'
range for which both (1) the portion is significant, and (2) the
species is in danger of extinction in that portion. Depending on the
case, it might be more efficient for us to address the ``significance''
question or the ``status'' question first. We can choose to address
either question first. Regardless of which question we address first,
if we reach a negative answer with respect to the first question that
we address, we do not need to evaluate the other question for that
portion of the species' range.
Following the court's holding in Center for Biological Diversity,
we now consider whether there are any significant portions of the
species' range where the species is in danger of extinction now (i.e.,
endangered). In undertaking this analysis for Stephens' kangaroo rat,
we choose to address the status question first--we consider information
pertaining to the geographic distribution of both the species and the
threats that the species faces to identify any portions of the range
where the species is endangered.
The statutory difference between an endangered species and a
threatened species is the time horizon in which the species becomes in
danger of extinction: An endangered species is in danger of extinction
now, while a threatened species is not in danger of extinction now but
is likely to become so in the foreseeable future. Thus, we considered
the time horizon for the threats that are driving the Stephens'
kangaroo rat to warrant listing as a threatened species throughout all
of its range. As stated above, the effects of habitat fragmentation
(limiting dispersal and recolonization, reducing genetic exchange,
isolating populations) is the greatest future threat to the species.
These effects are expected to occur in the future throughout its range
in both western Riverside and San Diego Counties as genetic structuring
continues increase throughout the range. As further explained below,
however, based on limited known current population sizes, distribution,
and trends, it appears that the species currently has a relatively
stable status.
The Service recognizes that fragmentation driven by continuing
development is expected to impact the species into the future, and that
existing conserved and managed lands in both western Riverside and San
Diego Counties have slowed or limited the negative impacts created from
such fragmentation. These land conservation and management efforts are
currently benefiting the species to the level that the species is not
now endangered. The Service further recognizes, however, that because
development and loss of habitat were so extensive and severe in the
past, work will be needed in the future to reconnect populations in
conserved areas currently being managed as ecosystem reserves and areas
outside those considered as ecosystem reserves, such as central San
Diego County.
The impacts from future habitat fragmentation will continue to
isolate populations. This is especially true if land conservation
efforts are not able to conserve areas between populations for
connectivity. In addition, currently occupied lands, both conserved and
not conserved, will require ongoing management such as prescribed fire
or other measures to reduce vegetation buildup ensuring habitat
suitability and persistence of the species. We expect vegetation
control will be an ongoing habitat management concern and the species
will continue to be reliant to some degree on habitat or species
management into the future.
To review these threats in the context of a potential portion of
the Stephens'
[[Page 8978]]
kangaroo rat range that may be endangered, it must be considered that
the Stephens' kangaroo rat's population structure follows a
metapopulation dynamic and is based on the equilibrium between
colonization and extirpation of local populations. And although
estimates have been made on habitat patch size and its availability,
there has been no rangewide systematic assessment of the population
structure for the Stephens' kangaroo rat to determine the specific
requirements or characteristics of stable populations or estimate the
minimum number of interconnected patches needed to support a potential
metapopulation. Without these forms of information, the current and
best available information on habitat conditions, species persistence
within occupied areas, and species distribution indicates that the
current populations appear stable.
The Service understands the importance of habitat and population
connectivity is emphasized for a species that exists through an
equilibrium of colonization and extirpation of local populations. And
as a result of the largescale habitat loss in the past, our analysis
and modeling of the existing suitable habitat available to the
Stephens' kangaroo rat shows the species faces some level of habitat
isolation in both western Riverside and San Diego Counties. The
challenges to the species from this isolation, however, although
currently impacting the species, will most likely manifest themselves
to a greater extent in future generations as the timeframe of genetic
isolation increases and may reach a point where the metapopulation
dynamics of the populations will become further stressed or decline and
not allow for normal bolstering of populations or recolonization. These
analyses indicate that restoring connectivity and/or conducting
translocation efforts may be needed to address the increased difficulty
of the species to recolonize areas in the future and to maintain
populations that may otherwise become extirpated.
The best scientific and commercial data available do not otherwise
indicate that any of the threats to the species and the species'
responses to those threats discussed above are more prevalent or
immediate in any portion(s) of the species' range.
Given this assessment and recognizing that the current amount and
type of reserves for Stephens' kangaroo rat does not meet the draft
recovery plan requirements for delisting, we still conclude that the
best scientific and commercial data available indicate that the time
horizon of threats to the species and the species' responses to those
threats, is similar throughout its range and likely to occur in the
foreseeable future. Therefore, we determine that the Stephens' kangaroo
rat is not in danger of extinction now in any portion of its range, but
that the species is likely to become in danger of extinction within the
foreseeable future throughout all of its range. This is consistent with
the courts' holdings in Desert Survivors v. Department of the Interior,
No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), and
Center for Biological Diversity v. Jewell, 248 F. Supp. 3d, 946, 959
(D. Ariz. 2017).
Determination of Status
Our review of the best scientific and commercial data available
indicates that the Stephens' kangaroo rat meets the definition of a
threatened species. Therefore, we are downlisting the Stephens'
kangaroo rat as a threatened species in accordance with sections 3(20)
and 4(a)(1) of the Act.
In addition, it is our policy, as published in the Federal Register
on July 1, 1994 (59 FR 34272), to identify to the maximum extent
practicable at the time a species is listed, those activities that
would or would not constitute a violation of section 9 of the Act. The
intent of this policy is to increase public awareness of the effect of
a listing on proposed and ongoing activities within the range of the
listed species. Because we are listing this species as a threatened
species, the prohibitions in section 9 will not apply directly. We are
therefore putting into place a set of regulations to provide for the
conservation of the species in accordance with section 4(d), which also
authorizes us to apply any of the prohibitions in section 9 to a
threatened species. The 4(d) rule, which includes a description of the
kinds of activities that will or will not constitute a violation,
complies with this policy.
Final Rule Issued Under Section 4(d) of the Act
Section 4(d) of the Act contains two sentences. The first sentence
states that the Secretary shall issue such regulations as [s]he deems
necessary and advisable to provide for the conservation of species
listed as threatened. The U.S. Supreme Court has noted that statutory
language like ``necessary and advisable'' demonstrates a large degree
of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)).
Conservation is defined in the Act to mean the use of all methods and
procedures which are necessary to bring any endangered species or
threatened species to the point at which the measures provided pursuant
to the Act are no longer necessary. Additionally, the second sentence
of section 4(d) of the Act states that the Secretary may by regulation
prohibit with respect to any threatened species any act prohibited
under section 9(a)(1), in the case of fish or wildlife, or section
9(a)(2), in the case of plants. Thus, the combination of the two
sentences of section 4(d) provides the Secretary with wide latitude of
discretion to select and promulgate appropriate regulations tailored to
the specific conservation needs of the threatened species. The second
sentence grants particularly broad discretion to us when adopting the
prohibitions under section 9.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, courts have upheld rules
developed under section 4(d) as a valid exercise of agency authority
where they prohibited take of threatened wildlife, or include a limited
taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007
U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council
v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D.
Wash. 2002)). Courts have also upheld 4(d) rules that do not address
all of the threats a species faces (see State of Louisiana v. Verity,
853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when
the Act was initially enacted, ``once an animal is on the threatened
list, the Secretary has an almost infinite number of options available
to him with regard to the permitted activities for those species. He
may, for example, permit taking, but not importation of such species,
or he may choose to forbid both taking and importation but allow the
transportation of such species'' (H.R. Rep. No. 412, 93rd Cong., 1st
Sess. 1973).
Exercising this authority under section 4(d), we have developed a
rule that is designed to address the Stephens' kangaroo rat's specific
threats and conservation needs. Although the statute does not require
us to make a ``necessary and advisable'' finding with respect to the
adoption of specific prohibitions under section 9, we find that this
rule as a whole satisfies the requirement in section 4(d) of the Act to
issue regulations deemed necessary and advisable to provide for the
conservation of the Stephens' kangaroo rat. As discussed under Summary
of Biological Condition and Threats, we have concluded that the
Stephens' kangaroo rat is likely to become in danger of extinction
within the
[[Page 8979]]
foreseeable future primarily due to the population effects from habitat
loss and degradation and fragmentation due to isolation of existing
populations.
Because the Stephens' kangaroo rat's population structure follows a
metapopulation dynamic and is based on the equilibrium between
colonization and extirpation of local populations, the importance of
habitat and population connectivity is emphasized. The fragmented
habitat currently limits the species' ability to colonize, recolonize,
disperse, and maintain a functioning metapopulation structure. Habitat
degradation has led to areas being overgrown and not being able to
provide the habitat needs of the species. Because habitat fragmentation
and degradation affects so many aspects of the species' life history
and population dynamics, we have determined that it is appropriate to
apply all the prohibitions and provisions for endangered wildlife under
section 9(a)(1) of the Act for the Stephens' kangaroo rat except as
described and explained below. Applying these section 9(a)(1)
prohibitions will help minimize threats that could cause further
declines in the status of the species. The provisions of this 4(d) rule
will promote conservation of the Stephens' kangaroo rat by encouraging
management of the landscape in ways that meet both land management
considerations and the conservation needs of the species. The
provisions of this rule are one of many tools that we will use to
promote the conservation of the Stephens' kangaroo rat.
Provisions of the 4(d) Rule
This 4(d) rule will provide for the conservation of the Stephens'
kangaroo rat by prohibiting the following activities, except as
otherwise authorized or permitted: Importing or exporting; take;
possession and other acts with unlawfully taken specimens; delivering,
receiving, transporting, or shipping in interstate or foreign commerce
in the course of commercial activity; or selling or offering for sale
in interstate or foreign commerce.
Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct. Some of these provisions have been further defined in
regulation at 50 CFR 17.3. Take can result knowingly or otherwise, by
direct and indirect impacts, intentionally or incidentally. Regulating
incidental and/or intentional take will help preserve the species'
remaining populations, slow their rate of decline, and decrease
cumulative, negative effects from other threats.
As described in our analysis of the species' status, the primary
driver of the Stephens' kangaroo rat's continued viability is the
effects from habitat loss and degradation and habitat fragmentation.
These threats reduce habitat availability and suitability due to a lack
of connectivity between areas and buildup of dense vegetation resulting
from a lack of disturbance. The Stephens' kangaroo rat prefers open,
annual grasslands and open intermediate-seral-stage (secondary
succession) plant communities that are maintained by disturbance. Areas
with dense vegetation (grasses or shrubs) are avoided and are not
suitable habitat. Therefore, activities that are conducted for the
purpose of maintaining, enhancing, or restoring open areas are
beneficial for providing the habitat needs of the species because such
activities contribute to species conservation and long-term species
viability. Such activities may include, but are not limited to:
Nonnative or invasive plant removal, grazing activities for the purpose
of vegetation management, prescribed burns, wildfire suppression
activities, mowing, activities designed to promote native annual forbs
and maintain or restore open habitat for the species, or other actions
related to habitat restoration or species recovery efforts.
More specifically, nonnative, invasive, or noxious plant removal
includes noxious weed control in the course of habitat management and
restoration to benefit Stephens' kangaroo rat or other sensitive
species in the grassland habitat. Livestock grazing includes those
grazing activities conducted as part of habitat management and
restoration to benefit Stephens' kangaroo rat or other native species
in the grassland habitat as described in plans developed in
coordination with the Service. Fire and wildfire management and
suppression includes activities such as prescribed burns, fuel
reduction activities, maintenance of fuel breaks by mowing, defensible
space maintenance actions, and firefighting activities associated with
actively burning fires to reduce risk to life or property. Discing or
blading areas to maintain fuel breaks, unless being conducted for
suppression of active wildfires, should be avoided in areas occupied by
the species unless otherwise approved by the Service.
We find that actions taken by management entities in the range of
the Stephens' kangaroo rat for the purpose of reducing the risk or
severity of habitat degradation and designed to promote native annual
forbs and maintain or restore open habitat for Stephens' kangaroo rat,
even if these actions may result in some short-term or small level of
localized negative effect to Stephens' kangaroo rats, will further the
goal of reducing the likelihood of the species becoming an endangered
species, and will also continue to contribute to its conservation and
long-term viability.
We recognize that the types of actions identified above are often
undertaken by land management entities or private landowners through
inclusion in land management plans, strategies, or cooperative
agreements that are approved by the Service, and that these plans,
strategies, and agreements address identified negative effects to
Stephens' kangaroo rat conservation. We find that such approved plans,
strategies, or agreements, developed in coordination with the Service,
will adequately reduce or offset any negative effects to Stephens'
kangaroo rat so that they will not result in a further decline of the
species. Likewise, actions undertaken by management entities included
in formal land management conservation plans developed in coordination
with the Service (such as INRMPs), where the intended purpose is
consistent with the conservation needs of the Stephens' kangaroo rat,
also provide an overall conservation benefit that contributes to long-
term species viability and reduces the likelihood of the species
becoming endangered in the future.
We may issue permits to carry out otherwise prohibited activities,
including those described above, involving threatened wildlife under
certain circumstances. Regulations governing permits are codified at 50
CFR 17.32. With regard to threatened wildlife, a permit may be issued
for the following purposes: Scientific purposes, to enhance propagation
or survival, for economic hardship, for zoological exhibition, for
educational purposes, for incidental taking, or for special purposes
consistent with the purposes of the Act. The statute also contains
certain exemptions from the prohibitions, which are found in sections 9
and 10 of the Act.
We recognize the special and unique relationship with our State
natural resource agency partners in contributing to conservation of
listed species. State agencies often possess scientific data and
valuable expertise on the status and distribution of endangered,
threatened, and candidate species of wildlife and plants. State
agencies, because of their authorities and their close working
relationships with local governments and landowners, are in a unique
[[Page 8980]]
position to assist us in implementing all aspects of the Act. In this
regard, section 6 of the Act provides that we shall cooperate to the
maximum extent practicable with the States in carrying out programs
authorized by the Act. Therefore, any qualified employee or agent of a
State conservation agency that is a party to a cooperative agreement
with us in accordance with section 6(c) of the Act, who is designated
by his or her agency for such purposes, will be able to conduct
activities designed to conserve Stephens' kangaroo rat that may result
in otherwise prohibited take without additional authorization.
Nothing in this 4(d) rule will change in any way the recovery
planning provisions of section 4(f) of the Act, the consultation
requirements under section 7 of the Act, or our ability to enter into
partnerships for the management and protection of the Stephens'
kangaroo rat. However, interagency cooperation may be further
streamlined through planned programmatic consultations for the species
between us and other Federal agencies, where appropriate.
Required Determinations
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be
prepared in connection with determining a species' listing status under
the Endangered Species Act. We published a notice outlining our reasons
for this determination in the Federal Register on October 25, 1983 (48
FR 49244). This position was upheld by the U.S. Court of Appeals for
the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir.
1995), cert. denied 516 U.S. 1042 (1996)).
Government-To-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes.
We informed all Tribes within the Carlsbad Fish and Wildlife Office
boundary about the proposed downlisting of Stephens' kangaroo rat,
including the 4(d) rule, and species report. We conveyed that a 4(d)
rule will provide additional management flexibility for landowners
within the species' range to conduct weed and fire management
activities and other beneficial actions that are outlined in approved
management plans. We also excluded modeled habitat on Tribal lands from
our viability analysis, including lands owned by the Morongo Band of
Mission Indians, Soboba Band of Luiseno Indians, Cahuilla Band of
Mission Indians, Pechanga Band of Luiseno Mission Indians, Rincon Band
of Luiseno Mission Indians, San Pasqual Band of Diegueno Mission
Indians, Iipay Nation of Santa Ysabel, and Mesa Grande Band of Diegueno
Mission Indians (a small 10-15 acre parcel classified as a Public
Domain Allotment was also excluded in San Diego County). This exclusion
means that we find that actions such as management and habitat
conservation are not required on Tribal lands to achieve species
recovery.
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 Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT).
Authors
The primary authors of this final rule are the staff members of the
Fish and Wildlife Service's Species Assessment Team and the Carlsbad
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.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. Amend Sec. 17.11, in paragraph (h), by revising the entry for
``Kangaroo rat, Stephens' '' under Mammals in the List of Endangered
and Threatened Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Common name Scientific name Where listed Status Listing citations and applicable rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mammals
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Kangaroo rat, Stephens'............ Dipodomys stephensi Wherever found........ T.................. 53 FR 38465, 9/30/1988;
(incl. D. cascus). 87 FR [Insert Federal Register page where the
document begins];
2/17/2022;
50 CFR 17.40(t).\4d\
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.40 by adding paragraph (t) to read as follows:
Sec. 17.40 Special rules--mammals.
* * * * *
(t) Stephens' kangaroo rat (Dipodomys stephensi).
[[Page 8981]]
(1) Prohibitions. The following prohibitions that apply to
endangered wildlife also apply to Stephens' kangaroo rat. Except as
provided under paragraph (t)(2) of this section and Sec. Sec. 17.4 and
17.5, it is unlawful for any person subject to the jurisdiction of the
United States to commit, to attempt to commit, to solicit another to
commit, or cause to be committed, any of the following acts in regard
to this species:
(i) Import or export, as set forth at Sec. 17.21(b) for endangered
wildlife.
(ii) Take, as set forth at Sec. 17.21(c)(1) for endangered
wildlife.
(iii) Possession and other acts with unlawfully taken specimens, as
set forth at Sec. 17.21(d)(1) for endangered wildlife.
(iv) Interstate or foreign commerce in the course of commercial
activity, as set forth at Sec. 17.21(e) for endangered wildlife.
(v) Sale or offer for sale, as set forth at Sec. 17.21(f) for
endangered wildlife.
(2) Exceptions from prohibitions. In regard to Stephens' kangaroo
rat, you may:
(i) Conduct activities as authorized by a permit under Sec. 17.32.
(ii) Take, as set forth at Sec. 17.21(c)(2) through (4) for
endangered wildlife.
(iii) Take, as set forth at Sec. 17.31(b).
(iv) Possess and engage in other acts with unlawfully taken
wildlife, as set forth at Sec. 17.21(d)(2) for endangered wildlife.
(v) Implement livestock grazing in the course of habitat management
and restoration to benefit Stephens' kangaroo rat or other native
species in the grassland habitat as approved by the Service.
(vi) Conduct the following wildfire suppression activities:
(A) Activities necessary to maintain the minimum clearance
(defensible space) requirement from any occupied dwelling, occupied
structure, or to the property line, whichever is nearer, to provide
reasonable fire safety and to reduce wildfire risks consistent with the
State of California fire codes or local fire codes/ordinances.
(B) Fire management actions (e.g., prescribed burns, hazardous fuel
reduction activities) on protected/preserve lands to maintain, protect,
or enhance habitat occupied by Stephens' kangaroo rat. These activities
are to be coordinated with and reported to the Service in writing and
approved the first time an individual or agency undertakes them.
(C) Maintenance of existing fuel breaks.
(D) Firefighting activities associated with actively burning
wildfires to reduce risk to life or property.
(vii) Remove nonnative, invasive, or noxious plants for the purpose
of Stephens' kangaroo rat conservation as approved by the Service. This
includes noxious weed control and other vegetation reduction in the
course of habitat management and restoration to benefit Stephens'
kangaroo rat, including mechanical and chemical control, provided that
these activities are conducted in a manner consistent with Federal and
applicable State laws, including Environmental Protection Agency label
restrictions for herbicide application.
(viii) Implement activities conducted as part of a plan developed
in coordination with the Service or the California Department of Fish
and Wildlife that are for the purpose of Stephens' kangaroo rat
conservation.
Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-03317 Filed 2-16-22; 8:45 am]
BILLING CODE 4333-15-P
</pre></body>
</html>Indexed from Federal Register on February 17, 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.