Proposed Rule2022-05326
Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for Sand Dune Phacelia and Designation of Critical Habitat
Primary source
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Published
March 22, 2022
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), propose to list the sand dune phacelia (Phacelia argentea), a plant species from coastal southern Oregon and northern California, as a threatened species and designate critical habitat under the Endangered Species Act of 1973, as amended (Act). This determination also serves as our 12- month finding on a petition to list the sand dune phacelia. After a review of the best available scientific and commercial information, we find that listing the species is warranted. Accordingly, we propose to list the sand dune phacelia as a threatened species with a rule issued under section 4(d) of the Act ("4(d) rule"). If we finalize this rule as proposed, it would add this species to the List of Endangered and Threatened Plants and extend the Act's protections to the species. We also propose to designate critical habitat for the sand dune phacelia under the Act. In total, approximately 252 acres (102 hectares) in Coos and Curry Counties in Oregon, and Del Norte County in California, fall within the boundaries of the proposed critical habitat designation. We also announce the availability of a draft economic analysis of the proposed designation of critical habitat for sand dune phacelia.
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[Federal Register Volume 87, Number 55 (Tuesday, March 22, 2022)]
[Proposed Rules]
[Pages 16320-16363]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-05326]
[[Page 16319]]
Vol. 87
Tuesday,
No. 55
March 22, 2022
Part II
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Threatened Species
Status With Section 4(D) Rule for Sand Dune Phacelia and Designation of
Critical Habitat; Proposed Rule
Federal Register / Vol. 87, No. 55 / Tuesday, March 22, 2022 /
Proposed Rules
[[Page 16320]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R1-ES-2021-0070; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BF89
Endangered and Threatened Wildlife and Plants; Threatened Species
Status With Section 4(d) Rule for Sand Dune Phacelia and Designation of
Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list the sand dune phacelia (Phacelia argentea), a plant species from
coastal southern Oregon and northern California, as a threatened
species and designate critical habitat under the Endangered Species Act
of 1973, as amended (Act). This determination also serves as our 12-
month finding on a petition to list the sand dune phacelia. After a
review of the best available scientific and commercial information, we
find that listing the species is warranted. Accordingly, we propose to
list the sand dune phacelia as a threatened species with a rule issued
under section 4(d) of the Act (``4(d) rule''). If we finalize this rule
as proposed, it would add this species to the List of Endangered and
Threatened Plants and extend the Act's protections to the species. We
also propose to designate critical habitat for the sand dune phacelia
under the Act. In total, approximately 252 acres (102 hectares) in Coos
and Curry Counties in Oregon, and Del Norte County in California, fall
within the boundaries of the proposed critical habitat designation. We
also announce the availability of a draft economic analysis of the
proposed designation of critical habitat for sand dune phacelia.
DATES: We will accept comments received or postmarked on or before May
23, 2022. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. Eastern Time on the closing date. We must receive requests for a
public hearing, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by May 6, 2022.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. In the Search box, enter the docket number or RIN
for this rulemaking (presented above in the document headings). For
best results, do not copy and paste either number; instead, type the
docket number or RIN into the Search box using hyphens. Then, click on
the Search button. On the resulting page, in the panel on the left side
of the screen, under the Document Type heading, check the Proposed Rule
box to locate this document. You may submit a comment by clicking on
``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R1-ES-2021-0070, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on <a href="https://www.regulations.gov">https://www.regulations.gov</a>. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: For the critical habitat
designation, the draft economic analysis and the coordinates or plot
points or both from which the maps are generated are included in the
decision file and are available at the Oregon Ecological Services
website (<a href="https://www.fws.gov/oregonfwo/">https://www.fws.gov/oregonfwo/</a>) and at <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No. FWS-R1-ES-2021-0070. Additional
supporting information that we developed for this critical habitat
designation will be available at the Service's website set out above,
at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, or both.
FOR FURTHER INFORMATION CONTACT: Paul Henson, State Supervisor, Oregon
Fish and Wildlife Office, 2600 SE 98th Avenue, Suite 100, Portland, OR
97266; telephone (503) 231-6179. Individuals in the United States who
are deaf, deafblind, hard of hearing, or have a speech disability may
dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay
services. Individuals outside the United States should use the relay
services offered within their country to make international calls to
the point-of-contact in the United States.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, if we determine that
a species warrants listing, we are required to promptly publish a
proposal in the Federal Register, unless doing so is precluded by
higher-priority actions and expeditious progress is being made to add
and remove qualified species to or from the List of Endangered and
Threatened Wildlife and Plants. The Service will make a determination
on our proposal within 1 year. If there is substantial disagreement
regarding the sufficiency and accuracy of the available data relevant
to the proposed listing, we may extend the final determination for not
more than six months. To the maximum extent prudent and determinable,
we must designate critical habitat for any species that we determine to
be an endangered or threatened species under the Act. Listing a species
as an endangered or threatened species and designation of critical
habitat can only be completed by issuing a rule.
What this document does:
<bullet> Proposes to list sand dune phacelia as a threatened
species under the Act.
<bullet> Proposes a rule issued under section 4(d) of the Act
(``4(d) rule'') that would make it unlawful to remove and reduce to
possession the species from areas under Federal jurisdiction;
maliciously damage or destroy the species on areas under Federal
jurisdiction; or remove, cut, dig up, or damage or destroy the species
on any other area in knowing violation of any law or regulation of any
State or in the course of any violation of a State criminal trespass
law; import or export; sell; or involve in interstate or foreign
commerce.
<bullet> Proposes to designate critical habitat for the species on
approximately 252 acres (ac) (102 hectares (ha)) in Coos and Curry
Counties in Oregon, and Del Norte County in California.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined that stressors related to
Factors A and E (invasive species encroachment and competition, climate
change, and small population size) are causing sand dune phacelia to be
threatened.
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary) to designate critical habitat concurrent with listing to
the maximum extent prudent and determinable. Section 3(5)(A) of the Act
defines critical habitat as (i) the specific areas within the
[[Page 16321]]
geographical area occupied by the species, at the time it is listed, on
which are found those physical or biological features (I) essential to
the conservation of the species and (II) which may require special
management considerations or protections; and (ii) specific areas
outside the geographical area occupied by the species at the time it is
listed, upon a determination by the Secretary that such areas are
essential for the conservation of the species. Section 4(b)(2) of the
Act states that the Secretary must make the designation on the basis of
the best scientific data available and after taking into consideration
the economic impact, the impact on national security, and any other
relevant impacts of specifying any particular area as critical habitat.
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other governmental agencies, Native
American Tribes, the scientific community, industry, or any other
interested parties concerning this proposed rule.
We particularly seek comments concerning:
(1) The species' biology, range, and population trends, including:
(a) Biological or ecological requirements of the species, including
habitat requirements;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns;
(d) Historical and current population levels, and current and
projected trends; and
(e) Past and ongoing conservation measures for the species, its
habitat, or both.
(2) Factors that may affect the continued existence of the species,
which may include habitat modification or destruction, overutilization,
disease, predation, the inadequacy of existing regulatory mechanisms,
or other natural or manmade factors.
(3) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species and existing regulations
that may be addressing those threats.
(4) Additional information concerning the historical and current
status, range, distribution, and population size of this species,
including the locations of any additional populations of this species.
(5) Information on regulations that are necessary and advisable to
provide for the conservation of the sand dune phacelia and that the
Service can consider in developing a 4(d) rule for the species. In
particular, information concerning the extent to which we should
include any of the Act's section 9 prohibitions in the 4(d) rule or
whether we should consider any additional exceptions from the
prohibitions in the 4(d) rule.
(6) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including information to inform the following factors that the
regulations identify as reasons why designation of critical habitat may
be not prudent:
(a) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(b) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(c) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States; or
(d) No areas meet the definition of critical habitat.
(7) Specific information on:
(a) The amount and distribution of sand dune phacelia habitat;
(b) What areas, that were occupied at the time of listing and that
contain the physical or biological features essential to the
conservation of the species, should be included in the designation and
why;
(c) Any additional areas occurring within the range of the species
(in Coos or Curry County in Oregon, or Del Norte County in California)
that should be included in the designation because they (1) are
occupied at the time of listing and contain the physical or biological
features that are essential to the conservation of the species and that
may require special management considerations, or (2) are unoccupied at
the time of listing and are essential for the conservation of the
species;
(d) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change; and
(e) What areas not occupied at the time of listing are essential
for the conservation of the species. We particularly seek comments:
(i) Regarding whether occupied areas are adequate for the
conservation of the species;
(ii) Providing specific information regarding whether or not
unoccupied areas would, with reasonable certainty, contribute to the
conservation of the species and contain at least one physical or
biological feature essential to the conservation of the species; and
(iii) Explaining whether or not unoccupied areas fall within the
definition of ``habitat'' at 50 CFR 424.02 and why.
(8) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(9) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation, and the related benefits of including or excluding
specific areas.
(10) Information on the extent to which the description of probable
economic impacts in the draft economic analysis is a reasonable
estimate of the likely economic impacts and any additional information
regarding probable economic impacts that we should consider.
(11) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act.
(12) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) of the Act directs that
determinations as to whether any species is an endangered or a
threatened species must be made ``solely on the basis of the best
scientific and commercial data available.''
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send
[[Page 16322]]
comments only by the methods described in ADDRESSES.
If you submit information via <a href="https://www.regulations.gov">https://www.regulations.gov</a>, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Because we will consider all comments and information we receive
during the comment period, our final determinations may differ from
this proposal. Based on the new information we receive (and any
comments on that new information), we may conclude that the species is
endangered instead of threatened, or we may conclude that the species
does not warrant listing as either an endangered species or a
threatened species. For critical habitat, our final designation may not
include all areas proposed, may include some additional areas that meet
the definition of critical habitat, and may exclude some areas if we
find the benefits of exclusion outweigh the benefits of inclusion. In
addition, we may change the parameters of the prohibitions or the
exceptions to those prohibitions in the 4(d) rule if we conclude it is
appropriate in light of comments and new information received. For
example, we may expand the prohibitions to include prohibiting
additional activities if we conclude that those additional activities
are not compatible with conservation of the species. Conversely, we may
establish additional exceptions to the prohibitions in the final rule
if we conclude that the activities would facilitate or are compatible
with the conservation and recovery of the species.
Public Hearing
Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and local newspapers at least 15 days before the
hearing. For the immediate future, we will provide these public
hearings using webinars that will be announced on the Service's
website, in addition to the Federal Register. The use of these virtual
public hearings is consistent with our regulations at 50 CFR
424.16(c)(3).
Previous Federal Actions
On March 7, 2014, the Service received a petition requesting that
sand dune phacelia be listed as an endangered or threatened species
and, if applicable, critical habitat be designated for this species
under the Act (Center for Biological Diversity et al. 2014, entire).
Our subsequent 90-day finding (80 FR 37568, July 1, 2015) concluded
that the petition provided substantial information, and that the status
of sand dune phacelia warranted further review.
Supporting Documents
A species status assessment (SSA) team prepared an SSA report for
the sand dune phacelia. The SSA team was composed of Service
biologists, in consultation with other species experts. The SSA report
represents a compilation of the best scientific and commercial data
available concerning the status of the species, including the impacts
of past, present, and future factors (both negative and beneficial)
affecting the species. In accordance with our joint policy on peer
review published in the Federal Register on July 1, 1994 (59 FR 34270),
and our August 22, 2016, memorandum updating and clarifying the role of
peer review of listing actions under the Act, we sought the expert
opinions of three appropriate specialists regarding the SSA. We
received three responses. We also sent the SSA report to seven
partners, including scientists with expertise in botany and coastal
native dune plant conservation, for review. We received review from
three partners: Oregon Department of Agriculture's Native Plant
Conservation Program, the California Department of Parks and
Recreation, and the Tolowa Dunes Stewards.
I. Proposed Listing Determination
Background
Sand dune phacelia (Phacelia argentea), also known as silvery
phacelia, is an evergreen, herbaceous, flowering perennial in the
forget-me-not family (Boraginaceae), and its status as a taxonomically
valid species is well-accepted (Nelson and MacBride 1916, p. 34). It is
found only on coastal dune habitat in southern Oregon (Coos and Curry
Counties) and far northern California (Del Norte County) coasts. A
rangewide survey conducted in 2017 documented 26 occupied sites
(including 1 entirely introduced population), with 16 sites in Oregon
and the remaining 10 in California (Brown 2020a database). Sand dune
phacelia occurs on the open sand above the high tide line, further
inland on semi-stabilized and open dunes, and on coastal bluffs (Kalt
2008, p. 2). It has been described as occurring at elevations ranging
from 10 to 40 feet (3 to 12 meters) and on slopes less than 30 percent
composed of sand or (rarely) gravel (Rodenkirk 2019, p. 7).
Sand dune phacelia exhibits multiple adaptations for living in
drought-like, nutrient-poor areas with high winds, blowing sand, and
salt spray. It forms mats that reduce its exposure to wind and spray
and has silvery hairs on its leaves, which allow it to resist
desiccation in its harsh environment of blowing sand. Its tap root may
be extensive, facilitating life in an environment of shifting sands and
maximizing the plant's ability to uptake water (Rodenkirk 2019, p. 12).
Sand dune phacelia occurs in sandy habitats that are sufficiently
free of competing vegetation to provide space and a high light
environment to allow for seedling establishment and growth (Kalt 2008,
p. 4; Meinke 2016, p. 2). Reproductively mature plants begin to bloom
in late April and May, with flowers persisting through August (Meinke
1982, p. 282). Sand dune phacelia appears to be largely incapable of
significant self-pollination (Meinke 2016, p. 3), relying upon
pollination by bees (Rittenhouse 1995, p. 8).
A thorough review of the taxonomy, life history, and ecology of the
sand dune phacelia (Phacelia argentea) is presented in the SSA report
(Service 2021, pp. 7-20).
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:
[[Page 16323]]
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the expected response by the species,
and the effects of the threats--in light of those actions and
conditions that will ameliorate the threats--on an individual,
population, and species level. We evaluate each threat and its expected
effects on the species, then analyze the cumulative effect of all of
the threats on the species as a whole. We also consider the cumulative
effect of the threats in light of those actions and conditions that
will have positive effects on the species, such as any existing
regulatory mechanisms or conservation efforts. The Secretary determines
whether the species meets the definition of an ``endangered species''
or a ``threatened species'' only after conducting this cumulative
analysis and describing the expected effect on the species now and in
the foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as the
Service can reasonably determine that both the future threats and the
species' responses to those threats are likely. In other words, the
foreseeable future is the period of time in which we can make reliable
predictions. ``Reliable'' does not mean ``certain''; it means
sufficient to provide a reasonable degree of confidence in the
prediction. Thus, a prediction is reliable if it is reasonable to
depend on it when making decisions.
It is not always possible or necessary to define foreseeable future
as a particular number of years. Analysis of the foreseeable future
uses the best scientific and commercial data available and should
consider the timeframes applicable to the relevant threats and to the
species' likely responses to those threats in view of its life-history
characteristics. Data that are typically relevant to assessing the
species' biological response include species-specific factors such as
lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent a decision by
the Service on whether the species should be proposed for listing as an
endangered or threatened species under the Act. However, it does
provide the scientific basis that informs our regulatory decisions,
which involve the further application of standards within the Act and
its implementing regulations and policies. The following is a summary
of the key results and conclusions from the SSA report; the full SSA
report can be found at Docket FWS-R1-ES-2021-0070 on <a href="https://www.regulations.gov">https://www.regulations.gov</a> and at <a href="https://www.fws.gov/oregonfwo">https://www.fws.gov/oregonfwo</a>.
To assess sand dune phacelia viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency supports the ability of the species to withstand
environmental and demographic stochasticity (for example, wet or dry,
warm or cold years), redundancy supports the ability of the species to
withstand catastrophic events (for example, droughts, large pollution
events), and representation supports the ability of the species to
adapt over time to long-term changes in the environment (for example,
climate changes). In general, the more resilient and redundant a
species is and the more representation it has, the more likely it is to
sustain populations over time, even under changing environmental
conditions. Using these principles, we identified the species'
ecological requirements for survival and reproduction at the
individual, population, and species levels, and described the
beneficial and risk factors influencing the species' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time. We use this information to inform our regulatory
decision.
Summary of Biological Status and Threats
In this discussion, we review the biological condition of the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability.
Individual Needs
Sand dune phacelia occurs in sandy habitats that are sufficiently
free of competing vegetation to allow for seedling establishment and
growth (Kalt 2008, p. 4; Meinke 2016, p. 2). Drought has been
implicated in low seedling recruitment and adult mortality (Rodenkirk
2019, p. 17), but precise moisture requirements are unknown.
Nutritional needs are evidently low, as sand is nutrient poor. Whether
sand dune phacelia is mycorrhizal (like many other dune species) is
unknown. A high light environment is important for sand dune phacelia
to complete its life cycle and reproduce. There is evidence that high
light exposure is needed for seed germination (Meinke 2016, p. 5) as
well as for seedling establishment and growth (Rodenkirk 2019, p. 19;
Jacobs 2019, p. 92).
[[Page 16324]]
Population Needs
To be adequately resilient, populations of sand dune phacelia need
sufficient numbers of reproductive individuals to withstand stochastic
events. Sufficient annual seed production and seedling establishment is
necessary to offset mortality of mature sand dune phacelia plants
within a population. Because large individuals produce the most seed
(Meinke 2016, p. 3), their loss is likely to have the greatest impact
on the overall population. However, no quantitative analyses have been
completed to determine minimum viable population size for sand dune
phacelia.
Sandy habitat that is relatively free of vegetative competition is
important for population persistence (Rodenkirk 2019, p. 16;
Rittenhouse 1995, p. 8). Historically, sand dunes shifted as dictated
by prevailing winds, tides, and storm surge, and these forces
maintained and supported native dune plant communities adapted to
highly dynamic environments. In the absence of sand-disturbing forces,
dune habitats are susceptible to rapid colonization by nonnative
species such as European beachgrass (Ammophila arenaria) and gorse
(Ulex europaea), as well as encroachment by native successional species
like shore pine (Pinus contorta ssp. contorta) (Meinke 2016, p. 2).
Sand dune phacelia is largely dependent upon pollination by bees.
In coastal dune habitats, bee abundance and species richness are
positively correlated with the presence of sand dune phacelia (Julian
2012, p. 3), and negatively correlated with cover of European
beachgrass and other invasive vegetation (Julian 2012, p. 21).
Species Needs
To maintain viability, sand dune phacelia should have a sufficient
number of sustainable populations that are well-distributed throughout
its geographic range and throughout the variety of ecological settings
in which the species is known to exist. Suitable habitat must be
available, and the number and distribution of adequately resilient
populations must be sufficient for the species to withstand
catastrophic events. No quantitative analysis exists upon which to
determine the minimum number of populations or the quantity of suitable
habitat necessary for sand dune phacelia to maintain viability as a
species.
The historical extent and distribution of sand dune phacelia across
the southern Oregon and far northern California coasts is not precisely
known. The species may have been more abundant, widespread, and
contiguously distributed on the landscape prior to the loss and
stabilization of sand dune habitats, off-highway vehicle use, and the
introduction of invasive species (particularly European beachgrass)
(Meinke 2016, p. 2). Due to its specialized adaptations to the sand
dune environment, it is unlikely that sand dune phacelia ever occurred
in a diverse range of ecological environments, and no information
exists on the genetics of sand dune phacelia that would allow an
assessment of whether populations demonstrate sufficient genetic
variability to persist under changing environmental conditions.
In summary, individual sand dune phacelia plants require sandy
substrate with limited vegetative competition for light, moisture, and
growing space. Populations must be sufficiently large and sustainable
to withstand stochastic events, have sufficient annual seed production,
and an adequate pollinator community. For species viability, sand dune
phacelia must have sufficiently resilient populations that are well
distributed across its range and sufficient genetic diversity to adapt
to changing conditions (table 1).
Table 1--Individual, Population, and Species Needs of Sand Dune Phacelia
----------------------------------------------------------------------------------------------------------------
Individuals Populations Species
----------------------------------------------------------------------------------------------------------------
Bare sandy substrate............... Sufficiently large number of reproductive Sufficient number of
individuals per population to withstand adequately resilient
stochastic events. populations well
distributed across the
range
High light environment............. Sufficient annual seed production to offset Sufficient genetic
mortality. diversity to adapt to
change over time (no
information on genetics)
Water.............................. Dune/sandy habitat with low degree of invasive
species.
Pollinators........................ Sufficient abundance and diversity of
pollinators for outcrossing/optimal seed
production.
----------------------------------------------------------------------------------------------------------------
Threats
We considered a comprehensive set of sand dune phacelia stressors
that have been cited in the literature (Rodenkirk 2019, entire), in the
data provided from our partners (Brown 2020a database), and in the
petition (Center for Biological Diversity et al. 2014, entire). For
each stressor we assessed whether there was sufficient evidence that
the influence of the stressor rose to the scope and magnitude necessary
to impact sand dune phacelia populations, and thus be carried forward
in our analysis of current and future condition. We also examined
positive influence factors (conservation efforts) in a similar manner.
Invasive Plants
Invasive, introduced plant species are considered one of the most
influential stressors to sand dune phacelia and its habitat (Kalt 2008,
p. 7; Rodenkirk 2019, p. 6). European beachgrass, gorse, and other
invasive plant species outcompete sand dune phacelia throughout its
range (Rodenkirk 2019, p. 6). Introduced to the Pacific Northwest
region of the United States and California in the 1800s, European
beachgrass is an aggressive, perennial, rhizomatous grass. It was
extensively planted to stabilize sand and build dunes parallel to the
ocean shore to protect infrastructure from the effects of ocean storms
and tides (Hacker et al. 2011, p. 2; Oregon Department of Fish and
Wildlife (ODFW) 2016, pp. 67). Colonizing European beachgrass captures
sand with its deep roots and spreading shoots, forming dense
monocultures of grass that outcompete many native dune species,
including sand dune phacelia, for growing space, sunlight, and moisture
(Rittenhouse 1996, p. 3). The steep, heavily vegetated foredunes seen
today along much of the Oregon, and to a lesser extent California,
coastlines are the result of European beachgrass colonization
(Rittenhouse 1995, p. 9; Zarnetske et al. 2010, pp. 12). Dune
stabilization by European beachgrass also facilitates the establishment
and succession of native trees and shrubs that proliferate in the
absence of natural disturbance regimes,
[[Page 16325]]
thereby resulting in the conversion, and ultimate loss, of native dune
habitat (Rittenhouse 1996, p. 3; Brown 2020a database).
According to population surveys conducted in California, European
beachgrass poses the most consequential threat to sand dune phacelia
populations in that State (Jacobs 2019, p. 9; Imper 1987, p. 1; Kalt
2008, p. 7). In Oregon, the expansion of European beachgrass was a
likely factor in the extirpation of two sand dune phacelia populations
near Bandon (Christy 2007, p. 15), and adverse effects to sand dune
phacelia populations from European beachgrass have been documented at
multiple locations throughout its range (Rittenhouse 1995, p. 9; Kagan
and Titus 1998a, p. 10; Kagan and Titus 1998b, p. 3; Titus 1998, p. 12;
Rodenkirk 2019, entire; Brown 2020a database).
We are also aware that under certain ocean shore alteration permits
in Oregon, landowners are required to stabilize the dune against
erosion in order to protect properties and shoreline. European
beachgrass is often used because it is readily available and effective
for that purpose (Bacheller 2021, pers. comm.). This permitting
requirement may promote the spread of European beachgrass, although to
our knowledge this is not currently occurring within the range of sand
dune phacelia.
Gorse is an introduced spiny shrub that forms impenetrable thickets
that overtake dune habitats. It is widely recognized as a threat to
native plant species and dune habitats (Christy 2007, entire; ODFW
2016, p. 7). Widespread in the Bandon, Oregon, area, it poses a threat
to sand dune phacelia populations in the northern region of its range
(Kagan and Christy 1998, p. 14; Christy 2007, p. 17; Kalt 2008 p. 8;
Rodenkirk 2019, p. 6; Brown 2020a database). Gorse is also highly
flammable and produces copious amounts of seed that can persist in the
environment for 30 years or more (Goodwin 2018, p. 119).
There is broad consensus in the scientific literature and available
data that invasive species presently pose a population-level threat to
sand dune phacelia rangewide and will continue to do so into the
future, so we included this threat in our analysis of current and
future condition.
Recreational Impacts
Legal and illegal off-highway vehicle (OHV) use can damage or kill
sand dune phacelia. While widely perceived as a potential threat (Kalt
2008, p. 9; Brown 2020a database; Rodenkirk 2019, p. 6), documented
impacts from OHVs are limited to individuals at a small number of sites
throughout its range, most notably in California (Imper, 1987, p. 1;
Gedik 2009, p. 7; Tolowa Dune Stewards 2013, p. 18; Jacobs 2019, pp.
15, 102). Impacts of OHV use to sand dune phacelia in Oregon are
thought to be minimal and localized (Rittenhouse 1995, p. 9), with most
OHV use occurring in areas unoccupied by sand dune phacelia (Kalt 2008,
p. 9).
Trampling by pedestrians and equestrians is noted in the literature
as a concern throughout the range of sand dune phacelia. Trampling can
both decrease the size of sand dune phacelia mats and destroy
individuals (Rodenkirk 2019, p. 6). However, light levels of
disturbance can also partially destabilize dunes and reduce invasive
species proliferation, thus benefitting sand dune phacelia habitat
(Kalt 2008, p. 10). Additional study is needed to investigate the
effects of human traffic on sand dune phacelia populations (Jacobs
2019, pp. 113-114).
In general, while noted as a stressor and documented as destructive
to individuals at some sites, lack of available data on population-
level effects of recreational use on sand dune phacelia precluded us
from carrying forward the influence of recreation in our analysis of
current and future condition. However, we do acknowledge that
recreational impacts, primarily from OHV use, are damaging sand dune
phacelia habitat at some sites, and may be especially deleterious to
small populations.
Coastal Development
Coastal development may directly damage sand dune phacelia plants
or result in habitat loss due to conversion of sand dunes to other uses
(Kalt 2008, p. 9). Coastal development may be more consequential in
Oregon, where State-listed plants receive no protection on private
lands. In California, the California Environmental Quality Act, the
Native Plant Protection Act, and the California Coastal Act regulate
development to minimize impacts to coastal dunes and other
Environmentally Sensitive Habitat Areas.
Most extant populations of sand dune phacelia occur on public lands
where protections are in place that safeguard against direct mortality
or habitat loss, and we found insufficient data to support the claim
that development is currently impacting the remaining extant
populations on private land. For example, the two primary private land
parcels that currently support sand dune phacelia are the Pacific
Shores Subdivision in California and the sites at the Bandon Dunes Golf
Resort in Oregon. Seventy-five percent of the undeveloped, privately
owned lots at Pacific Shores have been acquired by the California
Department of Fish and Wildlife for inclusion into a conservation area,
and efforts are underway to purchase the remaining undeveloped private
holdings (Jerabek 2020, pers. comm.). At the Bandon Dunes Golf Resort,
a stated goal of the conservation-minded owner is to protect and
enhance the sand dune phacelia population there, which after heavy
infestations of gorse were cleared (Gunther 2012, no pagination) now
represents the largest population rangewide (Brown 2020a database).
It is possible that coastal development had impacts on sand dune
phacelia historically, leading to its present-day condition of small
and fragmented populations. However, based on our assessment of current
land ownership and population condition, the best available data does
not indicate that development is presently a population-level threat to
sand dune phacelia. This stressor may have had historical impacts but
no longer appears influential, and, based on land ownership of extant
population sites, it seems unlikely to become influential in the
future.
Livestock Grazing
Livestock grazing occurs throughout the range of sand dune phacelia
on some private lands; however, it usually occurs on well-stabilized
(vegetated) dunes and coastal meadows, which are not suitable sand dune
phacelia habitat. Furthermore, in some cases grazing may actually
benefit sand dune phacelia by reducing competition from invasive
species (Rodenkirk 2019, p. 22). Negative effects of livestock grazing
on sand dune phacelia populations have not been documented, and grazing
was not listed as a threat to any of the populations in the most recent
rangewide survey (Brown 2020a database). Given current land ownership,
we do not expect grazing to impact populations in the future.
Therefore, we did not include livestock grazing in our threat analysis.
Overutilization
Because of sand dune phacelia's attractive foliage, illegal removal
of it for horticultural purposes has been cited as a threat (Rodenkirk
2019, p. 6; Oregon Department of Agriculture (ODA) 2020, no
pagination). We could find no information with which to validate this
claim or assess its impacts on sand dune phacelia populations. As such,
we do not consider overutilization to be a threat influencing
populations of sand
[[Page 16326]]
dune phacelia currently or into the future.
Sea Level Rise
The best available data does not indicate that sea level rise is
currently influencing sand dune phacelia, and it is unknown how changes
in sea levels may have affected the species in the past. However,
because sea level rise is expected to increase in the future with
climate change, and near-shore species could be affected by sea level
rise and associated erosion and storm surge (IPCC 2014, p. 67), we
consider the impact of projected sea level rise on sand dune phacelia
in our analysis of future conditions.
Small Population Size
We acknowledge that, prior to habitat fragmentation, many of the
populations, especially those south of the town of Bandon, Oregon, and
near Crescent City, California, were most likely functionally
continuous (Brown 2020b, pers. comm.). Our assessment of population
abundance and habitat quality from recent surveys indicates that the
number of populations of sand dune phacelia is reduced compared to
documented historical occurrences. Many of the remaining populations
are very small in size, and most populations are isolated from one
another by large tracts of unsuitable habitat, making genetic exchange
and dispersal among most populations unlikely without human
intervention. No information exists on the minimum number of
individuals required to support a sand dune phacelia population.
However, a population size of about 25 individuals appears to be
biologically relevant given the best available data. Specifically, the
current abundance of nearly every extant population falls either below
25 (1 to 24 individuals) or well above 25 (100 or more individuals),
with all populations with fewer than 25 individuals also undergoing
population decline (Brown 2020a database). Therefore, in the absence of
any existing minimum viable population analysis to draw upon, we assume
that at least 25 individuals are necessary for sand dune phacelia
population viability. As such, low abundance was a factor in our
analysis of current condition, and we considered small populations that
currently support fewer than 25 individuals as unlikely to persist in
our future condition analysis.
Pollinator Decline
Because sand dune phacelia is largely reliant upon pollination to
successfully reproduce, pollinator decline is cited as a potential
threat to sand dune phacelia (ODA 2020; no pagination). Furthermore,
bee abundance and diversity were found to be positively correlated with
the presence of sand dune phacelia in one study in California (Julian
2012, p. iii). While we recognize the important role pollinators play
in the needs of sand dune phacelia, we found no data with which to
assess the status of pollinator communities at extant sand dune
phacelia sites, nor to indicate that pollinator decline was affecting
sand phacelia populations. Therefore, we acknowledge the importance of
a healthy and diverse pollinator community but were unable to include
this factor in our analysis of current and future conditions.
Summary of Threats
The primary threat currently acting upon sand dune phacelia
populations is that of invasive species, which is expected to continue
impacting the species into the future and was therefore included in our
analysis of current and future condition. In addition, our current and
future condition analysis included the consideration of sea level rise
and small population size. Other stressors mentioned above may act on
sand dune phacelia individuals, or have highly localized impacts, but
do not rise to the level of impacting populations. However, we
acknowledge that all stressors may exacerbate the effects of other
ongoing threats.
Regulatory Conservation Efforts
Sand dune phacelia is listed as threatened by the Oregon Department
of Agriculture (ODA) and has a State listing status of 1, indicating
that it is threatened or endangered throughout its range (Oregon
Biodiversity Information Center 2019, p. 33). Native plant species that
are listed as threatened or endangered in Oregon are protected on all
non-federal public lands (Oregon Revised Statutes (ORS) 564.105). Any
land action on Oregon public lands that results, or might result, in
the collection or disturbance of a threatened or endangered species
requires either a permit or a consultation with ODA staff. The State
consultation process for public land managers requires a written
evaluation of projects that impact listed plant species, and the ODA
may recommend alternatives to avoid or minimize impacts to those
species; a formal consultation or permit may be required. Prohibitions
for listed plant species in the State of Oregon are provided by ORS
603-073-0003, which states ``Willful or negligent cutting, digging,
trimming, picking, removing, mutilating, or in any manner injuring, or
subsequently selling, transporting, or offering for sale any plant,
flower, shrub, bush, fruit, or other vegetation growing on the right of
way of any public highway within this state, within 500 feet of the
center of any public highway, upon any public lands, or upon any
privately owned lands is prohibited without the written permission of
the owner or authorized agent of the owner.'' Additionally, ORS
564.105(3) calls for the State to establish programs for the protection
and conservation of plant species, and the State participates in
conservation management actions as staffing and funding allows. In
practice, however, resource limitations often prevent implementation of
the full suite of affirmative management actions required to achieve
the recovery of State listed plants. As an example, the eradication or
control of widespread invasive species such as gorse, one of the
primary threats to sand dune phacelia, would pose enormous resource
requirements that far exceed the State's capacity.
Oregon State Parks contain nearly 50 percent of all sand dune
phacelia populations rangewide. Under the master-plan level designation
for Oregon State parks, sites that contain listed species are
automatically placed in a category of administrative conservation
designation, which provides sand dune phacelia populations with
protection from development. While no formal conservation plans to
benefit sand dune phacelia are in place, invasive control actions at
several parks improve sand dune habitat and may assist with restoring
or maintaining suitable conditions for sand dune phacelia in the future
(Bacheller 2020, pers. comm.). Oregon State Parks are not supported by
tax dollars, as are other State agencies, but are supported by a
combination of State Park user fees, recreational vehicle license fees,
and a portion of State lottery revenues. As a result, Oregon State Park
budgets can be subject to significant fluctuations in revenue and are
often limited, which can affect their capacity to implement management
actions for conservation, such as habitat restoration for rare plants
on State Park lands.
In California, sand dune phacelia is designated as a California
Rare Plant with a rank of 1B.1, meaning that it is rare, threatened, or
endangered in California and elsewhere, and is seriously endangered in
California. Impacts to species of this rank or their habitat must be
analyzed during preparation of environmental documents relating to the
California Environmental Quality Act (CEQA).
[[Page 16327]]
Under CEQA, state public agencies (including State Parks) must provide
measures to reduce or avoid adverse environmental impacts of proposed
projects, including impacts to designated rare plants such as sand dune
phacelia. Designation as a California Rare Plant generally reduces
negative impacts to sand dune phacelia caused by development or other
land use programs and actions but does not ameliorate the primary
threat to the species, which is that of invasive species encroachment.
All of the plants constituting California Rare Plant Rank 1B meet the
definitions of the California Endangered Species Act of the California
Fish and Game Code, and are eligible for State listing, however, sand
dune phacelia is not listed under the California Endangered Species
Act.
The Federal Lands Policy and Management Act of 1976, as amended
(FLPMA; 43 U.S.C. 1701 et seq.) governs the management of public lands
administered by the Bureau of Land Management (BLM). Under FLPMA, the
BLM administers a special status species policy that calls for the
conservation of BLM special status species and the ecosystems upon
which they depend on BLM-administered lands. BLM special status species
are any species listed or proposed for listing under the Endangered
Species Act, or species designated as ``Bureau sensitive'' by the State
Director(s). Sand dune phacelia is designated as a Bureau sensitive
special status plant species and is thus the recipient of proactive
conservation efforts on BLM lands as staffing and resources allow. On
Federal lands in Oregon, the BLM regularly restores sand dune phacelia
habitat through the removal or control of invasive species at Lost
Lake, Floras Lake, and Storm Ranch (Rodenkirk 2019; entire). BLM is
updating its management plan for the New River Area of Critical
Environmental Concern, where the majority of sand dune phacelia
populations on BLM land occurs (Wright, pers. comm. 2020). The new plan
will include an emphasis on restoring native dune plant communities,
including those with sand dune phacelia.
Voluntary Conservation Efforts
Rangewide, the largest sand dune phacelia population is located on
private land at the Bandon Dunes Golf Resort, and while no formal
conservation agreements or commitments exist, the private land owner
has been actively maintaining sand dune phacelia habitat through
ongoing removal of European beachgrass and gorse (Gunther 2012, no
pagination). In California, the South Lake Tolowa Restoration effort
has removed European beachgrass from approximately 25 ac (10 ha) at
Tolowa Dunes State Park and the Lake Earl Wildlife Area (Jacobs 2019,
pp. 24-25). Conducted by California State Parks and a volunteer group
called the Tolowa Dunes Stewards (Jacobs 2019, p. 10), restoration
efforts initiated in 2010 increased the sand dune phacelia population
from approximately 2,300 plants to 5,936 plants in 2017 (Brown 2020a
database). The South Lake Tolowa population is now the largest in
California, and the second largest rangewide. Volunteers from the
Tolowa Dunes Stewards have also restored 30 ac of habitat (12 hectares)
at the nearby East Dead Lake population via the removal of European
beachgrass (Jerabek 2020, pers. comm.). However, in the absence of
committed funding or agreements associated with these restoration
efforts, they are almost entirely reliant on grant funding and
volunteer efforts (Jerabek 2020, pers. comm.). The significant gains
made for sand dune phacelia at these sites could quickly be lost
without continuous maintenance efforts, given the aggressive nature of
European beachgrass and other invasive species.
Rangewide, actions to control invasive species have demonstrated
success in maintaining or increasing populations of sand dune phacelia
(Gunther 2012, no pagination; Meinke 2016, p. 25; Jacobs 2019, p. 10;
Rodenkirk 2019; entire). Sand dune phacelia is a management-dependent
species, as restoration of dune habitat through ongoing control of
invasive species is essential to the continuing viability of sand dune
phacelia rangewide. Therefore, we considered the contribution of
habitat management actions, and in particular control of invasive
species, in our analysis of future conditions.
We also considered whether or not our Policy for the Evaluation of
Conservation Efforts (68 FR 15100, March 28, 2003) applies to sand dune
phacelia habitat management efforts, but we determined that it does not
apply because no formalized agreements exist to ensure the future
mitigation of the threat posed by invasive species.
In addition to habitat restoration activities, augmentation of sand
dune phacelia populations using transplants has been carried out at
several sites by BLM in partnership with Oregon State University
(Meinke 2016, entire) and the Oregon Department of Agriculture (Brown
2017, entire). While transplant efforts appear to be beneficial
initially, transplant mortality over time tends to be high as
outplanted individuals succumb to environmental conditions (Meinke
2016, p. 18). Refinements to sand dune phacelia cultivation protocols
are necessary to improve transplanting success (Meinke 2016, entire;
Brown 2017, p. 5).
Attempts are also underway by BLM to enhance or establish
populations by directly seeding sand dune phacelia into suitable
habitat (Wright 2020, pers. comm.). The recently introduced population
at Storm Ranch is the largest population that occurs on Federal lands
(Rodenkirk 2019, p. 28). Attempts to establish the Storm Ranch
population began in 2012 with a seeding of 2 ac (0.8 ha) (Rodenkirk
2019, p. 28). Initial seedings were unsuccessful, but eventually a
population was established, with 1,596 plants counted in 2018. The
population drastically declined in 2019, with only 620 plants observed
(Rodenkirk 2019, p. 29). Long-term monitoring will assess whether this
seeded population can maintain viability.
Because of the high levels of plant mortality observed following
transplantation efforts, and the significant uncertainty as to whether
augmented or introduced populations may be capable of contributing to
the maintenance or enhancement of sand dune phacelia populations over
time, we did not include the seeded population at Storm Ranch, or
outplanted individuals at other sites, in our analysis of current and
future conditions.
We determined that habitat restoration in the form of invasive
species removal is the primary conservation effort influencing sand
dune phacelia at the population level, and therefore carried it through
our analysis of future condition. Augmentation and reintroduction are
likely having a positive influence on sand dune phacelia, but we lack
evidence that these conservation efforts are having population-level
effects at this time.
Current Condition
Methodology
We delineated three representation units (Oregon-North, Oregon-
South, and California) based on geographic breaks in the distribution
of the species, because they could not otherwise be characterized by
marked differences in genetic makeup, phenotypic variation, habitats,
or ecological niches. No population viability assessment models exist
to inform the categorization of population condition for sand dune
phacelia. Therefore, we used the best
[[Page 16328]]
available science to score the overall current condition of each
population qualitatively as high, moderate, or low, based upon our
assessment of habitat condition, population abundance, and population
trend over time. The average score was then used to rate the overall
current condition of each population.
Sand dune phacelia populations were surveyed rangewide in Oregon
and California in 2017 by the Oregon Department of Agriculture's Plant
Conservation Program (Brown 2020a database). The 2017 survey enumerated
current population size, examined historical data to discern population
trends, delineated the area occupied, briefly described the habitat,
and identified stressors at each site. This effort provides the most
current data available on nearly every extant population of sand dune
phacelia.
We excluded sites consisting of Phacelia species with intermediate
morphology (those that appear hybridized). These plants were determined
to most likely be crosses between sand dune phacelia and P. nemoralis
ssp. oregonensis (Brown 2020a database; Meinke 1982, p. 260). In
addition to different morphological attributes, the intermediate plants
occur in rockier habitats as compared to areas occupied by sand dune
phacelia, and rockier habitat is more indicative of P. nemoralis. While
we suspect that these plants are most likely hybrids and not
representatives of sand dune phacelia, no genetic information is
available upon which to base this conclusion. Whether the presumed
intergrades affect sand dune phacelia population viability is unknown.
More information on intermediate populations, as well as on all
populations, is included in the SSA (Service 2021, entire).
Abundance categories were defined as ``Low'' (100 or fewer plants),
``Moderate'' (101,500 plants), and ``High'' (over 500 plants). These
rating categories were derived to reflect relative abundance between
populations only, or an index of population size, because there is no
information available on the minimum number of individuals necessary to
maintain a viable population.
Habitat condition was scored based on the most recently available
observations at sand dune phacelia population sites. Because sand dune
phacelia habitat quality is highly influenced by invasive species, the
scores reflect the relative encroachment of invasive species at a given
site as reported by the 2017 rangewide survey (Brown 2020a database)
and by BLM. Quantitative data on invasive species in sand dune phacelia
populations, such as percent cover of invasive species, are not
available.
Population trend data were derived from the 2017 rangewide survey
(Brown 2020a database) and reflect documented abundance data across
historical records. Trend data are necessarily coarse, as many
populations were rarely or sporadically monitored prior to 2017.
Increasing trends were rated as ``High,'' stable trends as
``Moderate,'' and decreasing trends as ``Low.''
The overall condition scores for all known extant populations of
sand dune phacelia are presented in table 2.
Current Resiliency, Redundancy, and Representation
Resiliency refers to the ability of populations to withstand
stochastic events, and we assessed the resiliency of each population
using the current habitat condition, population abundance, and
population trend. Of the 25 naturally occurring (we did not include the
1 entirely introduced population) extant sand dune phacelia populations
we assessed, 4 are currently in high condition, 4 are in moderate
condition, and 17 are in low condition (table 2). Therefore, resiliency
is low for most populations rangewide, with 68 percent of all
populations rated with low overall condition (figure 1).
[[Page 16329]]
[GRAPHIC] [TIFF OMITTED] TP22MR22.000
Redundancy is a species' ability to withstand catastrophic events
and is determined by the number of its populations and their
distribution across the landscape. Currently, approximately 33,858
naturally occurring sand dune phacelia plants exist in 25 populations
along roughly 100 miles (161 kilometers (km)) of coastline. Our
analysis of current redundancy concludes that, although most extant
populations exhibit low resiliency, it is unlikely that a single
catastrophic event could eliminate all extant populations, which are
well distributed throughout all representation units, with the most
robust populations located at either end of the range (figure 1).
[[Page 16330]]
[GRAPHIC] [TIFF OMITTED] TP22MR22.001
Representation refers to the ability of a species to adapt to
change and is based upon considerations of phenotypic, genetic, and
ecological diversity, as well as the species' ability to colonize new
areas. There is little evidence of phenotypic variation among
individuals of sand dune phacelia, and no data are available on
potential genetic diversity. As a narrow endemic, sand dune phacelia is
highly specialized and restricted in its ecological niche, with all
occupied sites sharing similar features, and differences being largely
related to the population's distance from the ocean and position in
relation to the dune (e.g., foredune, backdune). As such, sand dune
phacelia demonstrates little ecological diversity. However, the ability
of a species to adapt is gauged not only by diversity among
[[Page 16331]]
individuals, but also by its ability to colonize new areas. Currently,
populations of sand dune phacelia are patchy and dispersed, often
isolated by large tracts of intervening habitat made unsuitable by
human development or invasive species. The lack of available and
unoccupied suitable habitat leaves less opportunity for a species to
exploit new resources outside of the area it currently occupies and to
adapt to changing conditions. Further, the lack of connectivity between
populations may result in reduced gene flow and genetic diversity,
rendering the species less able to adapt to novel conditions.
The low level of phenotypic and ecological diversity demonstrated
within this species, as well as restricted opportunity for colonization
into new areas, indicates some limitations in representation for sand
dune phacelia. However, sand dune phacelia continues to be represented
by multiple populations distributed throughout the known historical
range of the species, although the resiliency of most of these
populations is low.
Future Condition
The intent of this analysis is to assess the viability of sand dune
phacelia into the future under various plausible future scenarios.
Further explanation on our methodology and assumptions for our future
condition analysis can be found in our SSA report (Service 2021,
Chapter 6). We assessed the future condition of sand dune phacelia by
considering how invasive species competition, the effects of climate
change, small population size, and habitat management efforts may
affect populations over time. We considered the impacts of both habitat
management (invasive species removal) and climate change on the extent
of invasive species cover expected to occur in the future at each site.
Climate change is also projected to affect sea levels; thus, we
assessed each site for potential effects of inundation due to sea level
rise. In addition to the overall current condition categories of
``high,'' ``moderate,'' and ``low'' that were based on current habitat
and demographic factors, we included for the future condition analysis
the additional categories of ``very high,'' ``very low,'' and
``extirpated'' for populations where the overall condition was already
high but projected to improve, was already low but projected to
deteriorate further, or where the population (with fewer than 25
individuals) was expected to become extirpated, respectively.
Future Timeframe
We considered a timeframe for this analysis based upon the extent
into the future we could reasonably forecast the impact of the threats
on the species, given the data and models available to us. Global
climate models project changes in global temperature and other
associated climatic changes based on potential future scenarios of
greenhouse gas concentrations in the atmosphere (i.e., Representative
Concentration Pathways, or RCPs). RCP 4.5 assumes major near-future
cuts to carbon dioxide emissions, and RCP 8.5 assumes that current
emissions practices continue with no significant change (Terando et al.
2020, p. 10). Thus, these RCPs represent conditions in the upper and
lower ends of the range of what can reasonably be expected for the
future effects of climate change (Terando et al. 2020, p. 17). Climate
model projections are fairly aligned until about mid-century when they
start to diverge more, as this is the timeframe during which our near-
future carbon emissions begin to manifest in projections of future
climate. Although all projections into the future show global
temperature and sea level rise increasing, the variability or
uncertainty in the magnitude of changes expected becomes much greater
at this point. Therefore, we determined that the period of time from
the present to about mid-century to be the timeframe over which we
could most reliably project the future condition of sand dune phacelia.
As such, the timeframe for our analysis of the future condition of sand
dune phacelia extends to approximately the year 2060, which is the mid-
century timeframe available for the sea level rise projections we used
to assess inundation at sand dune phacelia populations (Service 2021,
p. 43).
Climate Change
Warming temperatures have already been documented and are expected
to continue in the Pacific Northwest, though changes will be somewhat
muted in coastal areas (Mote et al. 2019, summary p. 1). There have
been no clear discernible trends in annual precipitation, though there
will likely be modest increases in the winter and decreases of similar
scale in the summer (Mote et al. 2019, summary p. 1). Warming summer
temperatures paired with decreased summer precipitation may lead to
increased drought risk, which has the potential to cause stress,
desiccation, and even mortality in plant communities. Although
increased temperatures and decreased precipitation during the summer
growing season are likely to have negative effects on sand dune
phacelia, whether these changes will result in population-level impacts
in the next 40 years is unclear given the available data. Therefore, we
were unable to analyze the impacts of drought in our future scenarios.
Sea level rise projections in 1-foot increments were available at
three locations that span the entire range of sand dune phacelia (Coos
Bay and Port Orford in Oregon, and Crescent City in California). One
foot (0.3 meter) of sea level rise is projected to occur under RCP 8.5
by 2060 in Oregon and by 2070 in northern California but is not
projected to occur within this timeframe under RCP 4.5 (Climate Central
2020, no pagination). According to the sea level rise modeling tool we
used (National Oceanographic and Atmospheric Administration 2020, no
pagination), this amount of sea level rise under RCP 8.5 is not
projected to inundate the areas currently occupied by sand dune
phacelia. Further details of the sea level rise analysis we conducted,
including potential indirect effects such as erosion and storm surge
that we were unable to project, are available in the SSA (Service 2021,
Chapter 6, Appendix 2).
Invasive Species
As described previously in this report, invasive plant species, in
particular European beachgrass and gorse, unequivocally represent the
primary driver of sand dune phacelia's status presently and into the
future. Though some uncertainty remains as to how climate change will
impact biological invasions into the future, it is widely agreed that
changing climate, especially temperature and precipitation regimes,
will exacerbate the invasions of many alien species under future
conditions (Gervais et al. 2020, p. 1).
Although relatively few in number, some studies have demonstrated
the impacts of climate change on invasive species by modeling the
abundance, distribution, spread, and impact of invasive species in the
Pacific Northwest relative to climate model projections (Gervais et al.
2020, p. 1). Further, there is evidence that climate-induced expansions
of invasive species are already underway in this region (Gervais et al.
2020, p. 1). The best available information at this time does not allow
us to quantify the magnitude of these expansions, nor does it allow us
to predict how the population dynamics of sand dune phacelia at
occupied sites may be affected. However, we expect that the pressure
currently exerted upon sand dune phacelia populations due to
encroachment by invasive plant species
[[Page 16332]]
is likely to increase into the future in response to climate change. We
expect the negative impacts to sand dune phacelia from climate-related
invasive species expansion to be most evident under the higher
emissions scenario (RCP 8.5).
Small Population Size
We considered populations with fewer than 25 individuals likely to
become extirpated in the future. While small population size does not
appear to be a threat at the species level because there are multiple
adequately-sized populations found throughout the range of the species,
very small populations are at elevated risk for local extirpation, and
thus small population size is a threat at the population level. None of
the sites with very small populations currently have habitat management
practices to remove invasive species, and we did not assume new efforts
would be initiated but acknowledge that extirpation of very small
populations could be prevented with management intervention.
Habitat Management
As previously described, the removal of invasive species has been
shown to be the most effective strategy for maintaining and increasing
populations of sand dune phacelia. Because there are no management
plans in place at any of the population sites that would ensure the
continuation of or initiate new habitat management practices, and
funding for these practices is tenuous, we assumed that either habitat
management currently in place would continue or cease, but that
management efforts would not increase. We also assumed that populations
with current management practices in place would improve in condition
into the future with continued management, and those without management
currently in place would decline in condition into the future.
Future Scenarios
We considered two plausible future scenarios in our analysis of
future viability of sand dune phacelia. Scenario 1 assumes that current
habitat management actions to control invasive species will continue to
occur and will continue to benefit sand dune phacelia into the future.
Thus, the condition of populations of sand dune phacelia at sites that
are currently receiving habitat management will continue to improve
into the future. Conversely, under this scenario we assume that if no
actions to control invasive species are currently being implemented in
or adjacent to sand dune phacelia populations, no new efforts are
likely to be initiated, and habitat conditions will subsequently worsen
over time. Scenario 1 also assumes that RCP 4.5 is in effect, with
associated effects to sea level rise and a moderate increase in
invasive species expansion. Scenario 2 assumes that any habitat
management actions that are presently occurring will be discontinued
over time, and therefore no habitat management actions to control
invasive species are in effect in the future. Scenario 2 also assumes
that RCP 8.5 is in effect, with the associated effects to sea level
rise and a greater increase in invasive species expansion. Therefore,
these two scenarios represent our best understanding of the most
optimistic and the least optimistic of plausible futures we can expect
for sand dune phacelia.
Future Resiliency, Redundancy, and Representation
Rangewide, we conclude that under Scenario 1, nearly half (12 of
25) of all sand dune phacelia populations would become extirpated by
2060, and many of the remaining populations (7 of 13) would deteriorate
to Low or Very Low condition. However, the condition of those
populations that currently benefit from the active control of invasive
species would increase over time due to improved habitat conditions,
such that five populations would be in High or Very High condition
under Scenario 1. Future population resiliency fares worse under
Scenario 2, with well over half of all populations (68 percent)
becoming extirpated, and all remaining populations projected to be in
Low or Very Low condition (table 3). Thus, under either future scenario
we considered, many populations will become extirpated, and future
resiliency will be low among most remaining populations.
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[GRAPHIC] [TIFF OMITTED] TP22MR22.002
Future redundancy of sand dune phacelia declines under both future
scenarios we considered. Under Scenario 1, only 13 of the 25 extant
populations would exist rangewide by 2060, with about half of those in
Low or Very Low condition. However, five populations would remain in
High or Very High condition, with at least one population considered in
Very High condition in each representation unit. In the event of a
catastrophe in a part of its range, sand dune phacelia would likely
continue to exist in other parts of its range, albeit in low numbers
and condition. Under Scenario 2, only eight populations are estimated
to remain extant in 2060 and would be evenly split between Low and Very
Low condition. Due to the greatly reduced number of remaining
populations (mostly with low resiliency) under either future scenario,
sand dune phacelia redundancy will be low, rendering the species
vulnerable to catastrophic events within the future timeframe we
considered.
Representation is not expected to change significantly under either
future scenario we considered. All representation units will retain
populations, and each will have at least one population in Very High
condition under Scenario 1. However, only 13 populations are projected
to exist rangewide, with over half (54 percent) being in Very Low or
Low condition. Under Scenario 2, all populations are in Very Low or Low
condition, with very few populations existing in any of the
representation units. Fewer populations in the future would provide
less opportunity for diversity among individuals, with fewer
individuals available to contribute to the adaptive capacity of the
species. Isolation is also expected to increase in the future with the
expected reduction in size and number of populations on the landscape,
further decreasing the likelihood of genetic exchange. These factors
may result in a modest reduction in representation into the future, but
overall, populations (though fewer) will still be distributed across
the range of the species providing adequate representation.
Overall, we expect the viability of the species to decline by
varying degrees under the future scenarios considered. Persistence of
the two populations that contain 89 percent of known individuals, even
under the more
[[Page 16334]]
favorable future scenario considered, appears to depend upon continued
removal of introduced, invasive species. By mid-century (roughly 2060),
we expect sand dune phacelia will still occur on the landscape, but
likely with a significantly reduced number of sufficiently resilient
populations that are even more sparsely distributed across the
historical range of the species.
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have not
only analyzed individual effects on the species, but we have also
analyzed their potential cumulative effects. We incorporate the
cumulative effects into our SSA analysis when we characterize the
current and future condition of the species. To assess the current and
future condition of the species, we undertake an iterative analysis
that encompasses and incorporates the threats individually and then
accumulates and evaluates the effects of all the factors that may be
influencing the species, including threats and conservation efforts.
Because the SSA framework considers not just the presence of the
factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative effects analysis.
Determination of Sand Dune Phacelia 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 in danger of extinction throughout all or a significant
portion of its range, and a ``threatened species'' as a species likely
to become an endangered species within the foreseeable future
throughout all or a significant portion of its range. The Act requires
that we determine whether a species meets the definition of an
``endangered species'' or a ``threatened species'' because of any of
the following factors: (A) The present or threatened destruction,
modification, or curtailment of its habitat or range; (B)
Overutilization for commercial, recreational, scientific, or
educational purposes; (C) Disease or predation; (D) The inadequacy of
existing regulatory mechanisms; or (E) Other natural or manmade factors
affecting its continued existence.
Status Throughout All of Its Range
We carefully assessed the best scientific and commercial
information available regarding the past, present, and future stressors
to sand dune phacelia. The potential stressors we considered were:
Invasive species encroachment and competition (Factors A and E);
recreational impacts from OHV use and trampling (Factor A); coastal
development (Factor A); livestock grazing (Factor A); regulatory and
voluntary conservation efforts (Factor D); climate change impacts
including sea level rise and drought (Factor E); small population size
(Factor E); and pollinator decline (Factor E). There is no evidence
that overutilization (Factor B) or disease and predation (Factor C) are
impacting sand dune phacelia. We evaluated each potential stressor to
determine which stressors were likely to be drivers of the species'
current and future condition, and found that invasive species, climate
change, and small population size are the primary threats to the
species.
There are 25 naturally occurring, extant populations of sand dune
phacelia. Nearly 70 percent (17) of these populations are currently in
low condition according to our assessment, and nearly half (12) of the
populations have fewer than 25 individuals. However, extant populations
are distributed across the historical range of the species, and there
remains at least one highly resilient population and one moderately
resilient population in each of the three representative areas (in the
northern, middle, and southern regions of the range). Populations that
are currently in poor condition, many of which have fewer than 25
individuals, are at risk of extirpation without management
intervention. Many of these populations, especially those with very low
abundance, may never be likely to contribute meaningfully to the
species' viability. However, even without the very small (fewer than 25
individuals) populations on the landscape, the species would still
maintain 13 populations across the range, with 8 of those populations
being in moderate or high condition and evenly distributed across all 3
representation units. The distribution and maintenance of sufficiently
resilient populations, albeit few of them, across the historical range
of the species indicates an adequate degree of redundancy, making it
unlikely that a single catastrophic event would lead to the extirpation
of all extant populations.
While we have little evidence of diversity among members of the
species, sand dune phacelia is a relatively localized endemic
inhabiting a narrow ecological niche, so broad diversity is not
necessarily expected. Populations of sand dune phacelia remain
distributed across the three representation units and throughout its
known historical range, and therefore the species is currently
represented across the breadth of any ecological diversity that exists
within its range.
We know that the most influential threat to sand dune phacelia,
encroachment by invasive species (Factors A and E), can be successfully
mitigated with active habitat management. Effective habitat management
is currently ongoing at several population sites, including at the
largest population strongholds at the northern and southern extents of
the species' range (Bandon Preserve and Golf Course in Oregon and
Tolowa Dunes in California). It is also possible that if management
efforts continue or increase, they could promote the increase and
expansion of populations into the future.
Because of the presence of multiple populations in moderate to high
condition (or with adequate resiliency) distributed across all regions
of the species' historical range (redundancy) and across the breadth of
ecological conditions inhabited by the species (representation), as
well as the success of current conservation efforts to mitigate the
primary threat (invasive species) at population strongholds, we
determined that sand dune phacelia is not currently in danger of
extinction throughout its range.
Upon determining that sand dune phacelia is not at risk of
extinction now, we consider whether it is likely to become endangered
in the foreseeable future. According to our assessment of plausible
future scenarios, we conclude that the species is likely to become
endangered within the foreseeable future throughout all of its range
through decreased resiliency, redundancy, and representation. For the
purposes of this determination, the foreseeable future is considered to
be approximately 40 years from now (or approximately 2060), based on
the timeframe with which we could most reliably project the impacts of
climate change and the species' response to those impacts.
As previously noted, the primary driver of the sand dune phacelia's
status is habitat loss due to encroachment and competition by invasive
species (Factors A and E). This species is considered management-
dependent, relying on active and continuous removal of invasive species
such as European beachgrass and gorse to maintain habitat
[[Page 16335]]
conditions to support sand dune phacelia. Invasive species removal,
especially that which is effective and consistent enough to maintain
sand dune phacelia populations over time, is costly and labor-
intensive, and requires a significant commitment of resources.
Currently, while invasive species removal efforts are responsible for
maintaining the few (8 of 25) sand dune phacelia populations that are
in moderate to high condition, no formal commitments or agreements are
in place to continue these efforts, and many of these efforts are
dependent upon the will and resources of volunteer groups or private
landowners. The remaining strongholds of sand dune phacelia would
likely decline quickly in the absence of effective habitat management
efforts that are currently ongoing. Specifically, in the most severe
future scenario we considered, which includes the cessation of all
management efforts into the future, our analysis projects the
extirpation of most (17) populations in the future, with those
remaining (8) declining to low or very low condition.
Climate change (Factor E) may elevate the risk of drought, lead to
increased erosion caused by sea level rise and the increased frequency
and magnitude of storm surge, or potentially result in other negative
influences to sand dune phacelia, but we were unable to reliably
project how these influences would impact the species in our future
analysis. Climate change is expected to exacerbate the threat of
invasive species into the future, regardless of which emissions
scenarios we consider. Given the severity of the threat of invasive
species and the tenuous nature of habitat management into the future,
the synergistic effects of climate change and invasive species on sand
dune phacelia could be significant regardless of the magnitude of
climate change impacts on their own.
Small population size (Factor E) is a threat that affects nearly
half of the extant sand dune phacelia populations. These 12 populations
have fewer than 25 individuals and have no programs in place or
conservation efforts ongoing to ameliorate the threat of invasive
species, which is the primary cause of low sand dune phacelia abundance
at these sites. Without the implementation of habitat management
practices at these sites, we expect these very small populations to
become extirpated in the future.
Regulatory mechanisms (Factor D) and voluntary conservation efforts
by the States of Oregon and California, BLM, volunteer groups, and
private landowners, provide benefit to sand dune phacelia at the
affected population sites, mostly through invasive species removal
efforts and to some degree augmentation and reintroduction efforts.
However, while these efforts have helped reduce the impacts of invasive
species and small population size locally at certain populations, these
influences remain prominent threats to sand dune phacelia and continue
to affect the species as a whole.
Due to the continuation of threats at increasing levels into the
future, we anticipate a significant reduction in the distribution of
sand dune phacelia as the result of the extirpation of multiple
populations. Even in the most optimistic future scenario we considered,
nearly half of the extant populations of sand dune phacelia would
likely become extirpated, with only six populations remaining with
moderate to high/very high resiliency. The less optimistic future
projection would result in most populations becoming extirpated, and
any remaining populations would be in low or very low condition. These
types of declines illustrate a loss of resiliency among most
populations, as well as a significant reduction in redundancy and
representation, with fewer populations on the landscape to withstand
catastrophic events and maintain adaptive capacity. Remaining
populations in either future scenario will have lower resiliency,
leading to lower overall redundancy and representation. Even in the
most optimistic future scenario, the species will have low viability
and is therefore at risk of becoming endangered within the foreseeable
future.
Thus, after assessing the best available information, we conclude
that sand dune phacelia is likely to become in danger of extinction
within the foreseeable future throughout all of its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. The court in Center for Biological Diversity v. Everson,
2020 WL 437289 (D.D.C. Jan. 28, 2020) (Center for Biological
Diversity), vacated the aspect of the Final Policy on Interpretation of
the Phrase ``Significant Portion of Its Range'' in the Endangered
Species Act's Definitions of ``Endangered Species'' and ``Threatened
Species'' (79 FR 37578; July 1, 2014) that provided that the Service
does not undertake an analysis of significant portions of a species'
range if the species warrants listing as threatened throughout all of
its range. Therefore, we proceed to evaluating whether the species is
endangered in a significant portion of its range--that is, whether
there is any portion of the species' range for which both (1) the
portion is significant; and (2) the species is in danger of extinction
in that portion. Depending on the case, it might be more efficient for
us to address the ``significance'' question or the ``status'' question
first. We can choose to address either question first. Regardless of
which question we address first, if we reach a negative answer with
respect to the first question that we address, we do not need to
evaluate the other question for that portion of the species' range.
Following the court's holding in Center for Biological Diversity,
we now consider whether there are any significant portions of the
species' range where the species is in danger of extinction now (i.e.,
endangered). In undertaking this analysis for sand dune phacelia, we
choose to address the status question first--we consider information
pertaining to the geographic distribution of both the species and the
threats that the species faces to identify any portions of the range
where the species is endangered.
For sand dune phacelia, we considered whether the threats are
geographically concentrated in any portion of the species' range at a
biologically meaningful scale. We examined the threats of invasive
species and of climate change, including cumulative effects.
The threat of invasive species is pervasive throughout the range of
sand dune phacelia. The type of invasive species may vary regionally
(gorse, for example, is more prevalent in the northern extent of the
range), but the threat of invasive species encroachment in general is
equal in severity throughout the range. Similarly, both the efficacy of
mitigating the threat of invasive species through habitat restoration,
and the uncertainty related to funding availability to do so, appear
consistent throughout the species' range.
The effects of climate change appear to be similar across the
historical range of sand dune phacelia. Increases in temperature and
changes in seasonal precipitation that could increase the risk of
drought in the future are expected to occur to a similar magnitude
across the range of the species. Storm surge, which can lead to
flooding and erosion at coastal sites, is also expected to increase
with climate change, and we have no data to indicate that these impacts
would not be approximately equivalent across the range of sand dune
phacelia.
[[Page 16336]]
Sea level rise projections are also nearly identical across the coastal
habitat occupied by sand dune phacelia. Specifically, RCP 8.5 indicates
that the impacts of sea level rise are essentially equal across all
sites: Within the foreseeable future all sites will experience a 1-foot
(0.3 m) or less increase in sea level rise, which will not inundate any
of the population sites. The synergistic effects of climate change and
invasive species, with biological invasions being facilitated by
climate change, are also expected to occur in approximately equal
magnitude throughout the range of sand dune phacelia and likely
represent the more influential effect of climate change on the species
given that sea level rise is not projected to inundate any extant
population sites.
The threat of small population size also appears to be distributed
throughout the range, with low-abundance populations throughout the
range and distributed across all three representation units.
While there may be some variation in the source and intensity of
each individual threat at each population location, we found no
concentration of threats in any portion of the sand dune phacelia's
range at a biologically meaningful scale. Thus, there are no portions
of the species' range where the threats facing the species are
concentrated to a degree where the species in that portion would have a
different status from its rangewide status. Therefore, no portion of
the species' range provides a basis for determining that the species is
in danger of extinction in a significant portion of its range, and we
determine that the species is likely to become in danger of extinction
within the foreseeable future throughout all of its range. This does
not conflict with the courts' holdings in Desert Survivors v.
Department of the Interior, 331 F.Supp.3d 1131, 1136 (N.D. Cal. 2018),
and Center for Biological Diversity v. Jewell, 248 F. Supp. 3d, 946,
959 (D. Ariz. 2017) because, in reaching this conclusion, we did not
need to consider whether any portions are significant and therefore did
not apply the aspects of the Final Policy's definition of
``significant'' that those court decisions held were invalid.
Determination of Status
Our review of the best available scientific and commercial
information indicates that the sand dune phacelia meets the definition
of a threatened species. Therefore, we propose to list the sand dune
phacelia as a threatened species in accordance with sections 3(20) and
4(a)(1) of the Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies and
the prohibitions against certain activities are discussed, in part,
below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The recovery planning process involves the
identification of actions that are necessary to halt or reverse the
species' decline by addressing the threats to its survival and
recovery. The goal of this process is to restore listed species to a
point where they are secure, self-sustaining, and functioning
components of their ecosystems.
Recovery planning consists of preparing draft and final recovery
plans, beginning with the development of a recovery outline and making
it available to the public within 30 days of a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions and describes the process to be used to
develop a recovery plan. Revisions of the plan may be done to address
continuing or new threats to the species, as new substantive
information becomes available. The recovery plan also identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Recovery teams (composed of
species experts, Federal and State agencies, nongovernmental
organizations, and stakeholders) are often established to develop
recovery plans. When completed, the recovery outline, draft recovery
plan, and the final recovery plan will be available on our website
(<a href="https://www.fws.gov/endangered">https://www.fws.gov/endangered</a>), or from our Oregon Fish and Wildlife
Office (see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
If this species is listed, funding for recovery actions will be
available from a variety of sources, including Federal budgets, State
programs, and cost-share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, the States of Oregon and California
would be eligible for Federal funds to implement management actions
that promote the protection or recovery of the sand dune phacelia.
Information on our grant programs that are available to aid species
recovery can be found at: <a href="https://www.fws.gov/grants">https://www.fws.gov/grants</a>.
Although the sand dune phacelia is only proposed for listing under
the Act at this time, please let us know if you are interested in
participating in recovery efforts for this species. Additionally, we
invite you to submit any new information on this species whenever it
becomes available and any information you may have for recovery
planning purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as an
endangered or threatened species and with respect to its critical
habitat, if any is designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any action that is likely to jeopardize the
continued existence of a species proposed for listing or result in
destruction or adverse modification of proposed critical habitat. If a
species is listed subsequently, section 7(a)(2) of
[[Page 16337]]
the Act requires Federal agencies to ensure that activities they
authorize, fund, or carry out are not likely to jeopardize the
continued existence of the species or destroy or adversely modify its
critical habitat. If a Federal action may affect a listed species or
its critical habitat, the responsible Federal agency must enter into
consultation with the Service.
Federal agency actions within the species' habitat that may require
conference or consultation or both as described in the preceding
paragraph include management and any other landscape-altering
activities on Federal lands administered by the Bureau of Land
Management.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed, those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a proposed
listing on proposed and ongoing activities within the range of the
species proposed for listing. The discussion below regarding protective
regulations under section 4(d) of the Act complies with our policy.
II. Proposed Rule Issued Under Section 4(d) of the Act
Background
Section 4(d) of the Act contains two sentences. The first sentence
states that the Secretary shall issue such regulations as she deems
necessary and advisable to provide for the conservation of species
listed as threatened. The U.S. Supreme Court has noted that statutory
language like ``necessary and advisable'' demonstrates a large degree
of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)).
Conservation is defined in the Act to mean the use of all methods and
procedures which are necessary to bring any endangered species or
threatened species to the point at which the measures provided pursuant
to the Act are no longer necessary. Additionally, the second sentence
of section 4(d) of the Act states that the Secretary may by regulation
prohibit with respect to any threatened species any act prohibited
under section 9(a)(1), in the case of fish or wildlife, or section
9(a)(2), in the case of plants. Thus, the combination of the two
sentences of section 4(d) provides the Secretary with wide latitude of
discretion to select and promulgate appropriate regulations tailored to
the specific conservation needs of the threatened species. The second
sentence grants particularly broad discretion to the Service when
adopting the prohibitions under section 9.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, courts have upheld rules
developed under section 4(d) as a valid exercise of agency authority
where they prohibited take of threatened wildlife, or include a limited
taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007
U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council
v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D.
Wash. 2002)). Courts have also upheld 4(d) rules that do not address
all of the threats a species faces (see State of Louisiana v. Verity,
853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when
the Act was initially enacted, ``once an animal is on the threatened
list, the Secretary has an almost infinite number of options available
to him [or her] with regard to the permitted activities for those
species. He [or she] may, for example, permit taking, but not
importation of such species, or he [or she] may choose to forbid both
taking and importation but allow the transportation of such species''
(H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973).
Exercising this authority under section 4(d), we have developed a
proposed rule that is designed to address sand dune phacelia
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 sand dune phacelia. As discussed above under Summary of
Biological Status and Threats, we have concluded that sand dune
phacelia is likely to become in danger of extinction within the
foreseeable future primarily due to encroachment by invasive species,
small population size, and the effects of climate change. The
provisions of this proposed 4(d) rule would promote conservation of
sand dune phacelia by encouraging management of the landscape in ways
that meet the conservation needs of the sand dune phacelia. The
provisions of this proposed rule are one of many tools that we would
use to promote the conservation of sand dune phacelia. This proposed
4(d) rule would apply only if and when we make final the listing of the
sand dune phacelia as a threatened species.
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, Tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat--and actions
on State, Tribal, local, or private lands that are not federally
funded, authorized, or carried out by a Federal agency--do not require
section 7 consultation.
This obligation does not change in any way for a threatened species
with a species-specific 4(d) rule. Actions that result in a
determination by a Federal agency of ``not likely to adversely affect''
continue to require the Service's written concurrence and actions that
are ``likely to adversely affect'' a species require formal
consultation and the formulation of a biological opinion.
Provisions of the Proposed 4(d) Rule
This proposed 4(d) rule would provide for the conservation of the
sand dune phacelia by prohibiting the following activities applicable
to an endangered plant, except as otherwise authorized or permitted:
Import or export; certain acts related to removing, damaging, and
destroying on areas under Federal jurisdiction; delivery, receipt,
transport, or shipment in interstate or foreign commerce in the course
of commercial activity; and sale
[[Page 16338]]
or offering for sale in interstate or foreign commerce.
As discussed above under Summary of Biological Status and Threats,
encroachment by native and nonnative invasive species (Factors A and
E), small population size (Factor E), and climate change (Factor E)
affect the status of sand dune phacelia. Additionally, a range of
activities have the potential to negatively affect individual sand dune
phacelia, including recreational impacts such as off-road vehicle use
and inadvertent trampling through pedestrian or equestrian activities.
To protect the species from these stressors, in addition to the
protections that apply to Federal lands, the 4(d) rule would prohibit a
person from removing, cutting, digging up, or damaging or destroying
the species on non-Federal lands in knowing violation of any law or
regulation of any State or in the course of any violation of a State
criminal trespass law. As most populations of sand dune phacelia occur
off Federal land, these protections in the 4(d) rule are key to its
effectiveness. For example, any damage to the species on non-Federal
land in violation of a State off-highway vehicle law would be
prohibited by the 4(d) rule. Additionally, any damage incurred by the
species due to criminal trespass on non-Federal lands would similarly
violate the proposed 4(d) rule. Regulating these activities will help
preserve the species' remaining populations, slow their rate of
decline, and decrease synergistic, negative effects from other
stressors. As a whole, the proposed 4(d) rule would help in the efforts
to recover sand dune phacelia by limiting specific actions that damage
individual populations.
We may issue permits to carry out otherwise prohibited activities,
including those described above, involving threatened plants under
certain circumstances. Regulations governing permits for threatened
plants are codified at 50 CFR 17.72, which states that the Director may
issue a permit authorizing any activity otherwise prohibited with
regard to threatened species. That regulation also states that the
permit shall be governed by the provisions of 50 CFR 17.72 unless a
special rule applicable to the plant is provided in 50 CFR 17.73 to
17.78. We interpret that second sentence to mean that permits for
threatened species are governed by the provisions of 50 CFR 17.72
unless a special rule, which we have defined to mean a species-specific
4(d) rule, provides otherwise. We recently promulgated revisions to 50
CFR 17.71 providing that 50 CFR 17.71 will no longer apply to plants
listed as threatened in the future. We did not intend for those
revisions to limit or alter the applicability of the permitting
provisions in 50 CFR 17.72, or to require that every species-specific
4(d) rule spell out any permitting provisions that apply to that
species and species-specific 4(d) rule.
To the contrary, we anticipate that permitting provisions would
generally be similar or identical for most species, so applying the
provisions of 50 CFR 17.72 unless a species-specific 4(d) rule provides
otherwise would likely avoid substantial duplication. Moreover, this
interpretation brings 50 CFR 17.72 in line with the comparable
provision for wildlife at 50 CFR 17.32, in which the second sentence
states that the permit shall be governed by the provisions of 50 CFR
17.32 unless a special rule applicable to the wildlife, appearing in 50
CFR 17.40 to 17.48, provides otherwise. Under 50 CFR 17.72 with regard
to threatened plants, a permit may be issued for the following
purposes: for scientific purposes, to enhance propagation or survival,
for economic hardship, for botanical or horticultural exhibition, for
educational purposes, or for other purposes consistent with the
purposes and policy of the Act. Additional statutory exemptions from
the prohibitions are found in sections 9 and 10 of the Act.
We recognize the special and unique relationship with our State
natural resource agency partners in contributing to conservation of
listed species. State agencies often possess scientific data and
valuable expertise on the status and distribution of endangered,
threatened, and candidate species of wildlife and plants. State
agencies, because of their authorities and their close working
relationships with local governments and landowners, are in a unique
position to assist the Service in implementing all aspects of the Act.
In this regard, section 6 of the Act provides that the Service shall
cooperate to the maximum extent practicable with the States in carrying
out programs authorized by the Act. Therefore, any qualified employee
or agent of a State conservation agency that is a party to a
cooperative agreement with the Service in accordance with section 6(c)
of the Act, who is designated by his or her agency for such purposes,
would be able to conduct activities designed to conserve sand dune
phacelia that may result in otherwise prohibited activities without
additional authorization.
Nothing in this proposed 4(d) rule would change in any way the
recovery planning provisions of section 4(f) of the Act, the
consultation requirements under section 7 of the Act, or the ability of
the Service to enter into partnerships for the management and
protection of sand dune phacelia. However, interagency cooperation may
be further streamlined through planned programmatic consultations for
the species between Federal agencies and the Service, where
appropriate. We ask the public, particularly State agencies and other
interested stakeholders that may be affected by the proposed 4(d) rule,
to provide comments and suggestions regarding additional guidance and
methods that the Service could provide or use, respectively, to
streamline the implementation of this proposed 4(d) rule (see
Information Requested, above).
III. Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals). Additionally, our regulations
at 50 CFR 424.02 define the word ``habitat,'' for the purposes of
designating critical habitat only, as the abiotic and biotic setting
that currently or periodically contains the resources and conditions
necessary to support one or more life processes of a species.
Conservation, as defined under section 3 of the Act, means the use
of all methods and procedures that are necessary to bring an endangered
or threatened species to the point at which the measures provided
pursuant to the Act are no longer necessary. Such
[[Page 16339]]
methods and procedures include, but are not limited to, all activities
associated with scientific resources management such as research,
census, law enforcement, habitat acquisition and maintenance,
propagation, live trapping, and transplantation, and, in the
extraordinary case where population pressures within a given ecosystem
cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation also does not allow the
government or public to access private lands. Such designation does not
require implementation of restoration, recovery, or enhancement
measures by non-Federal landowners. Where a landowner requests Federal
agency funding or authorization for an action that may affect a listed
species or critical habitat, the Federal agency would be required to
consult with the Service under section 7(a)(2) of the Act. However,
even if the Service were to conclude that the proposed activity would
result in destruction or adverse modification of the critical habitat,
the Federal action agency and the landowner are not required to abandon
the proposed activity, or to restore or recover the species; instead,
they must implement ``reasonable and prudent alternatives'' to avoid
destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical or biological features that occur in specific occupied areas,
we focus on the specific features that are essential to support the
life-history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, prey, vegetation,
symbiotic species, or other features. A feature may be a single habitat
characteristic or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. The implementing regulations at 50 CFR 424.12(b)(2) further
delineate unoccupied critical habitat by setting out three specific
parameters: (1) When designating critical habitat, the Secretary will
first evaluate areas occupied by the species; (2) the Secretary will
only consider unoccupied areas to be essential where a critical habitat
designation limited to geographical areas occupied by the species would
be inadequate to ensure the conservation of the species; and (3) for an
unoccupied area to be considered essential, the Secretary must
determine that there is a reasonable certainty both that the area will
contribute to the conservation of the species and that the area
contains one or more of those physical or biological features essential
to the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report and information developed during the
listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge.
As the regulatory definition of ``habitat'' reflects (50 CFR
424.02), habitat is dynamic, and species may move from one area to
another over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and (3) the prohibitions found in section 9 of the Act.
Federally funded or permitted projects affecting listed species outside
their designated critical habitat areas may still result in jeopardy
findings in some cases. These protections and conservation tools will
continue to contribute to recovery of the species. Similarly, critical
habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans
(HCPs), or other species conservation planning efforts if new
information available at the time of those planning efforts calls for a
different outcome.
Prudency Determination
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary shall designate critical habitat at the
time the species is determined to be an endangered or threatened
species. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary
may, but is not
[[Page 16340]]
required to, determine that a designation would not be prudent in the
following circumstances:
(i) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(ii) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(iii) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States;
(iv) No areas meet the definition of critical habitat; or
(v) The Secretary otherwise determines that designation of critical
habitat would not be prudent based on the best scientific data
available.
As discussed earlier in this document, there is currently no
imminent threat of collection or vandalism identified under Factor B
for this species, and identification and mapping of critical habitat is
not expected to initiate any such threat. In our SSA report and
proposed listing determination for sand dune phacelia, we determined
that the present or threatened destruction, modification, or
curtailment of habitat or range is a threat to sand dune phacelia and
that those threats in some way can be addressed by section 7(a)(2)
consultation measures. The species occurs wholly in the jurisdiction of
the United States, and we are able to identify areas that meet the
definition of critical habitat. Therefore, because none of the
circumstances enumerated in our regulations at 50 CFR 424.12(a)(1) have
been met and because the Secretary has not identified other
circumstances for which this designation of critical habitat would be
not prudent, we have determined that the designation of critical
habitat is prudent for sand dune phacelia.
Critical Habitat Determinability
Having determined that designation is prudent, under section
4(a)(3) of the Act we must find whether critical habitat for the sand
dune phacelia is determinable. Our regulations at 50 CFR 424.12(a)(2)
state that critical habitat is not determinable when one or both of the
following situations exist: (i) Data sufficient to perform required
analyses are lacking, or (ii) the biological needs of the species are
not sufficiently well known to identify any area that meets the
definition of ``critical habitat.'' When critical habitat is not
determinable, the Act allows the Service an additional year to publish
a critical habitat designation (16 U.S.C. 1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological
needs of the species and habitat characteristics where this species is
located. This and other information represent the best scientific data
available and led us to conclude that the designation of critical
habitat is determinable for the sand dune phacelia.
Physical or Biological Features Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and that
may require special management considerations or protection. The
regulations at 50 CFR 424.02 define ``physical or biological features
essential to the conservation of the species'' as the features that
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, prey,
vegetation, symbiotic species, or other features. A feature may be a
single habitat characteristic or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity. For example,
physical features essential to the conservation of the species might
include gravel of a particular size required for spawning, alkaline
soil for seed germination, protective cover for migration, or
susceptibility to flooding or fire that maintains necessary early-
successional habitat characteristics. Biological features might include
prey species, forage grasses, specific kinds or ages of trees for
roosting or nesting, symbiotic fungi, or a particular level of
nonnative species consistent with conservation needs of the listed
species. The features may also be combinations of habitat
characteristics and may encompass the relationship between
characteristics or the necessary amount of a characteristic essential
to support the life history of the species.
In considering whether features are essential to the conservation
of the species, we may consider an appropriate quality, quantity, and
spatial and temporal arrangement of habitat characteristics in the
context of the life-history needs, condition, and status of the
species. These characteristics include, but are not limited to, space
for individual and population growth and for normal behavior; food,
water, air, light, minerals, or other nutritional or physiological
requirements; cover or shelter; sites for breeding, reproduction, or
rearing (or development) of offspring; and habitats that are protected
from disturbance.
The following features are essential to the conservation of sand
dune phacelia:
Sandy Coastal Dune Habitat With Adequate Light Exposure, Water, and
Growing Space
Sandy coastal dune habitat above the high tide line that provides a
high light environment, room for growth, and adequate moisture is
required to support sand dune phacelia populations. Sandy areas must
have open (unvegetated) space within them to accommodate population
expansion. The physical features of sunlight, space, and water are
essential for seedling establishment and growth, and facilitate the
development of large, mature plants that produce copious amounts of
seed. While we lack information on specific quantities associated with
this need (such as maximum percent canopy cover that the species can
tolerate), it is clear that sandy habitats that provide the essential
features of sunlight, space, and water for sand dune phacelia tend to
have lower cover of competitive invasive species, particularly European
beachgrass and gorse.
Adequate Pollinator Community
A sufficient abundance of pollinators, particularly leafcutter bees
(Family: Megachilidae), are required for genetic exchange among sand
dune phacelia individuals. Sand dune phacelia appears to be largely
incapable of significant self-pollination (Meinke 2016, p. 3), relying
primarily on leafcutter bees (Anthidium palliventre) and bumblebees
(Bombus spp.) for pollination. Ants (Formica spp.) and beetles
(unidentified spp.) have also been observed in association with sand
dune phacelia flowers, but it is unclear how effective they are at
pollination (Rittenhouse 1995, p. 8).
[[Page 16341]]
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential to
the conservation of sand dune phacelia from studies of the species'
habitat, ecology, and life history as described below. Additional
information can be found in the SSA report (Service 2021, entire,
available on <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No. FWS-R1-ES-
2021-0070). We have determined that the following physical or
biological features are essential to the conservation of sand dune
phacelia:
<bullet> Sandy coastal dune habitat above the high tide line that
provides a high light environment, room for growth, and adequate
moisture;
<bullet> A sufficiently abundant pollinator community (which may
include leafcutter bees and bumble bees) for pollination and
reproduction;
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection. In the case of sand dune phacelia, these essential features
include sandy dune habitat with high light exposure and adequate
moisture and unvegetated space, as well as a sufficiently large and
diverse pollinator community, and a minimum of 25 reproductively mature
sand dune phacelia plants within dispersal distance of one another to
sustain a population.
These features essential to sand dune phacelia conservation may
require special management considerations or protection to reduce the
threat of invasive species encroachment, and to withstand climate
change effects such as drought and sea level rise. In addition,
localized stressors related to recreational activity, such as off-road
vehicle use and pedestrian or equestrian trampling, may also need to be
mitigated by special management practices to maintain viable sand dune
phacelia populations.
Management activities that could ameliorate these threats include,
but are not limited to: (1) Habitat restoration activities in sand dune
habitat that include the removal of invasive species such as nonnative
European beachgrass and gorse, or native successional species such as
shore pine; (2) efforts to restore a diverse and abundant pollinator
community, such as through restricting land management practices that
harm pollinator species, or through support of a diverse native nectar
plant community; (3) access restrictions and enforcement for off-road
vehicle use in areas occupied by sand dune phacelia; (4) recreational
restrictions to prevent trampling of sand dune phacelia by pedestrians
or equestrians; and (5) augmentation and reintroduction programs to
expand phacelia populations.
These management activities will protect the physical and
biological features (PBFs) essential for the conservation of sand dune
phacelia by providing native sandy dune habitat that allows for sand
dune phacelia population growth and expansion, supporting the
pollinator community that enables sand dune phacelia reproduction,
protecting sand dune phacelia populations from trampling and crushing,
and maintaining an adequate number of sand dune phacelia individuals
necessary to sustain viable populations.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat. We are not currently proposing to
designate any areas outside the geographical area occupied by the
species because we have not identified any unoccupied areas that meet
the definition of critical habitat. We determined that the areas
currently occupied by populations of sand dune phacelia made up of at
least 25 individuals, if recovered, would be sufficient to conserve the
species. The extant populations with at least 25 individuals are
distributed across the three representation units and across the
historical range of the species and, therefore, also span any
ecological diversity that may exist within the species' range.
Therefore, if these populations were recovered to sufficient
resiliency, they would provide adequate redundancy and representation
for the species. Because currently occupied areas are sufficient to
recover the species, we conclude that currently unoccupied areas do not
meet the definition of critical habitat because they are not essential
to the conservation of the species. In summary, for areas within the
geographic area occupied by the species at the time of listing, we
delineated critical habitat unit boundaries using the following
criteria:
Across the representation units, there are 25 naturally occurring
sand dune phacelia populations consisting of a total of 94 polygons
(patches of sand dune phacelia). We developed critical habitat units
within each representation unit by joining patches of sand dune
phacelia within each population to form discrete units; this was
accomplished by joining patch vertices and creating minimum convex
polygons. We considered patches to be part of the same population if
they are within 0.30 miles (0.48 km) of each other in Oregon (as
defined by Oregon Natural Heritage Information Center) or 0.25 miles
(0.4 km) of each other in California (as defined by the California
Natural Diversity Database).
A minimum of 25 reproductively mature plants are required for
breeding purposes to maintain viability in a population. Extant sand
dune phacelia populations are isolated from one another on the
landscape, with no possibility of natural dispersal between
populations. As such, each individual population relies on having an
adequate number of its own members to sustain itself and avoid
extirpation. Although there are no data related to the minimum number
of individuals necessary to sustain the viability of a sand dune
phacelia population, we assume that at least 25 reproductively mature
plants are needed for sufficient reproduction to allow the population
to withstand stochastic events.
Because we consider populations comprising fewer than 25 plants as
being in low condition and unlikely to contribute meaningfully to
recovery, we designated critical habitat only around populations with
equal to or greater than 25 individuals. This consideration resulted in
the creation of 13 critical habitat units.
Some patches within the same population were separated by habitat
that was unsuitable (i.e., does not contain PBFs). We avoided including
unsuitable habitat within the critical habitat units by joining patches
only if the intervening habitat contained at least one PBF. We further
limited the inclusion of unsuitable habitat by removing areas from the
unit that were clearly unsuitable (e.g., forest, water bodies) to the
maximum extent possible given the scale of mapping.
When determining proposed critical habitat boundaries, we made
every
[[Page 16342]]
effort to avoid including developed areas such as lands covered by
buildings, pavement, and other structures because such lands lack
physical or biological features necessary for sand dune phacelia. The
scale of the maps we prepared under the parameters for publication
within the Code of Federal Regulations may not reflect the exclusion of
such developed lands. Any such lands inadvertently left inside critical
habitat boundaries shown on the maps of this proposed rule have been
excluded by text in the proposed rule and are not proposed for
designation as critical habitat. Therefore, if the critical habitat is
finalized as proposed, a Federal action involving these lands would not
trigger section 7 consultation with respect to critical habitat and the
requirement of no adverse modification unless the specific action would
affect the physical or biological features in the adjacent critical
habitat.
We propose to designate as critical habitat lands that we have
determined are occupied at the time of listing (i.e., currently
occupied). Thirteen critical habitat units are proposed for designation
based on the physical or biological features being present to support
sand dune phacelia's life-history processes. All of the critical
habitat units contain all of the identified physical or biological
features and support multiple life-history processes necessary to
support the sand dune phacelia's use of that habitat.
The proposed critical habitat designation is defined by the map or
maps, as modified by any accompanying regulatory text, presented at the
end of this document under Proposed Regulation Promulgation. We include
more detailed information on the boundaries of the critical habitat
designation in the preamble of this document. We will make the
coordinates or plot points or both on which each map is based available
to the public on <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R1-ES-
2021-0070, and on our internet site at <a href="https://www.fws.gov/oregonfwo">https://www.fws.gov/oregonfwo</a>.
Proposed Critical Habitat Designation
We are proposing to designate approximately 252 ac (102 ha) in 13
units as critical habitat for sand dune phacelia. The critical habitat
areas we describe below constitute our current best assessment of areas
that meet the definition of critical habitat for sand dune phacelia.
The 13 critical habitat units we propose are: (1) North Bandon 1, (2)
North Bandon 2, (3) Lost Lake, (4) Floras Lake, (5) Cape Blanco, (6)
Paradise Point, (7) Pistol River North, (8) Pistol River South, (9)
Lone Ranch, (10) Pacific Shores, (11) Tolowa Dunes, (12) Point St.
George, and (13) Pebble Beach. All 13 critical habitat units are
occupied by the species. Table 4 shows the proposed critical habitat
units and the approximate area, broken down by land ownership, for each
unit.
We present brief descriptions of all critical habitat units below.
Note that all units of critical habitat described below meet the
definition of critical habitat for sand dune phacelia because all of
the units are occupied by sand dune phacelia, and all units contain all
of the physical and biological features essential to the species.
Table 4--Proposed Critical Habitat Units for Sand Dune Phacelia
----------------------------------------------------------------------------------------------------------------
Private (ac Federal (ac State (ac County (ac Total (ac
(ha)) (ha)) (ha)) (ha)) (ha))
----------------------------------------------------------------------------------------------------------------
Oregon
----------------------------------------------------------------------------------------------------------------
North Bandon 1.................. 0.6 (0.2) 0 0 0 0.6 (0.2)
North Bandon 2.................. 54.4 (22) 0 6.9 (2.8) 0 61.3 (24.8)
Lost Lake....................... 2.8 (1.1) 0.8 (0.3) 0.1 (0.04) 0 3.7 (1.5)
Floras Lake..................... 0 5.8 (2.3) 0 0 5.8 (2.3)
Cape Blanco..................... 0 0 2.0 (0.8) 0 2.0 (0.8)
Paradise Point.................. 3.7 (1.5) 0 0 0 3.7 (1.5)
Pistol River North.............. 0 0 3.2 (1.3) 0 3.2 (1.3)
Pistol River South.............. 0 0 0.7 (0.3) 0 0.7 (0.3)
Lone Ranch...................... 0 0 6.5 (2.6) 0 6.5 (2.6)
----------------------------------------------------------------------------------------------------------------
California
----------------------------------------------------------------------------------------------------------------
Pacific Shores.................. 54.4 (22) 0 37.9 (15.3) 0 92.3 (37.4)
Tolowa Dunes.................... 0 0 69.6 (28.2) 0 69.6 (28.2)
Pt. St. George.................. 0.1 (0.4) 0 0 1.0 (0.4) 1.1 (0.4)
Pebble Beach.................... 0 0 1.3 (0.5) 0.4 (0.2) 1.7 (0.7)
-------------------------------------------------------------------------------
Totals...................... 116 (46.9) 6.6 (2.8) 128.2 (51.9) 1.4 (0.6) 252.2 (102.1)
----------------------------------------------------------------------------------------------------------------
Note: Area estimates reflect suitable habitat within critical habitat unit boundaries, with non-habitat (as
identified by textual description) excluded. Area sizes may not sum due to rounding.
Unit 1: North Bandon 1
Unit 1 consists of 0.6 ac (0.2 ha) in Coos County, Oregon. It is at
the northernmost limit of the sand dune phacelia's range in Coos County
and is located on the privately owned Bandon Dunes Golf Resort.
Invasive species are an ongoing threat at this site, and therefore
invasive species management may be required. A stated goal of the
conservation-minded owner is to protect and enhance sand dune phacelia
at the site, and the population here has flourished due to the removal
of heavy infestations of gorse (Gunther 2012, no pagination).
Unit 2: North Bandon 2
Unit 2 consists of 61.3 ac (24.8 ha) in Coos County, Oregon, and
currently supports the largest population of sand dune phacelia
rangewide. The majority (54.4 ac (22 ha)) of the habitat at this site
is on the privately owned Bandon Dunes Golf Resort. The population here
is now the largest rangewide, with over 24,000 individuals (Brown 2020a
database). Invasive species are the primary threat, and therefore
invasive species management may be required. Conservation and
restoration implemented by the golf resort are largely responsible for
the high
[[Page 16343]]
condition of this population and its habitat. While there are no formal
agreements in place to protect sand dune phacelia at the resort, we
have no evidence at this time that management efforts at this site will
be discontinued. Part of the population (6.9 ac (2.8 ha)) is in State
park ownership (Bullard's Beach) and implementation of invasive species
control, particularly gorse, could result in an expanded sand dune
phacelia population in the park.
Unit 3: Lost Lake
Unit 3 consists of 3.7 ac (1.5 ha) in Coos County, Oregon. The Lost
Lake unit contains land within the Coos Bay New River Area of Critical
Environmental Concern (ACEC) (0.8 ac (0.3 ha)) that is federally
managed by BLM, State-managed land (0.1 ac (0.04 ha)) within the Bandon
State Natural Area (BSNA), and undeveloped private land (2.8 ac (1.1
ha)). Stressors in Unit 3 include illegal off-highway vehicle (OHV) use
and the persistent threat of invasive species. As such, managing OHV
use may benefit the unit, and invasive species management may be
required to maintain it. Sand dune phacelia has greatly benefited from
BLM's efforts to remove invasive species in the Lost Lake area, and it
is likely that there is room for expansion of this population provided
that annual, or nearly annual, vegetation management continues.
Augmentation efforts, including transplanting and seeding, have also
occurred at Lost Lake on the ACEC.
Unit 4: Floras Lake
Unit 4 consists of 5.8 ac (2.3 ha) in Curry County, Oregon. Like
Unit 3, Floras Lake is a part of BLM's New River ACEC. BLM monitors and
regularly manages the habitat to maintain the open sand conditions that
the sand dune phacelia requires, contributing to the fact that the
population of sand dune phacelia at Floras Lake is the largest
naturally occurring (i.e., not introduced) population on Federal land.
BLM has augmented populations in this subunit with transplants. In
addition to the threat of invasive species, other stressors include
trampling by hikers and wintertime flooding from Floras Lake. Dependent
upon the intensity, these activities could also be beneficial as they
mobilize sand and clear habitat of invasive species. As such,
mitigating the impacts of pedestrian use, flooding, and invasive
species, may be required. Sea level rise may pose an additional threat.
As determined by our future condition analysis, a 1-foot rise in sea
level by 2060 would barely reach the seaward boundary of the unit;
however, other accompanying effects of climate change, like increased
storm surge, may also affect sand dune phacelia habitat in this unit.
Unit 5: Cape Blanco
Unit 5 consists of 2.0 ac (0.8 ha) in Curry County, Oregon. The
unit is State-managed by the Oregon Parks and Recreation Department
(OPRD) and consists of sandy bluffs above the high tide line. A
naturally occurring population was augmented with transplants in 2018.
Invasive species are a threat at this site, and therefore invasive
species management may be required.
Unit 6: Paradise Point
Unit 6 consists of 3.7 ac (1.5 ha) in Curry County, Oregon. It is
separated from Unit 5 by the Elk River and bounded to the east by
private ranchlands. Unit 6 is made up of undeveloped private land,
limited to sandy bluffs between the high tide line and adjacent
pastureland. Although it is privately owned, the State (OPRD) has
jurisdiction over the land in Unit 6 as well as some adjacent State-
owned land. In addition to the threat of invasive species, other
factors influencing the population at this site include OHV use,
erosion, and storm surge associated with sea level rise. As such,
invasive species management may be required, and other management
associated with mitigating the impacts of OHV use, erosion, and
flooding may also be beneficial.
Unit 7: Pistol River North
Unit 7 consists of 3.2 ac (1.3 ha) in Curry County, Oregon. The
land on Unit 7 lies southwest of the Pistol River and is State-managed
by OPRD (Pistol River State Park) and the Oregon Department of
Transportation. As with all other units, invasive species are a threat,
and therefore invasive species management may be required. Another
stressor affecting Unit 7 is erosion, as the mouth of the Pistol River
changes location annually, scouring the dunes and carrying sand out to
sea.
Unit 8: Pistol River South
Unit 8 consists of 0.7 ac (0.3 ha) in Curry County, Oregon. The
land is south of Unit 7 and also located on Pistol River State Park.
Invasive species are a threat here, and the site is surrounded by
European beachgrass and encroaching shore pine. As such, invasive
species management may be required.
Unit 9: Lone Ranch
Unit 9 consists of 6.5 ac (2.6 ha) in Curry County, Oregon, and
currently supports the third largest population of sand dune phacelia
throughout its range. It is composed entirely of land managed by the
State (OPRD; Boardman State Park). There is an imminent threat to the
population at this site posed by a number of invasive species. As such,
invasive species management may be required. Existing control of weedy
species for recreational trail access may be maintaining existing
suitable habitat.
Unit 10: Pacific Shores
Unit 10 consists of 92.3 ac (37.4 ha) in Del Norte County,
California. State lands make up 37.9 ac (15.3 ha) of this site, with
the remaining 54.4 acres (22 ha) in private ownership at this time.
This area represents an abandoned real estate venture, where lands were
subdivided into 0.5-ac (0.20-ha) lots in the 1960s for residential
development. Over 1,500 lots were sold and approximately 27 miles of
road and electric transmission line were constructed. However, the area
remains undeveloped due to permitting issues, and the empty lots are
now being acquired for conservation by a coalition of entities for
inclusion into the State's Lake Earl Wildlife Area. Approximately 430
lots remain in private ownership. Invasive species are a threat here,
and therefore invasive species management may be required. In addition,
because much of the sand dune phacelia population in the unit occurs
adjacent to roadways or other readily accessible areas, the unit is
considered heavily impacted by human activities that include OHV use.
Special management considerations to mitigate the impact to sand dune
phacelia habitat from these activities may be required.
Unit 11: Tolowa Dunes
Unit 11 consists of 69.6 ac (28.2 ha) in Del Norte County,
California, and currently supports the second largest population of
sand dune phacelia rangewide. The unit is State-managed in part by
California State Parks (on Tolowa Dunes State Park) and the California
Department of Fish and Wildlife (on Lake Earl Wildlife Area). Invasive
species are a threat here and OHV use also impacts this site. As such,
managing OHV use and invasive species may be required. The relatively
high abundance of sand dune phacelia in Unit 11 is attributed to a
concerted restoration program that has removed invasive species,
particularly European beachgrass. These efforts have made this
population the stronghold for the
[[Page 16344]]
species in California and an important contributor to sand dune
phacelia resiliency and redundancy rangewide. However, much of the
restoration at this site has been conducted by volunteers, and funding
to continue maintaining restored habitat is uncertain.
Unit 12: Point Saint George
Unit 12 consists of 1.1 ac (0.4 ha) in Del Norte County,
California. The vast majority of the land (1 ac (0.4 ha)) is county-
managed by Del Norte County Parks, and the other 0.1 ac (0.04 ha) is
privately owned. Invasive species, particularly annual grasses, are
prolific in this unit and therefore invasive species management may be
required. However, a large proportion of the sand dune phacelia
population at this site occurs near a hiking trail where disturbance
has kept the area relatively free of invasive species.
Unit 13: Pebble Beach
Unit 13 consists of 1.7 ac (0.7 ha) in Del Norte County,
California. While 0.4 ac (0.2 ha) of the land here is county land, the
rest (1.3 ac (0.5 ha)) is State-managed by the California Department of
Transportation. Invasive species pose a substantial threat at this
site, primarily Hottentot fig or iceplant (Carpobrotus edulis), and
therefore invasive species management may be required. Additionally,
much of this unit is located within a road right-of-way, and therefore
road development or maintenance activities could impact sand dune
phacelia individuals, some of which are quite large and productive. As
such, special management to mitigate the impact to sand dune phacelia
habitat from these activities may be required.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
We published a final rule revising the definition of destruction or
adverse modification on August 27, 2019 (84 FR 44976). Destruction or
adverse modification means a direct or indirect alteration that
appreciably diminishes the value of critical habitat as a whole for the
conservation of a listed species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, Tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat--and actions
on State, Tribal, local, or private lands that are not federally
funded, authorized, or carried out by a Federal agency--do not require
section 7 consultation.
Compliance with the requirements of section 7(a)(2) is documented
through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood
of jeopardizing the continued existence of the listed species and/or
avoid the likelihood of destroying or adversely modifying critical
habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 set forth requirements for Federal
agencies to reinitiate formal consultation on previously reviewed
actions. These requirements apply when the Federal agency has retained
discretionary involvement or control over the action (or the agency's
discretionary involvement or control is authorized by law) and,
subsequent to the previous consultation: (1) If the amount or extent of
taking specified in the incidental take statement is exceeded; (2) if
new information reveals effects of the action that may affect listed
species or critical habitat in a manner or to an extent not previously
considered; (3) if the identified action is subsequently modified in a
manner that causes an effect to the listed species or critical habitat
that was not considered in the biological opinion; or (4) if a new
species is listed or critical habitat designated that may be affected
by the identified action.
In such situations, Federal agencies sometimes may need to request
reinitiation of consultation with us, but the regulations also specify
some exceptions to the requirement to reinitiate consultation on
specific land management plans after subsequently listing a new species
or designating new critical habitat. See the regulations for a
description of those exceptions.
Application of the ``Destruction or Adverse Modification'' Standard
The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat as a
whole for the conservation of the listed species. As discussed above,
the role of critical habitat is to support physical or biological
features essential to the conservation of a listed species and provide
for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate section
7(a)(2) of the Act by destroying or adversely modifying such habitat,
or that may be affected by such designation.
[[Page 16345]]
Activities that the Service may, during a consultation under
section 7(a)(2) of the Act, consider likely to destroy or adversely
modify critical habitat include, but are not limited to:
(1) Actions that would destroy, alter, or convert sand dune
habitat. Such activities could include, but are not limited to, the
construction of new roads or utility lines, dune breaching or breaching
of water bodies for flood control, bridge work, and the use of heavy
equipment for regular maintenance activities (such as roadway
maintenance). These activities could eliminate or reduce the sandy dune
habitat necessary for sand dune phacelia growth and reproduction.
(2) Actions that would inhibit or reduce native plant communities
and the pollinator communities they support. Such activities could
include, but are not limited to, herbicide or insecticide application.
These activities could limit the ability of sand dune phacelia to
reproduce by inhibiting pollinator communities.
(3) Actions that would introduce or promote the proliferation of
invasive or successional species plant species into sand dune habitat.
Such activities could include, but are not limited to, vegetation
management that encourages growth of competing native and nonnative
species. These activities could increase competition for space for
growth, sunlight, and nutrients between sand dune phacelia and
nonnative or successional competitors such as European beachgrass and
shore pine, respectively.
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that the Secretary shall not designate as critical habitat any
lands or other geographical areas owned or controlled by the Department
of Defense (DoD), or designated for its use, that are subject to an
integrated natural resources management plan (INRMP) prepared under
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary
determines in writing that such plan provides a benefit to the species
for which critical habitat is proposed for designation. No DoD lands
with a completed INRMP are within the proposed critical habitat
designation.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from designated critical habitat based on
economic impacts, impacts on national security, or any other relevant
impacts. In considering whether to exclude a particular area from the
designation, we identify the benefits of including the area in the
designation, identify the benefits of excluding the area from the
designation, and evaluate whether the benefits of exclusion outweigh
the benefits of inclusion. If the analysis indicates that the benefits
of exclusion outweigh the benefits of inclusion, the Secretary may
exercise discretion to exclude the area only if such exclusion would
not result in the extinction of the species. In making the
determination to exclude a particular area, the statute on its face, as
well as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor. We describe below the process that we undertook for
taking into consideration each category of impacts and our analyses of
the relevant impacts.
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate the impacts that a specific critical habitat
designation may have on restricting or modifying specific land uses or
activities for the benefit of the species and its habitat within the
areas proposed. We then identify which conservation efforts may be the
result of the species being listed under the Act versus those
attributed solely to the designation of critical habitat for this
particular species. The probable economic impact of a proposed critical
habitat designation is analyzed by comparing scenarios both ``with
critical habitat'' and ``without critical habitat.''
The ``without critical habitat'' scenario represents the baseline
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource
users potentially affected by the designation of critical habitat
(e.g., under the Federal listing as well as other Federal, State, and
local regulations). Therefore, the baseline represents the costs of all
efforts attributable to the listing of the species under the Act (i.e.,
conservation of the species and its habitat incurred regardless of
whether critical habitat is designated). The ``with critical habitat''
scenario describes the incremental impacts associated specifically with
the designation of critical habitat for the species. The incremental
conservation efforts and associated impacts would not be expected
without the designation of critical habitat for the species. In other
words, the incremental costs are those attributable solely to the
designation of critical habitat, above and beyond the baseline costs.
These are the costs we use when evaluating the benefits of inclusion
and exclusion of particular areas from the final designation of
critical habitat should we choose to conduct a discretionary 4(b)(2)
exclusion analysis.
For this particular designation, we developed an incremental
effects memorandum (IEM) considering the probable incremental economic
impacts that may result from this proposed designation of critical
habitat. The information contained in our IEM was then used to develop
a screening analysis of the probable effects of the designation of
critical habitat for the sand dune phacelia (Industrial Economics, Inc.
2021). We began by conducting a screening analysis of the proposed
designation of critical habitat in order to focus our analysis on the
key factors that are likely to result in incremental economic impacts.
The purpose of the screening analysis is to filter out particular
geographic areas of critical habitat that are already subject to such
protections and are, therefore, unlikely to incur incremental economic
impacts. In particular, the screening analysis considers baseline costs
(i.e., absent critical habitat designation) and includes any probable
incremental economic impacts where land and water use may already be
subject to conservation plans, land management plans, best management
practices, or regulations that protect the habitat area as a result of
the Federal listing status of the species. Ultimately, the screening
analysis allows us to focus our analysis on evaluating the specific
areas or sectors that may incur probable incremental economic impacts
as a result of the designation. If the proposed critical habitat
designation contains any unoccupied units, the screening analysis
assesses whether those units require additional management or
conservation efforts that may incur incremental economic impacts. This
screening analysis combined with the information contained in our IEM
[[Page 16346]]
constitute what we consider to be our draft economic analysis (DEA) of
the proposed critical habitat designation for the sand dune phacelia;
our DEA is summarized in the narrative below.
Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to
assess the costs and benefits of available regulatory alternatives in
quantitative (to the extent feasible) and qualitative terms. Consistent
with the E.O. regulatory analysis requirements, our effects analysis
under the Act may take into consideration impacts to both directly and
indirectly affected entities, where practicable and reasonable. If
sufficient data are available, we assess to the extent practicable the
probable impacts to both directly and indirectly affected entities. As
part of our screening analysis, we considered the types of economic
activities that are likely to occur within the areas likely affected by
the critical habitat designation.
In our evaluation of the probable incremental economic impacts that
may result from the proposed designation of critical habitat for the
sand dune phacelia, first we identified, in the IEM dated April 14,
2021, probable incremental economic impacts associated with the
following categories of activities: (1) Federal lands management (U.S.
Bureau of Land Management) for recreational use, western snowy plover
management, dune breaching, salt spray meadow restoration, and
management plan updates; (2) bridge work; (3) breaching of water bodies
for flood control purposes; and (4) road development and maintenance.
We considered each industry or category individually. Additionally, we
considered whether their activities have any Federal involvement.
Critical habitat designation generally will not affect activities that
do not have any Federal involvement; under the Act, designation of
critical habitat only affects activities conducted, funded, permitted,
or authorized by Federal agencies. If we list the species, in areas
where the sand dune phacelia is present, Federal agencies would be
required to consult with the Service under section 7 of the Act on
activities they fund, permit, or implement that may affect the species.
If, when we list the species, we also finalize this proposed critical
habitat designation, our consultation would include an evaluation of
measures to avoid the destruction or adverse modification of critical
habitat.
In our IEM, we attempted to clarify the distinction between the
effects that would result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for sand dune
phacelia's critical habitat. Because the designation of critical
habitat for sand dune phacelia was proposed concurrently with the
listing, it has been our experience that it is more difficult to
discern which conservation efforts are attributable to the species
being listed and those which will result solely from the designation of
critical habitat. However, the following specific circumstances in this
case help to inform our evaluation: (1) The essential physical or
biological features identified for critical habitat are the same
features essential for the life requisites of the species, and (2) any
actions that would result in sufficient harm or harassment to
constitute jeopardy to sand dune phacelia would also likely adversely
affect the essential physical or biological features of critical
habitat. The IEM outlines our rationale concerning this limited
distinction between baseline conservation efforts and incremental
impacts of the designation of critical habitat for this species. This
evaluation of the incremental effects has been used as the basis to
evaluate the probable incremental economic impacts of this proposed
designation of critical habitat.
We are proposing to designate approximately 252 ac (102 ha) of
critical habitat for sand dune phacelia across Coos and Curry Counties
in Oregon and Del Norte County in California. The designation is
divided into 13 units, and all units are occupied by sand dune
phacelia. We are not proposing to designate any units of unoccupied
habitat. Approximately 51 percent of the proposed designation is
located on State-owned lands, 46 percent is on privately owned lands, 3
percent is on Federal lands, and less than 1 percent is on county-owned
lands. Any actions that may affect the species or its habitat would
also affect critical habitat, and it is unlikely that any additional
conservation efforts would be recommended to address the adverse
modification standard over and above those recommended as necessary to
avoid jeopardizing the continued existence of sand dune phacelia.
Therefore, only administrative costs are expected with the proposed
critical habitat designation. While this additional analysis will
require time and resources by both the Federal action agency and the
Service, it is believed that, in most circumstances, these costs would
predominantly be administrative in nature and would not be significant.
The probable incremental economic impacts of the sand dune phacelia
critical habitat designation are expected to be limited to additional
administrative effort resulting from an estimated 3 programmatic
consultations, 10 formal consultations, 3 informal consultations, and 7
technical assistance efforts related to section 7 consultation over the
next 10 years. Because all of the proposed critical habitat units are
occupied by the species, incremental economic impacts of critical
habitat designation, other than administrative costs, are unlikely. The
incremental costs for each programmatic, formal, informal, and
technical assistance effort are estimated to be $9,800, $5,300, $2,600,
and $420, respectively. These estimates assume that consultation
actions will occur even in the absence of critical habitat due to the
presence of the sand dune phacelia, and the amount of administrative
effort needed to address the critical habitat during this process is
relatively minor. Applying these unit cost estimates, this analysis
estimates that considering adverse modification of sand dune phacelia
critical habitat during section 7 consultation will result in
incremental costs of no more than $9,300 (2021 dollars) per year, which
is well below the annual administrative burden threshold of $100
million of incremental administrative impacts in a single year.
We are soliciting data and comments from the public on the DEA
discussed above, as well as on all aspects of this proposed rule and
our required determinations. During the development of a final
designation, we will consider the information presented in the DEA and
any additional information on economic impacts we receive during the
public comment period to determine whether any specific areas should be
excluded from the final critical habitat designation under authority of
section 4(b)(2) and our implementing regulations at 50 CFR 17.90. If we
receive credible information regarding the existence of a meaningful
economic or other relevant impact supporting a benefit of exclusion, we
will conduct an exclusion analysis for the relevant area or areas. We
may also exercise the discretion to evaluate any other particular areas
for possible exclusion. Furthermore, when we conduct an exclusion
analysis based on impacts identified by experts in, or sources with
firsthand knowledge about, impacts that are outside the scope of the
Service's expertise, we will give weight to those impacts consistent
with the expert or firsthand information unless we have rebutting
information. We may exclude an area from critical habitat if we
determine that the benefits of excluding
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the area outweigh the benefits of including the area, provided the
exclusion will not result in the extinction of this species.
Consideration of National Security Impacts
Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or
areas that pose potential national-security concerns (e.g., a DoD
installation that is in the process of revising its INRMP for a newly
listed species or a species previously not covered). If a particular
area is not covered under section 4(a)(3)(B)(i), then national-security
or homeland-security concerns are not a factor in the process of
determining what areas meet the definition of ``critical habitat.''
However, the Service must still consider impacts on national security,
including homeland security, on those lands or areas not covered by
section 4(a)(3)(B)(i), because section 4(b)(2) requires the Service to
consider those impacts whenever it designates critical habitat.
Accordingly, if DoD, Department of Homeland Security (DHS), or another
Federal agency has requested exclusion based on an assertion of
national-security or homeland-security concerns, or we have otherwise
identified national-security or homeland-security impacts from
designating particular areas as critical habitat, we generally have
reason to consider excluding those areas.
However, we cannot automatically exclude requested areas. When DoD,
DHS, or another Federal agency requests exclusion from critical habitat
on the basis of national-security or homeland-security impacts, we must
conduct an exclusion analysis if the Federal requester provides
credible information, including a reasonably specific justification of
an incremental impact on national security that would result from the
designation of that specific area as critical habitat. That
justification could include demonstration of probable impacts, such as
impacts to ongoing border-security patrols and surveillance activities,
or a delay in training or facility construction, as a result of
compliance with section 7(a)(2) of the Act. If the agency requesting
the exclusion does not provide us with a reasonably specific
justification, we will contact the agency to recommend that it provide
a specific justification or clarification of its concerns relative to
the probable incremental impact that could result from the designation.
If we conduct an exclusion analysis because the agency provides a
reasonably specific justification or because we decide to exercise the
discretion to conduct an exclusion analysis, we will defer to the
expert judgment of DoD, DHS, or another Federal agency as to: (1)
Whether activities on its lands or waters, or its activities on other
lands or waters, have national-security or homeland-security
implications; (2) the importance of those implications; and (3) the
degree to which the cited implications would be adversely affected in
the absence of an exclusion. In that circumstance, in conducting a
discretionary section 4(b)(2) exclusion analysis, we will give great
weight to national-security and homeland-security concerns in analyzing
the benefits of exclusion.
Under section 4(b)(2) of the Act, we also consider whether a
national-security or homeland-security impact might exist on lands not
owned or managed by DoD or DHS. In preparing this proposal, we have
determined that the lands within the proposed designation of critical
habitat for sand dune phacelia are not owned or managed by DoD or DHS.
Therefore, we anticipate no impact on national security or homeland
security. However, if through the public comment period we receive
credible information regarding impacts on national security or homeland
security from designating particular areas as critical habitat, then as
part of developing the final designation of critical habitat, we will
conduct a discretionary exclusion analysis to determine whether to
exclude those areas under authority of section 4(b)(2) and our
implementing regulations at 50 CFR 17.90.
Consideration of Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security discussed above. Other relevant impacts may include, but are
not limited to, impacts to Tribes, States, local governments, public
health and safety, community interests, the environment (such as
increased risk of wildfire or pest and invasive species management),
Federal lands, and conservation plans, agreements, or partnerships. To
identify other relevant impacts that may affect the exclusion analysis,
we consider a number of factors, including whether there are permitted
conservation plans covering the species in the area--such as HCPs, safe
harbor agreements, or candidate conservation agreements with
assurances--or whether there are non-permitted conservation agreements
and partnerships that may be impaired by designation of, or exclusion
from, critical habitat. In addition, we look at whether Tribal
conservation plans or partnerships, Tribal resources, or government-to-
government relationships of the United States with Tribal entities may
be affected by the designation. We also consider any State, local,
public-health, community-interest, environmental, or social impacts
that might occur because of the designation.
We have not identified any areas to consider for exclusion from
critical habitat based on other relevant impacts. In preparing this
proposal, we have determined that there are currently no permitted
conservation plans or other management plans for sand dune phacelia.
There are no partnerships, management, or protection afforded by
cooperative management efforts sufficient to provide for the
conservation of the species. There are no areas for which exclusion
would result in conservation, or in the continuation, strengthening, or
encouragement of partnerships.
However, during the development of a final designation, we will
consider all information currently available or received during the
public comment period. If we receive credible information regarding the
existence of a meaningful impact supporting a benefit of excluding any
areas, we will undertake an exclusion analysis and determine whether
those areas should be excluded from the final critical habitat
designation under the authority of section 4(b)(2) and our implementing
regulations at 50 CFR 17.90. We may also exercise the discretion to
undertake exclusion analyses for other areas as well, and we will
describe all of our exclusion analyses as part of a final critical
habitat determination.
Summary of Exclusions Considered Under Section 4(b)(2) of the Act
At this time, we are not considering any exclusions from the
proposed designation based on economic impacts, national security
impacts, or other relevant impacts--such as partnerships, management,
or protection afforded by cooperative management efforts--under section
4(b)(2) of the Act. In preparing this proposal, we have determined that
no HCPs or other management plans for sand dune phacelia currently
exist, and the proposed designation does not include any Tribal lands
or trust resources. Therefore, we anticipate no impact on Tribal lands,
partnerships, or HCPs from this proposed critical habitat designation
and thus, as described above, we are not considering excluding any
particular areas on the basis of the presence of conservation
agreements or impacts to trust resources.
[[Page 16348]]
During the development of a final designation, we will consider any
additional information received through the public comment period to
determine whether any specific areas should be excluded from the final
critical habitat designation under authority of section 4(b)(2) and our
implementing regulations at 50 CFR 17.90.
Required Determinations
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this rule is not
significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this proposed rule in a manner
consistent with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine whether potential
economic impacts to these small entities are significant, we considered
the types of activities that might trigger regulatory impacts under
this designation as well as types of project modifications that may
result. In general, the term ``significant economic impact'' is meant
to apply to a typical small business firm's business operations.
Under the RFA, as amended, and as understood in light of recent
court decisions, Federal agencies are required to evaluate the
potential incremental impacts of rulemaking on those entities directly
regulated by the rulemaking itself; in other words, the RFA does not
require agencies to evaluate the potential impacts to indirectly
regulated entities. The regulatory mechanism through which critical
habitat protections are realized is section 7 of the Act, which
requires Federal agencies, in consultation with the Service, to ensure
that any action authorized, funded, or carried out by the agency is not
likely to destroy or adversely modify critical habitat. Therefore,
under section 7, only Federal action agencies are directly subject to
the specific regulatory requirement (avoiding destruction and adverse
modification) imposed by critical habitat designation. Consequently, it
is our position that only Federal action agencies would be directly
regulated if we adopt the proposed critical habitat designation. The
RFA does not require evaluation of the potential impacts to entities
not directly regulated. Moreover, Federal agencies are not small
entities. Therefore, because no small entities would be directly
regulated by this rulemaking, the Service certifies that, if made final
as proposed, the proposed critical habitat designation will not have a
significant economic impact on a substantial number of small entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if made final, the proposed
critical habitat designation would not have a significant economic
impact on a substantial number of small business entities. Therefore,
an initial regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. In our economic analysis, we did not find that this
proposed critical habitat designation would significantly affect energy
supplies, distribution, or use. We are not aware of any energy-related
activities or facilities within the boundaries of the proposed critical
habitat designation. Therefore, this action is not a significant energy
action, and no Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following finding:
(1) This proposed rule would not produce a Federal mandate. In
general,
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a Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and Tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or Tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule would significantly or
uniquely affect small governments because it will not produce a Federal
mandate of $100 million or greater in any year, that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The designation of critical habitat imposes no obligations on
State or local governments. Therefore, a Small Government Agency Plan
is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for sand dune phacelia in a takings implications assessment.
The Act does not authorize the Service to regulate private actions on
private lands or confiscate private property as a result of critical
habitat designation. Designation of critical habitat does not affect
land ownership, or establish any closures, or restrictions on use of or
access to the designated areas. Furthermore, the designation of
critical habitat does not affect landowner actions that do not require
Federal funding or permits, nor does it preclude development of habitat
conservation programs or issuance of incidental take permits to permit
actions that do require Federal funding or permits to go forward.
However, Federal agencies are prohibited from carrying out, funding, or
authorizing actions that would destroy or adversely modify critical
habitat. A takings implications assessment has been completed for the
proposed designation of critical habitat for sand dune phacelia and it
concludes that, if adopted, this designation of critical habitat does
not pose significant takings implications for lands within or affected
by the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this proposed rule does
not have significant Federalism effects. A federalism summary impact
statement is not required. In keeping with Department of the Interior
and Department of Commerce policy, we requested information from, and
coordinated development of this proposed critical habitat designation
with, appropriate State resource agencies. From a federalism
perspective, the designation of critical habitat directly affects only
the responsibilities of Federal agencies. The Act imposes no other
duties with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, the proposed rule does
not have substantial direct effects either on the States, or on the
relationship between the national government and the States, or on the
distribution of powers and responsibilities among the various levels of
government. The proposed designation may have some benefit to these
governments because the areas that contain the features essential to
the conservation of the species are more clearly defined, and the
physical or biological features of the habitat necessary for the
conservation of the species are specifically identified. This
information does not alter where and what federally sponsored
activities may occur. However, it may assist State and local
governments in long-range planning because they no longer have to wait
for case-by-case section 7 consultations to occur.
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critica
[…truncated; see source link]Indexed from Federal Register on March 22, 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.