Rule2022-14291
Endangered and Threatened Wildlife and Plants; Reclassification of Smooth Coneflower From Endangered To Threatened With a Section 4(d) Rule
Primary source
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Published
July 6, 2022
Effective
August 5, 2022
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), reclassify smooth coneflower (Echinacea laevigata) from endangered to threatened ("downlist") under the Endangered Species Act of 1973, as amended (Act), due to improvements in the species' overall status since the original listing in 1992. This action is based on a thorough review of the best available scientific and commercial information, which indicates that smooth coneflower is not currently in danger of extinction throughout all or a significant portion of its range, but it is still likely to become so in the foreseeable future. We are also finalizing a rule under section 4(d) of the Act that provides for the conservation of smooth coneflower.
Full Text
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[Federal Register Volume 87, Number 128 (Wednesday, July 6, 2022)]
[Rules and Regulations]
[Pages 40100-40115]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-14291]
[[Page 40100]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2020-0063; FF09E22000 FXES1113090FEDR 223]
RIN 1018-BD83
Endangered and Threatened Wildlife and Plants; Reclassification
of Smooth Coneflower From Endangered To Threatened With a Section 4(d)
Rule
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), reclassify
smooth coneflower (Echinacea laevigata) from endangered to threatened
(``downlist'') under the Endangered Species Act of 1973, as amended
(Act), due to improvements in the species' overall status since the
original listing in 1992. This action is based on a thorough review of
the best available scientific and commercial information, which
indicates that smooth coneflower is not currently in danger of
extinction throughout all or a significant portion of its range, but it
is still likely to become so in the foreseeable future. We are also
finalizing a rule under section 4(d) of the Act that provides for the
conservation of smooth coneflower.
DATES: This rule is effective August 5, 2022.
ADDRESSES: Public comments and materials we received, as well as
supporting documentation we used in preparing this rule, are available
for public inspection at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-
R4-ES-2020-0063.
FOR FURTHER INFORMATION CONTACT: Pete Benjamin, Field Supervisor, U.S.
Fish and Wildlife Service, Raleigh Ecological Services Field Office,
551-F Pylon Drive, Raleigh, NC 27606; telephone (919) 856-4520.
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, a species may warrant
reclassification from endangered to threatened if it no longer meets
the definition of endangered (in danger of extinction throughout all or
a significant portion of its range). Smooth coneflower is listed as
endangered, and we are reclassifying smooth coneflower as threatened
(i.e., ``downlisting'' the species) because we have determined it is
not currently in danger of extinction. Reclassifying a species under
the Act can only be accomplished by issuing a rule through the
Administrative Procedure Act rulemaking process.
What this document does. This rule reclassifies smooth coneflower
from endangered to threatened on the Federal List of Endangered and
Threatened Plants (List), with a rule issued under section 4(d) of the
Act, based on the species' current status, which has been improved
through implementation of conservation actions.
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 may reclassify a species if the best available
commercial and scientific data indicate the species no longer meets the
applicable definition in the Act. We have determined that smooth
coneflower is no longer in danger of extinction and, therefore, does
not meet the Act's definition of an endangered species, but the species
does meet the Act's definition of a threatened species because there
are not enough permanently protected or managed populations to
ameliorate ongoing habitat loss, degradation, and fragmentation from
development. Existing management and regulatory mechanisms are not
sufficient to protect the species from these threats such that it is
not in danger of extinction within the foreseeable future.
Peer review and public comment. During the proposed rule stage, we
sought the expert opinions of four appropriate specialists regarding
the proposed reclassification rule. We received responses from two peer
reviewers, which informed our determination. Information we received
from peer review is incorporated into this final rule. We also
considered all comments and information we received from the public
during the comment period, but none of these changed our determination.
Previous Federal Actions
Please refer to the proposed downlisting rule for smooth coneflower
published on June 24, 2021 (86 FR 33159), for a detailed description of
previous Federal actions concerning this species.
Summary of Changes From the Proposed Rule
In preparing this final rule, we reviewed and fully considered all
comments we received during the comment period from the peer reviewers
and the public on the proposed rule to reclassify smooth coneflower.
Minor, nonsubstantive changes and corrections are made throughout this
document in response to comments. However, the information we received
during the peer review and public comment period on the proposed rule
did not change our analysis, rationales, or determination for either
reclassifying the smooth coneflower as a threatened species under the
Act or the 4(d) rule for the species.
I. Final Reclassification Determination
Background
A thorough review of the taxonomy, life history, ecology, and
overall viability of smooth coneflower is presented in the recovery
plan (Service 1995, entire), the 5-year review (Service 2011, entire),
and the proposed downlisting rule (86 FR 33159; June 24, 2021). Smooth
coneflower is a perennial herb in the aster family (Asteraceae). It was
first described as Brauneria laevigata by Boynton and Beadle in 1903,
from material collected in South Carolina (SC) in 1888. It was
transferred to the genus Echinacea in 1929 (Small 1933, p. 1421;
McGregor 1968, p. 120). Smooth coneflower grows up to 1.5 meters (59
inches (in)) tall from a vertical root stock; stems are smooth, with
few leaves. Flower heads are usually solitary and are composed of ray
flowers and disk flowers. The ray flowers (petal-like structures on
composite flower heads) are light pink to purplish, strongly drooping,
and 5 to 8 centimeters (cm; 1.9 to 3.1 in) long. Disk flowers (tiny
tubular flowers in the central portion of composite flower head) are
about 5 millimeters (mm) (0.2 in) long. Flowering occurs from May
through July, and fruits develop from late June to September (Gaddy
1991, p. 18). Sexual reproduction results in a gray-brown, oblong-
prismatic achene (dry, one-seeded fruit). Asexual reproduction in the
form of short clonal rhizomes make new rosettes in both
[[Page 40101]]
garden and wild settings (Kunz 2018, pers. comm.). Smooth coneflower is
dependent on insect pollinators for cross pollination. While skippers,
butterflies, and wasps are frequent floral visitors, bees are believed
to be the most effective pollinators (Gadd 2006, p. 15; Collins and
Fore 2009, pp. 452-454).
In this rule, we follow guidance for defining element occurrences
(EOs) and populations described by NatureServe (2002, pp. 10-11;
NatureServe 2004, pp. 6, 14). We define an EO as any current (or
historical) location where smooth coneflower occurs (or occurred),
regardless of the spatial relationship with other EOs. We define a
population as either a stand-alone EO isolated by distance of
unsuitable habitat (separated from other EOs by 2 kilometers (km) (1.2
miles (mi)) or more), or as a principal EO. A principal EO is two or
more EOs located less than or equal to 2 km (1.2 mi) from each other,
with suitable habitat in between them. For the purposes of evaluating
the recovery of this species, it is most appropriate to consider
populations rather than individual EOs.
At the time of listing in 1992, smooth coneflower had 21 extant
populations (57 FR 46340; October 8, 1992). When the recovery plan was
written in 1995, there were 24 known populations rangewide, with an
additional 3 populations in SC that were considered of cultivated
origin at that time but are now believed to be natural populations, for
a total of 27 populations (Service 1995, p. 2). New smooth coneflower
occurrences have been discovered since the time of listing. Current
State Natural Heritage Program database records document 44 extant
populations of smooth coneflower (table 1).
Table 1--Total Number of Extant Populations of Smooth Coneflower That
Occur in Each State Within the Range of the Species
[Georgia Department of Natural Resources (GADNR) 2019, unpaginated;
North Carolina Natural Heritage Program (NCNHP) 2019, unpaginated; South
Carolina Heritage Trust Program (SCHTP) 2019, unpaginated; Virginia
Division of Natural Heritage (VADNH) 2018, unpaginated; White 2018, p.
6]
------------------------------------------------------------------------
Number of
State extant
populations
------------------------------------------------------------------------
Virginia (VA)........................................... 15
North Carolina (NC)..................................... 6
South Carolina (SC)..................................... 12
Georgia (GA)............................................ 11
---------------
Totals.............................................. 44
------------------------------------------------------------------------
At the time of listing in 1992, all of the known smooth coneflower
populations occurred in the piedmont or mountain physiographic
provinces of GA, SC, NC, and VA. Since listing, new populations have
been found in the inner coastal plain/sandhills region of SC (White
2018, p. 4) and the coastal plain of GA (Moffett 2018, pers. comm.).
Smooth coneflower is typically found in open woods, glades, cedar
barrens, roadsides, clear cuts, dry limestone bluffs, and power line
rights-of-way (ROWs). The species is usually found on magnesium- and
calcium-rich soils associated with amphibolite, dolomite, or limestone
(in VA); gabbro (in NC and VA); diabase (in NC and SC); marble, sandy
loams, chert, and amphibolites (in SC and GA); and shallow soils with
minor bedrock exposures (in GA) (Service 1995, pp. 2-3; White 2018, p.
4; GADNR 2019, unpaginated). The healthiest smooth coneflower
populations are managed with prescribed fire or mechanical thinning,
which provides smooth coneflower plants abundant sunlight and little
competition from other plant species (Gaddy 1991, p. 1).
Land managers and biologists have routinely monitored smooth
coneflower populations since before the species was listed in 1992.
Monitoring at most populations usually involves a flowering stem count,
while each rosette of leaves is counted at some sites. Flowering stem
counts are generally the most common survey method because they require
less time and biologists generally agree that plants produce no more
than one flowering stem per growing season, making this method a
conservative count of how many plants actually exist at a site. Basal
rosettes and plants in vegetative state (non-flowering) can be very
hard to find and count in dense herbaceous vegetation (NC Plant
Conservation Program (NCPCP) 2018, unpaginated; White 2018, entire).
The species displays a relatively high level of genetic diversity
based on analyses across the range of populations (Peters et al. 2009,
pp. 12-13). There is also significant population genetic
differentiation and a majority of the genetic variance is attributed to
variation within populations, suggesting that populations may be
adapting to local environments (Apsit and Dixon 2001, entire). Because
this genetic variation exists, all populations should be maintained to
conserve genetic diversity since each population contains only a subset
of the total genetic variation. Regional population differentiation may
be important in the selection of material to establish new populations,
which suggests that, for greatest success, reintroduction projects use
local source material (Apsit and Dixon 2001, p. 76).
Recovery
Section 4(f) of the Act directs us to develop and implement
recovery plans for the conservation and survival of endangered and
threatened species, unless we determine that such a plan will not
promote the conservation of the species. Under section 4(f)(1)(B)(ii),
recovery plans must, to the maximum extent practicable, include
objective, measurable criteria which, when met, would result in a
determination, in accordance with the provisions of section 4 of the
Act, that the species be removed from the List.
Recovery plans provide a roadmap for us and our partners on methods
of enhancing conservation and minimizing threats to listed species, as
well as measurable criteria against which to evaluate progress towards
recovery and assess the species' likely future condition. However, they
are not regulatory documents and determinations with respect to the
species' status must be made consistent with section 4(a)(1) of the
Act. A decision to revise the status of a species, or to delist a
species, is ultimately based on an analysis of the best scientific and
commercial data available to determine
[[Page 40102]]
whether a species is no longer an endangered species or a threatened
species, regardless of whether that information differs from the
recovery plan.
There are many paths to accomplishing recovery of a species, and
recovery may be achieved without all of the criteria in a recovery plan
being fully met. For example, one or more criteria may be exceeded
while other criteria may not yet be accomplished. In that instance, we
may determine that the threats are minimized sufficiently, and that the
species is robust enough that it no longer meets the definition of an
endangered species or a threatened species. In other cases, we may
discover new recovery opportunities after having finalized the recovery
plan. Parties seeking to conserve the species may use these
opportunities instead of methods identified in the recovery plan.
Likewise, we may learn new information about the species after we
finalize the recovery plan. The new information may change the extent
to which existing criteria are appropriate for identifying recovery of
the species. The recovery of a species is a dynamic process requiring
adaptive management that may, or may not, align with all criteria
provided in a recovery plan.
Recovery Criteria
The Smooth Coneflower Recovery Plan was approved by the Service on
April 18, 1995 (Service 1995, entire). It includes recovery criteria
intended to indicate when threats to the species have been addressed to
the point the species may no longer meet the definition of an
endangered species or threatened species and describes actions or tasks
necessary to achieve those criteria.
The recovery plan identifies five downlisting criteria for smooth
coneflower (Service 1995, p. 12):
1. Twelve (12) geographically distinct, self-sustaining populations
are protected across the species' range, including populations in at
least two counties in VA, two counties in NC, two counties in SC, and
one county in GA;
2. At least nine of these populations must be in areas within the
species' native ecosystem (not in gardens or similar artificial
settings) that are in permanent conservation ownership and management;
3. Managers have been designated for each protected population;
4. Management plans have been developed and implemented for each
protected population; and
5. Populations have been maintained at stable or increasing levels
for 5 years.
The recovery plan also identifies the following five delisting
criteria for smooth coneflower (Service 1995, p. 12):
1. Fifteen (15) geographically distinct, self-sustaining
populations are protected across the species' range, including
populations in at least two counties in VA, two counties in NC, two
counties in SC, and one county in GA;
2. At least nine of these populations must be in areas within the
species' native ecosystem (not in gardens or similar artificial
settings) that are in permanent conservation ownership and management;
3. Managers have been designated for each protected population;
4. Management plans have been developed and implemented for each
protected population; and
5. Populations have been maintained at stable or increasing levels
for 10 years.
Downlisting/Delisting Criteria 1 and 2 (Twelve (12) or Fifteen (15)
Protected Self-Sustaining Populations in Native Ecosystem)
Both criteria 1 and 2 for downlisting and delisting have been met.
We currently know of 44 extant populations throughout the species'
range. Of those 44, 16 populations ranked with excellent to good
viability are found in areas where the habitat is under protective
status (like a National Forest). As of 2019, 33 smooth coneflower
populations are either on Federal lands or are in conservation
ownership (9 in GA, 5 in NC, 12 in SC, and 7 in VA), 16 of which are
ranked A (excellent viability; see tables 2 and 3, below), AB
(excellent/good viability), or B (good viability) by their respective
State Natural Heritage Programs (4 in GA, 3 in NC, 5 in SC, and 4 in
VA). These populations are considered protected because they occur on
several National Forests managed by the U.S. Forest Service (USFS), as
well as lands owned and managed by State agencies, The Nature
Conservancy (TNC), U.S. Army Corps of Engineers (USACE), U.S.
Department of Energy (USDOE), and U.S. Department of Defense (DOD).
Management plans in existence for many of these populations are
detailed below.
Table 2--State Distribution, Heritage Program Rank, Ownership, and Availability of Management Plan for the
Highly Resilient, Protected Populations
----------------------------------------------------------------------------------------------------------------
State Population name Heritage rank * Ownership Management plan?
----------------------------------------------------------------------------------------------------------------
GA............................ GA-A AB Federal......... yes.
GA............................ GA-B B Federal......... yes.
GA............................ GA-C B Federal......... yes.
GA............................ GA-D B Federal......... yes.
NC............................ NC-A A Federal, State.. no.
NC............................ NC-B A State........... yes.
NC............................ NC-C B Federal......... no.
SC............................ SC-A AB Federal......... yes.
SC............................ SC-B B Federal......... yes.
SC............................ SC-C A Federal, State.. yes.
SC............................ SC-D A Federal......... yes.
SC............................ SC-E AB Federal......... yes.
VA............................ VA-A A State........... yes.
VA............................ VA-B A Private......... yes.
VA............................ VA-C AB State........... no.
VA............................ VA-D AB State........... yes.
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* Heritage Ranks: A = excellent viability; AB = excellent/good viability; B = good viability.
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With regard to the requirement in criterion 1 that populations be
self-sustaining, we evaluated the resiliency of each population by
looking at the ranks as assigned by the State Natural Heritage
Programs. These 16 protected populations are ranked either A, AB, or B
(six are ranked A, five are ranked AB, and five are ranked B (see
tables 2 and 3)). These 16 highly resilient populations (i.e., those
that have good to excellent viability scores (Table 3)) are scattered
across the range of the species, including one county in GA (Stephens),
two counties in NC (Durham and Granville), two counties in SC (Barnwell
and Oconee), and three counties in VA (Franklin, Halifax, and
Montgomery). These populations span mountain, piedmont, and coastal
plain physiographic provinces.
Table 3--Smooth Coneflower Ranking Criteria
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Size and type of
Heritage rank Viability Number of plants habitat Management regime
----------------------------------------------------------------------------------------------------------------
A...................... Excellent.............. >1,000; flowering >5 acres (>2 open (disturbed)
annually. hectares); open from periodic
glade or prairie fires, optimal
remnant. soil conditions.
B...................... Good................... 100-1,000; most 1-5 acres; open mostly open by
flowering annually. glade or prairie periodic fires or
remnant. other disturbance.
C...................... Fair................... 10-100; 50% or fewer any size glade or limited.
flowering annually. prairie remnant;
or isolated
roadside or
utility ROW with
remnant glade or
prairie flora.
D...................... Poor................... <10; may not fewer remnant glades or limited.
flower annually. isolated ROWs.
----------------------------------------------------------------------------------------------------------------
All of these populations occur in the species' natural ecosystem,
which includes habitats such as open woodlands, glades, cedar barrens,
and other habitat that is usually (but not always) found on magnesium-
and calcium-rich soil. For many of the larger A- and B-ranked
populations, the site ranks have not changed significantly over recent
years.
The remaining 28 extant populations are ranked C (fair viability),
D (poor viability), or E (extant, but their viability has not been
assessed). A rank of X is given to sites considered to be extirpated,
where evidence indicates that the species no longer exists in that
location. A rank of H is given to sites considered to be historical,
where recent field information verifying the continued existence of the
population is lacking. We estimated that C-, D-, and E-ranked
populations have low resiliency, and sites ranked H or X were not
evaluated for resiliency because plants have not been found at those
sites in recent years.
Downlisting/Delisting Criterion 3 (Managers Have Been Designated for
Each Protected Population)
We verified ownership and management status of each of the 16
highly resilient, protected populations on Federal, State, and private
conservation lands, to ensure that a land manager responsible for
overseeing the management of smooth coneflower has been assigned. The
four highly resilient populations in GA are managed by the USFS
(Chattahoochee-Oconee National Forest) with assistance from the Atlanta
Botanical Garden, State Botanical Garden of Georgia, and Georgia
Department of Natural Resources (GADNR). The three highly resilient
populations in NC are managed by the North Carolina Department of
Agriculture and Consumer Services (NCDACS) Research Stations Division,
North Carolina Plant Conservation Program (NCPCP), USACE, and NC
Botanical Garden (NCBG). In SC, most of the highly resilient
populations occur on the Sumter National Forest, and four of the five
highly resilient populations are managed by the Sumter National Forest,
with one of those sites being co-owned and managed by South Carolina
Heritage Trust Program (SCHTP) as a Heritage Trust Preserve. The other
highly resilient population, at the Savannah River Site, is owned by
the USDOE and managed by the USFS. In VA, the four highly resilient
populations are managed by the Virginia Division of Natural Heritage
(VADNH), USFS (George Washington National Forest), and TNC.
Site managers have been identified for all 16 highly resilient
populations identified under criteria 1 and 2 above; therefore, we
consider this criterion to have been met.
Downlisting/Delisting Criterion 4 (Management Plans Implemented)
Because smooth coneflower requires early to mid-successional
habitat, all highly resilient populations have received and will
require some form of management in perpetuity to help maintain habitat
in the right balance so that populations can thrive. Management
techniques include the use of prescribed fire, well-timed mowing,
mechanical clearing (including the use of chain saws to cut trees), and
herbicides (selectively applied to cut stumps to prevent regrowth). All
of these management actions have been implemented separately or in
combination to sustain suitable habitat for smooth coneflower. Of the
16 highly resilient populations considered in criteria 1 and 2, 13 of
them can be considered to be included in management plans. However,
these plans vary in scope and level of specificity toward smooth
coneflower, and most plans are outdated. Only six of the plans are
specific to the management of smooth coneflower, while the others
address the overall management of an entire site but include some
actions that may be beneficial to smooth coneflower. Of the six plans
that are specific to the management of smooth coneflower, four were
developed in the mid-1990s, and two were developed in the early 2000s.
In the past 20 years, we have learned a lot about how to best manage
the species with fire, as well as how to manage for invasive species.
Many of these management practices (e.g., conducting prescribed burns
or mechanical clearing every 3 to 5 years, or controlling invasive
species) need to be incorporated into older management plans.
Management plans exist for three of the four highly resilient
smooth coneflower populations in VA, although new information about
fire intervals could improve management of several sites (e.g., VA-A,
VA-B, and VA-D) (Heffernan et al. 2002, pp. 1-2; SanJule 2007, p. 5;
USDA Forest Service 2014, entire). In NC, the site of the largest
smooth coneflower population (NC-B) has been actively managed using
prescribed fire, mowing, and other mechanical means as recommended by
species experts (Barnett-Lawrence 1994, pp. 18-20, appendix 10;
Barnett-Lawrence 1995, pp. 18-19; NCNHP 1996, unpaginated), but two of
the
[[Page 40104]]
highly resilient populations lack management plans altogether. In SC,
all highly resilient populations occurring on the Sumter National
Forest in SC (SC-A, SC-B, SC-C, and SC-D) are managed by prescribed
fire and mechanical clearing. While the Sumter National Forest Revised
Land and Resource Management Plan is from 2004, this plan directs the
USFS to maintain or restore at least eight self-sustaining populations
of smooth coneflower (USDA Forest Service 2004, pp. 2-9; Roecker 2001,
entire), a practice that is in effect today. In GA, the USFS adequately
uses prescribed fire, mechanical clearing, and herbicide application to
maintain open, glade-like woodland habitat for smooth coneflower and
associated species at highly resilient populations (GA-A, GA-B, GA-C,
and GA-D).
In summary, 13 of the 16 highly resilient (A-, AB-, and B-ranked)
smooth coneflower populations are included in management plans, but
only 6 of them specifically address smooth coneflower management. These
plans vary in level of detail, scope, and time commitment, and several
need to be updated with improved fire management and invasive species
management practices. We find that the implementation of regular,
dedicated management for the highly resilient populations is the reason
these smooth coneflower populations are large, healthy, and viable, and
contribute toward the recovery of the species. However, the Service
considers criterion 4 for smooth coneflower to have been only partially
met because not all populations have management plans, and several of
the existing plans are out of date. The Service has developed a
template management plan that land managers can use as a guide when
developing or updating rare species management plans, particularly
those that focus on smooth coneflower management, and we will be
working toward getting all plans established and updated as part of our
ongoing recovery work.
Downlisting/Delisting Criterion 5 (Stable or Increasing Populations for
5 or 10 Years)
Land managers conduct site visits to their respective smooth
coneflower populations on a regular basis to assess population size and
health and to determine what management actions, if any, are needed.
Monitoring generally involves a flowering stem count, which is a
conservative count of how many plants exist at a site (NCPCP 2018,
unpaginated; White 2018, entire).
Virginia smooth coneflower populations occur on USFS, TNC, and
Virginia Department of Conservation and Recreation (VADCR) lands. These
sites have been monitored by their respective land managers and
researchers over the last 30 years. Because several of the smooth
coneflower preserves in VA are large in size, a complete census has not
been conducted every year, although the sites have been monitored
during regular management activities. All four highly resilient
populations in VA are considered stable over the 30+ years they have
been monitored.
Land managers in NC have collected monitoring data on their smooth
coneflower populations for decades. Of the high resiliency smooth
coneflower populations in North Carolina, one has been increasing over
the 14-year monitoring period, and two are stable over the 31-year
monitoring period (NCPCP 2018, unpaginated).
South Carolina sites on the Sumter National Forest and a State-
owned Heritage Preserve have been monitored since 1990 (White 2018, p.
6, table 1). A recent status survey of all of the smooth coneflower
sites in SC determined that since 2006, trends indicated that for the
most resilient SC smooth coneflower populations, four appear to be
increasing in size, and one is considered stable, for at least the past
14 years.
All four of the highly resilient smooth coneflower populations in
GA occur on the Chattahoochee-Oconee National Forest in northeastern
GA. Biologists with the USFS, State Botanical Garden of Georgia,
Atlanta Botanical Garden, GADNR, and Georgia Plant Conservation
Alliance have visited these populations on a regular basis since the
species was proposed for listing in 1991 and a Statewide status survey
was conducted in 2000 (Sullivan 2000, entire). Monitoring data are
intermittent, but the four highly resilient populations have been
considered stable for the past 20 years since the Statewide status
survey (Suiter 2020, pers. comm.).
Without more detailed data, it is difficult to determine specific
trends, but based on our analysis of monitoring data and recent
observations, we conclude that all of the 16 A-, AB-, and B- ranked
(good to excellent resiliency) protected populations have been stable
or increasing for more than 10 years; therefore, we consider this
recovery criterion to have been met.
Summary
The implementation of recovery actions for smooth coneflower has
significantly reduced the risk of extinction for the species. As
indicated above, many smooth coneflower populations are protected on
public (Federal and State) and private lands, such as TNC preserves in
VA. The most highly resilient smooth coneflower populations (i.e.,
those considered contributing to species' recovery) are considered
stable or increasing. Current information indicates that smooth
coneflower is more abundant, and its range is somewhat larger, than
when the species was listed. However, management plans for all
protected populations are lacking, as only six specifically focus on
management for smooth coneflower. Many of the existing management plans
are out of date, from the 1990s and early 2000s, or are not being
currently implemented.
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species is an endangered species or a threatened species. The
Act defines an ``endangered species'' as a species that is in danger of
extinction throughout all or a significant portion of its range, and a
``threatened species'' as a species that is likely to become an
endangered species within the foreseeable future throughout all or a
significant portion of its range. The Act requires that we determine
whether any species is an endangered species or a threatened species
because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects. We consider these same five
factors in reclassifying a species from endangered to threatened (50
CFR 424.11(c)). Even though we are not delisting the species at this
time, we also consider the risk to the species if it were not listed
under the Act to better understand the species' future without the
protections of the Act.
[[Page 40105]]
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
Services 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.
Summary of Biological Condition and Threats
When we published the final rule to list smooth coneflower as an
endangered species (57 FR 46340; October 8, 1992), the identified
threats (factors) were the absence of natural disturbance (fire and/or
grazing), highway construction and improvement, gas line installation,
and residential and industrial development (Factor A); collecting
(Factor B); beetle damage (Factor C); inadequacy of existing State
regulatory mechanisms (Factor D); and low genetic variability,
herbicide use, and possible encroachment of exotic species (Factor E).
The following analysis evaluates these previously identified
threats, any other threats currently facing the species, and any other
threats that are reasonably likely to affect the species in the
foreseeable future, including cumulatively or synergistically.
Habitat Degradation or Loss Due To Development and Absence of Natural
Disturbance
Smooth coneflower plants require open, sunny conditions to survive.
Without regular disturbance such as fire, woody shrubs and trees create
a dense canopy that prevents sunlight from reaching the forest floor
where this herbaceous species occurs. Smooth coneflower is intolerant
of dense shade and tends to die out after a few years of shady
conditions.
Smooth coneflower occurrences on private land are vulnerable to
habitat loss due to degradation, which results from fire suppression or
the absence of other disturbances that maintain the habitat in an open
state. For example, in Rockingham County, NC, a small smooth coneflower
population occurred on private land in an open woodland between a
highway and a railroad track. The lack of management or fire resulted
in the site becoming overgrown, and no plants have been observed there
in recent years. To encourage smooth coneflower growth, the site needs
fire or mechanical disturbance in order to remove woody vegetation and
open the forest floor to sunlight (NCNHP 2019, unpaginated).
Development projects, such as residential and commercial
construction and highway and utility construction and maintenance, pose
a threat to smooth coneflower populations by clearing areas where the
species occurs, thereby destroying populations. Further, development in
close proximity to smooth coneflower populations may preclude the
ability to use fire as a management tool at nearby protected
populations because of the threat of fires escaping the management area
and objections to smoke blowing into developed areas. For example, a
smooth coneflower population on a small parcel of USFS land in
Habersham County, GA, has declined over recent years due the difficulty
in managing fire on a parcel surrounded by private property. The lack
of management has resulted in the growth of woody plants that have
shaded smooth coneflower plants and resulted in this population's
decline (Radcliffe 2019, pers. comm.). As residential and commercial
development continue to occur in the suburbs of Durham, NC, it will
become harder to manage some of the adjacent smooth coneflower sites
with fire (Starke 2019, pers. comm.).
While we are not aware of any smooth coneflower populations that
have been destroyed due to residential or commercial development since
the species was listed, this threat remains a concern. Recently, a new
subpopulation of smooth coneflower was discovered on a property in
Durham County, NC, that is slated for development. If a rare plant
survey had not been conducted and these plants discovered, they would
have been destroyed by the development of the site (Starke 2019, pers.
comm.). There are likely additional undiscovered populations of smooth
coneflower that are subject to destruction.
Development pressure based on urbanization predictions from the
SLEUTH urban growth model indicate that all of the NC counties, more
than half of the SC counties, and both of the northeastern GA counties
of occurrence for smooth coneflower will exhibit high (greater than 90
percent) growth trends over the next 20 to 30 years as part of the
``southern megalopolis,'' or giant urban sprawl area in the Southeast
(Terando et al. 2014, p. 3; Databasin 2014, entire). Smooth coneflower
populations that occur on private lands in these counties will continue
to face threats from development and land conversion in the foreseeable
future. Most of the VA counties of occurrence are outside the
boundaries of the
[[Page 40106]]
southern megalopolis and the VA urban crescent in the eastern part of
the State (Databasin 2014, entire).
Smooth coneflower occurs on roadsides and utility ROWs throughout
the range of the species. These populations are vulnerable to
management practices that could negatively impact or destroy them.
Herbicides, which are typically harmful to all plants, are often used
to manage vegetation along road shoulders and in utility ROWs.
Herbicide damage can be temporary or permanent depending on the
herbicide used and the rate of application. Although dormant season
(winter) mowing is generally not problematic for disturbance-dependent
species, as it helps reduce competition and maintain sites in an open
condition, any mowing that occurs during the growing season but before
plants produce mature seeds is considered harmful because it arrests
seed development and reproductive potential for that year. Smooth
coneflower plants growing on a utility ROW in Granville County, NC,
were accidentally sprayed with herbicides, killing many plants in this
population (NCNHP 2019, unpaginated). Herbicide damage to smooth
coneflowers has also occurred at the Savannah River Site in SC, but the
population was able to recover (White 2018, Appendix 3, entire).
Roadside and utility ROW occurrences are difficult to manage in an
early successional state without harming smooth coneflower plants. For
example, woody species encroachment has caused the decline of some
smooth coneflower sites that occur in ROWs in Durham County, NC. In
some cases, it is possible to manage lands adjacent to ROW populations
by, for example, removing woody species to create suitable habitat for
the species, encouraging the plant to gradually occupy habitat away
from the ROW; however, adjacent, protected land does not always exist
(Stark 2019, pers. comm.). In the status survey of smooth coneflower
populations in SC, (White 2018, appendix 3, entire) indicates that many
populations still face competition by woody species, the presence of
invasive species, and road ROW maintenance.
The protection of some smooth coneflower populations has been
accomplished through active management and reducing the impacts of
development. These efforts are critical to the long-term survival of
this species. Recognizing the importance of long-term management of
smooth coneflower populations, management plans that incorporate the
use of prescribed fire and/or mechanized vegetation control have been
prepared for several populations. The Service is working with many
landowners that have smooth coneflower populations to complete or
update management plans for their populations, as most management plans
were first developed in the 1990s and early 2000s and need to
incorporate new fire management and invasive species management
practices. In 2018, we provided land managers with a management plan
outline to facilitate the completion of thorough management plans. Due
to greater awareness of the important role of fire in natural systems,
prescribed fire and mechanical thinning are now regularly used as
management tools on National Forests, military bases, nature preserves,
and other protected lands where smooth coneflower occurs. Land managers
such as the USFS, DOD, USACE, and Savannah River Site, among others,
use prescribed fire on a 2- to 4-year interval as a management tool to
control woody vegetation that might otherwise shade this disturbance-
dependent species. For sites that are not managed intentionally for
smooth coneflower, management practices will likely continue even if
the species is not listed under the Act, primarily because the active
management benefits the overall habitat and meets the management
objectives of the landowner. In general, the management benefits smooth
coneflower, and without it, the habitat conditions for smooth
coneflower would likely degrade and we would need to reassess the
status of the species under the Act. For the most part, management
plans for many of the protected populations of smooth coneflower have
been in place for several years, but we do not know if management
actions would change for these populations if the species were not
listed.
While development pressure on smooth coneflower populations on
private lands remains, the threat of development for the most highly
resilient populations is reduced, as they occur only on protected
lands. As discussed earlier, many smooth coneflower populations occur
on Federal lands, such as those owned or managed by the USFS (George
Washington and Jefferson National Forests in VA, Sumter National Forest
in SC, and Chattahoochee-Oconee National Forest in GA), USACE (Falls
Lake), DOD (Fort Stewart and Fort Jackson Army Bases), and USDOE
(Savannah River Site). These populations are protected on Federal lands
from the threats of ecological succession or destruction due to
development, primarily because Federal partners are vested in the
protection of the species under their management plans. Some smooth
coneflower sites occur on active military bases with limited public
access, such as Fort Jackson and Fort Stewart Army Bases, providing
further protection of these populations. Likewise, the Savannah River
Site, a former nuclear weapons facility, is closed to the public, and
no development or construction is allowed in the areas where smooth
coneflower occurs. This USDOE site, designated as a National
Environmental Research Park, is managed by the USFS. Several other
populations are permanently protected on non-Federal lands by the
VADNH, NCDACS, NCPCP, TNC, and Mecklenburg County (NC) Parks and
Recreation Department.
In response to impacts to populations of smooth coneflower in
roadside and utility ROWs, State departments of transportation and
utility companies, such as Duke Energy and Georgia Power, now have
management agreements or memoranda of understanding with State wildlife
agencies, State Natural Heritage Programs, the USFS, and other
landowners to protect and manage smooth coneflower populations on their
ROWs in a way that is protective of the species.
While significant progress has been made to address the protection
and management of many smooth coneflower populations, development
pressure and management challenges associated with adjacent development
continue to pose a threat to unprotected smooth coneflower populations.
Populations that occur on private lands face threats from development
and land conversion. Additionally, protected populations adjacent to
private land can be difficult to manage with prescribed fire due to
concerns of neighbors. Without proper management, woody vegetation
could grow up and shade a smooth coneflower population to the point of
causing decline or eradication in less than 10 years. Long-term
management is still of concern to the Service, as several populations
are not specifically considered in management plans nor have
commitments to be managed into the future. Maintenance activities pose
a threat to smooth coneflower populations that occur on roadside and
utility ROWs. Despite agreements with State and Federal agencies to
conduct ROW maintenance in a way that is protective of rare plants,
accidents happen frequently. These sites are mowed or sprayed with
herbicide on an irregular basis with varying levels of impacts.
[[Page 40107]]
Collection
When we published the final rule to list smooth coneflower as an
endangered species (57 FR 46340; October 8, 1992), there was concern
that populations might be decimated by collectors interested in
exploiting this species for the horticulture and pharmaceutical trades.
We expected that publicity might generate increased demand for this
species in the nursery trade. However, the final listing rule also
mentioned that smooth coneflower, although offered for sale by a few
native plant nurseries, was not a significant component of the
commercial trade in native plants (57 FR 46340, October 8, 1992, p.
46341). Currently, we are not aware of any plant nurseries that offer
this species for sale, likely a result of the prohibitions on
collecting endangered plants such as smooth coneflower. The only
incidents of poaching known to the Service occurred at one site in GA.
Flowers were broken off smooth coneflower plants at one of the roadside
sites on Currahee Mountain, GA (Alley 2018, pers. comm.). While there
is potential that specialty nurseries would be interested in selling
this species in the future, the Service concludes that the demand for
wild-collected plants is low, as other species in the genus Echinacea
can be readily propagated using common horticultural techniques.
The concern in the final rule (57 FR 46340; October 8, 1992) that
this species would be collected for the pharmaceutical trade was based
on observations of over-collection of other species of Echinacea in the
midwestern United States for use in medicinal products. However, the
rule also stated that ``devastation'' of smooth coneflower populations
for the commercial pharmaceutical trade has not yet been documented (57
FR 46340, October 8, 1992, p. 46342). Despite the concerns, in the 27
years that smooth coneflower has been listed, the Service has not been
aware of any incidents of poaching this species for use in medicinal
products. Because plants in the genus Echinacea are still used for
medicinal purposes, the threat of this activity remains, but the
probability is low due to relatively small population sizes compared to
other species in the genus Echinacea that grow in midwestern States.
Moreover, land managers have not reported poaching as a significant
threat to their smooth coneflower populations because other species of
Echinacea are so much more numerous.
Various types of academic research have been conducted on smooth
coneflower since the species was listed in 1992. These studies involved
the collection of leaves, stems, flowers, and seeds for laboratory
experiments or the collection of voucher specimens for herbaria. The
North Carolina Botanical Garden (NCBG), State Botanical Garden of
Georgia, and Atlanta Botanical Garden have collected smooth coneflower
seeds over the years to be used in restoration projects in their
respective States. These botanical gardens follow the Center for Plant
Conservation guidelines for seed collection and minimize impacts to
populations, a protocol that is followed for all species, regardless of
whether the species is federally listed or not (Kunz 2018, pers.
comm.). We evaluated these projects before they were initiated and
determined that the level of collection was unlikely to pose any
potential threat of overutilization for the species. We do not find
that any of these research or seed banking projects have had long-term
negative effects on smooth coneflower. If the species were not listed,
we do not anticipate a significant increase in collection pressure,
given current lack of poaching and low interest in the species.
We conclude that collection is not a major threat to the continued
existence of smooth coneflower, as long as any future collection
follows best conservation practices described in Menges et al. (2004,
entire) and by the Center for Plant Conservation Best Practices.
Damage Due to Herbivory by Beetles and Deer
When we listed smooth coneflower as an endangered species (57 FR
46340; October 8, 1992), leaf beetles in the family Chrysomelidae had
been observed on smooth coneflower in NC, but their effects were
unknown. As mentioned in the 2011 5-year review, a nonnative longhorn
beetle (Hemierana marginata; family Cerambycidae) was identified at
some smooth coneflower populations in NC. This beetle chews into the
flowering stem and causes flowers to die before producing viable seeds.
While this longhorn beetle has been reported from a few smooth
coneflower populations in two NC counties, healthy smooth coneflower
populations remain at these sites. Therefore, we conclude that the
nonnative longhorn beetle is not a threat at this time.
White-tailed deer (Odocoileus virginianus) have been documented
browsing on the flower heads of smooth coneflower, but deer herbivory
on the leaves has not been observed (Starke 2019, pers. comm.). No
other herbivory has been observed. Based on the best available
information at this time, we conclude that neither deer browsing nor
any other herbivory is causing population-level effects to smooth
coneflower.
State Regulatory Protections
Smooth coneflower is listed as ``State Endangered'' by the GADNR.
The relevant State law (Rules and Regulations of the State of Georgia,
Subject 391-4-10, Protection of Endangered, Threatened, Rare, or
Unusual Species) prohibits, among other things, the transfer of a
State-listed plant from one property to another without the written
permission of the landowner where the species was found. Violations of
this law constitute a misdemeanor. In addition, the Georgia
Environmental Policy Act (GA Code, title 12, chapter 16, article 1)
requires the assessment of major proposed agency impacts on biological
resources. Georgia's Wildflower Preservation Act of 1973 (GA Code,
title 12, chapter 6, article 3) protects rare plants. However, the
Georgia Wildflower Preservation Act does not protect plants on private
property. Regardless, nearly all known smooth coneflower populations in
GA occur on Federal lands such as the Chattahoochee-Oconee National
Forest and DOD (Department of the Army) installations such as Fort
Stewart (Moffett 2018, pers. comm.). As discussed above (see Habitat
Degradation or Loss Due to Development and Absence of Natural
Disturbance), Federal lands provide some protection to smooth
coneflower populations by limiting public access and reducing the
threat of development, as well as ensuring agency-specific management
plans.
Smooth coneflower is listed as ``endangered'' in NC by the NCPCP
and protected by the Plant Protection and Conservation Act of 1979 (NC
General Statutes, chapter 106, article 19B). This law prevents the
removal of State-listed plants from the land without written permission
of the landowner. However, it does not regulate destruction or mandate
protection. It authorizes the NCPCP to establish nature preserves for
protected species and their habitats. To that end, the NCPCP owns and
manages several tracts of land as preserves for the protection of
smooth coneflower and other associated rare plants.
The Virginia Endangered Plant and Insect Species Act (Code of
Virginia, title 3.2, chapter 10), as amended, provides for the official
listing and recovery of endangered and threatened plant and insect
species in VA. The VADNH lists smooth coneflower as ``threatened'' in
the State (VA Administrative Code, title 2, agency 5,
[[Page 40108]]
chapter 320, section 5-320-10 (2VAC5-320-10); Townsend 2018, p. 16).
Virginia law prohibits the removal and sale or gifting of State-listed
plant species from land other than a person's own land. The VADCR owns
three natural area preserves that protect populations of smooth
coneflower. The Virginia Endangered Plant and Insect Species Act has
not played a major role in safeguarding smooth coneflower populations
(Townsend 2019, pers. comm.).
Smooth coneflower is on the South Carolina Department of Natural
Resources' list of rare, threatened, and endangered species of SC
(SCHTP 2018, unpaginated); however, neither the law that authorizes the
creation of this list, nor any other State law, provides general
protection to listed plants in SC.
Populations of smooth coneflower are more abundant and widely
distributed than when it was listed as an endangered species in 1992.
It is also listed as endangered or threatened by three of the four
States where it occurs (GA, NC, and VA). However, protection of this
and other State-listed species on private land is challenging. State
prohibitions against taking are difficult to enforce and do not cover
adverse alterations of habitats such as exclusion of fire. As
previously mentioned in this rule, the majority of the highest ranked
populations (Ranks A, AB, and B) occur on protected Federal lands and
other conservation properties.
Genetics
The final rule listing smooth coneflower as an endangered species
(57 FR 46340; October 8, 1992) stated that, at that time, the remaining
smooth coneflower populations contained few individual plants and there
may have been low genetic variability within populations, making each
remaining population important. However, we now know that smooth
coneflower displays a relatively high level of diversity (Peters et al.
2009, entire). Thus, populations may be able to respond to selection
pressures due to continued genetic exchange sustained by the
outcrossing mating system of the species.
Encroachment From Invasive Species
Encroachment by nonnative, invasive plants poses a threat to some
smooth coneflower populations, especially those occurrences located on
highway ROWs or in utility line easements (such as power lines). These
disturbed habitats often include nonnative species, some of which can
become invasive. Invasive species change the floristic composition of
these areas, compete for nutrients, limit germination of seeds (by
changing or eliminating that niche/microenvironment), and may shade out
smooth coneflower plants. Another impact is the use of herbicides on
invasive species that has the secondary effect of killing smooth
coneflower. Smooth coneflower populations face threats by nonnative,
invasive plants such as Japanese honeysuckle (Lonicera japonica),
Sericea lespedeza (Lespedeza cuneata), shrubby lespedeza (Lespedeza
bicolor), Japanese stiltgrass (Microstegium vimineum), and autumn olive
(Elaeagnus umbellata) (White 2019, entire).
Climate Change
Based on observations of climatic conditions over a period of
approximately 20 years, there is some biological and historical
evidence to indicate that smooth coneflower is adapted to persist with
the range of potential effects of climate change, including more
frequent droughts (below average rainfall over a time period greater
than the historical range of variability) and increased average maximum
temperatures. Smooth coneflower is typically found in open, sunny areas
with little to no shade and high sun exposure. These sites often occur
in fairly xeric conditions such as open woods, glades, barrens,
roadsides, clear cuts, dry limestone bluffs, and road and power line
ROWs. Even though smooth coneflower populations in NC experienced
severe droughts in 2007 and 2010, dry conditions did not negatively
influence flower production (NCPCP 2018, entire). All natural
populations in NC have survived through drought years and recovered.
Despite some drought years, smooth coneflower populations in SC have
generally experienced positive trends over the last 20 years,
indicating that the species is not negatively affected by droughts
(White 2018, entire). Smooth coneflower plants have sustained
populations for years on dry clay road cuts (White 2019, pers. comm.).
Adaptations to survive in sunny areas likely benefit this species
during drought conditions. Further, the perennial growth habitat and
underground rhizomes likely allow smooth coneflower to be more
resilient to drought conditions.
To generate future climate projections across the range of smooth
coneflower, we used the National Climate Change Viewer (NCCV), a tool
developed by the U.S. Geological Survey (USGS) that allows the user to
view climate projections at the State, county, and watershed level
(Alder and Hostetler 2017, entire). The model simulates the response of
the water balance to changes in temperature and precipitation in the
climate models (30 separate models developed by the National
Aeronautics and Space Administration). The NCCV also provides access to
comprehensive summary reports for States, counties, and watersheds.
Using the NCCV and using representative concentration pathways
(RCP) greenhouse gas emission scenarios (RCP 4.5 and 8.5) as possible
outcomes, we calculated projected annual mean changes for maximum air
temperature and precipitation for the period 2050-2074 in VA, NC, SC,
and GA. Based on these results, all four States within the range of
smooth coneflower will be subjected to higher maximum air temperatures
(annual mean increase of 1.9-2.2 degrees Celsius ([deg]C) (3.4-4.0
degrees Fahrenheit ([deg]F)) for RCP 4.5; 2.7-3.2 [deg]C (4.9-5.8
[deg]F) for RCP 8.5) and slightly higher precipitation (annual mean
increase of 0.57-0.74 centimeters (cm)/month (mo) (0.22-0.3 inches
(in)/mo) for RCP 4.5; 0.51-0.76 cm/mo (0.2-0.3 in/mo) for RCP 8.5)
relative to 1981-2010 (Alder and Hostetler 2017, entire). In general,
across the species' range for both RCP 4.5 and 8.5, runoff is expected
to remain at a similar levels or decrease slightly; soil water storage
is expected to decrease slightly, and evaporative deficit will increase
slightly (Alder and Hostetler 2017, entire). Because the average annual
increase in precipitation is predicted to be only slightly higher, the
increased evaporative deficit and the loss in runoff and soil storage
is primarily a result of higher maximum and minimum air temperatures.
Despite the slight increase in predicted precipitation, the coincident
warming means that habitats are unlikely to maintain their current
levels of moisture and will become slightly drier.
To evaluate the vulnerability of smooth coneflower to the effects
of climate change, we also used NatureServe's Climate Change
Vulnerability Index (CCVI) (Young et al. 2015, entire), a climate
change model that uses downscaled climate predictions from tools such
as Climate Wizard (Girvetz et al. 2009, entire) and combines these with
readily available information about a species' natural history,
distribution, and landscape circumstances to predict whether it will
likely suffer a range contraction and/or population reductions due to
the effects of climate change. The tool gauges 20 scientifically
documented factors and indicators of these components, as well as
documented responses to climate change where they exist. The CCVI
[[Page 40109]]
generated a vulnerability rating of ``moderately vulnerable'' for
smooth coneflower, suggesting that the species' abundance and/or range
extent is likely to decrease slightly by 2050. Factors influencing the
species' moderate vulnerability include its restricted dispersal
ability, anthropogenic barriers, predicted land use changes, dependence
on a specific disturbance regime (often fire), and restriction to
uncommon geological features.
Although the model suggested that smooth coneflower is sensitive to
climate change and could be adversely affected in future years, there
are a number of weaknesses associated with the CCVI (Anacker and
Leidholm 2012, pp. 16-17). The specific weaknesses identified are: (1)
The CCVI is weighted too heavily towards direct exposure to climate
change (projected changes to future temperature and precipitation
conditions that have high levels of uncertainties); (2) some important
plant attributes are missing (mating system and pollinator
specificity); (3) it is very difficult to complete scoring for a given
species because some information is simply lacking; (4) some scoring
guidelines are too simplistic (Anacker and Leidholm 2012, pp. 16-17);
and (5) the model does not account for impacts to species' vital rates.
Topographic complexity is a potential complementary factor in
assessing vulnerability to climate change (Anacker and Leidholm 2012,
pp. 12-16). Within smooth coneflower's range, the Appalachian and
Allegheny mountains are predicted to have slightly higher temperature
changes as a result of climate change than the piedmont and coastal
plain counties, so smooth coneflower populations in the mountains on
the north end of the range may be more vulnerable when compared to
those that occur, for example, in the coastal plain.
In summary, while smooth coneflower is considered moderately
vulnerable to range contraction from future climate change, the
predicted temperature and precipitation changes for both moderate (RCP
4.5) and extreme (RCP 8.5) scenarios indicate only slightly hotter and
drier conditions by 2074. Thus, smooth coneflower is expected to have
little to no change for any populations due to drought or temperature
changes that are predicted for the future. Therefore, we conclude that
climate change is not likely a major factor affecting the species'
resiliency into the foreseeable future.
Stochastic Events
Stochastic events (environmental and genetic stochasticity) do not
appear to be adversely affecting populations of smooth coneflower.
Environmental stochasticity refers to variation in recruitment and
mortality rates in response to weather, disease, competition,
predation, or other factors external to the population. While drought
and the timing and amount of rainfall are likely important factors in
seed germination and establishment of smooth coneflower, we do not have
any evidence of how these factors directly affect this species. Smooth
coneflower soil seed banks are low to nonexistent, which could
exacerbate the potential effects of stochastic events because the
species does not have the seed bank to rely on for future recruitment
(Walker 2009, p. 12); however, we have not yet observed that the low
seedbank has affected highly resilient populations. With regard to
genetic stochasticity, smooth coneflower populations have significant
levels of population diversity and exhibit substantial population
genetic differentiation (Peters et al. 2009, p. 12) (see Genetics,
above), as such any genetic stochasticity such as allee effects or
genetic bottlenecks are not likely. Based on the best available
information, we conclude that environmental and genetic stochasticity
do not pose a threat to smooth coneflower.
Cumulative Effects
The cumulative effects of encroaching development adjacent to
protected sites and the management challenges that accompany that
threat will continue to affect the species into the future. Increasing
development adjacent to protected sites will likely lead to decreases
in managing with prescribed burning in the future, which may or may not
be replaced with adequate and appropriate habitat management by other
means that are more expensive than managing with fire. The type of
development also factors into management ability and flexibility, with
major roads and places with vulnerable populations weighing more
heavily on the decision of if/when to burn than other types of
development.
Summary of Comments and Recommendations
In the proposed rule published on June 24, 2021 (86 FR 33159), we
requested that all interested parties submit written comments on the
proposal by August 23, 2021. We also contacted appropriate Federal and
State agencies, scientific experts and organizations, and other
interested parties and invited them to comment on the proposal. A
newspaper notice inviting general public comment was published in the
public notice section of USA Today on July 12, 2021. We did not receive
any requests for a public hearing. We received four public comments,
primarily in support of our proposed downlisting of smooth coneflower,
during the proposed rule's public comment period, but none raised
issues substantial enough to change our conclusions from the proposed
rule.
Peer Reviewer Comments
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review of
listing actions under the Act, we sought peer review of the proposed
reclassification rule. The Service sent the proposed rule to four
independent peer reviewers who had expertise in smooth coneflower
ecology and the threats to its habitat. We received responses from two
of the peer reviewers.
We reviewed all comments we received from the peer reviewers for
substantive issues and new information regarding the information
contained in the proposed reclassification rule. The peer reviewers
generally concurred with our methods and conclusions, and provided
additional information, clarifications, and suggestions to improve the
final rule. Peer reviewer comments are addressed in the following
summary and were incorporated into this final rule, as appropriate.
(1) Comment: One peer reviewer indicated that the studies we cited
for information on reproductive biology seem to conflict, stating that
while one cited study includes butterflies as pollinators, another more
correctly identifies butterflies as visitors collecting nectar, not as
effective pollinators.
Our Response: These two statements in the proposed rule were
somewhat confusing. Based on the literature cited, skippers,
butterflies, and wasps are frequent floral visitors; however, bees are
believed to be the most effective pollinators (Gadd 2006, p. 15;
Collins and Fore 2009, pp. 452-454). We have made minor edits to this
final rule to clarify this distinction.
(2) Comment: One peer reviewer suggested that we provide reference
to best management practices for the downlisting/delisting criterion 4
(management plans implemented). They also suggested that we comment on
where outdated management plans fall short of current knowledge (e.g.,
updated fire frequency, timing, etc.).
[[Page 40110]]
Our Response: In the proposed rule and this final rule, we include
best management practices where we indicate that smooth coneflowers
require early to mid-successional habitat provided via management
techniques that include the use of prescribed fire on 3- to 5-year
rotations, or well-timed mowing or mechanical clearing, and the control
of invasive species with herbicides selectively applied to cut stumps
to prevent growth. We assert that maintaining open habitat (through
prescribed fire or mechanical clearing) and invasive species control
are important management practices that are critical to the long-term
survival of smooth coneflower and have included reference to these
practices in this final rule. We also note that the Service is working
with land managers to update management plans by providing a template
as a guide including how to best manage smooth coneflower with fire and
for invasive species, which will help improve the seven generic
management plans and the six outdated management plans mentioned above
in Downlisting/Delisting Criterion 4 (Management plans implemented).
(3) Comment: One peer reviewer stated that our conclusion regarding
collection threat has some flaws, noting that the proposed rule
indicated that the incidence of collection was limited and the Service
indicated that the collection that did take place was conducted using
very conservative practices. The peer reviewer suggested that the
conclusion should be revised to state that overcollection is not a
major threat as long as any future collection follows best conservation
practices.
Our Response: Limited collection of smooth coneflower has occurred
over time, but has been minimal in scope and not been a major threat to
the species. Any future collection efforts should follow best
conservation practices, as described in Menges et al. (2004) and by
Center for Plant Conservation Best Practices. We noted in the proposed
rule and reiterate in this final rule that overcollection has not been
documented for the species (see Collection, above).
(4) Comment: One peer reviewer commented that the climate models we
used do not account for impacts to the species' vital rates (i.e.,
changes in survivorship/mortality, fecundity). The peer reviewer
indicated that vital rates can be broadly used to look at range
contraction but have long been used with metrics like population
viability analyses to determine persistence/threat of individual sites/
populations. However, the peer reviewer agreed that based on the
information in the proposed reclassification, smooth coneflower should
have little changes at individual populations due to drought and
temperature changes under predicted climate change.
Our Response: The climate change models we used do not account for
impacts to the species' vital rates. However, given that smooth
coneflower is tolerant of increased temperatures and drought, we have
determined that climate change is not likely a major factor affecting
the species' resiliency into the foreseeable future.
Determination of Smooth Coneflower's Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines ``endangered species'' as a species
that is in danger of extinction throughout all or a significant portion
of its range, and ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether a species meets the definition of endangered species
or threatened species because of any of the following factors: (A) The
present or threatened destruction, modification, or curtailment of its
habitat or range; (B) overutilization for commercial, recreational,
scientific, or educational purposes; (C) disease or predation; (D) the
inadequacy of existing regulatory mechanisms; or (E) other natural or
manmade factors affecting its continued existence.
As also described above, 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. 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. Where we had data over longer time frames,
we analyzed those data (e.g., climate data); however, for the factors
most influential in affecting the status of the smooth coneflower, such
as development and succession due to lack of adequate management, we
could only reliably predict the magnitude of the primary threats and
the subsequent effects on smooth coneflower over a time frame of 20 to
30 years. Therefore, we consider the foreseeable future to be 20-30 .
Threats that are reasonably likely to affect the species in the
foreseeable future include habitat loss due to development pressure on
private lands and habitat succession due to lack of adequate management
(see Habitat Degradation or Loss Due to Development and Absence of
Natural Disturbance, above), including fire suppression near or on
private lands and accidental mowing and herbicide application from
roadside maintenance activities. Thus, all populations of smooth
coneflower that are not actively managed or formally protected remain
at risk of extirpation in the future. The 20-30 year period reflects
the range from the time when the species was listed (1992) to the
present (30 years), and provides a timeframe of reference observations
that enables the Service to predict future management scenarios for the
species and the species' response to threats and management actions.
This prior experience indicates that a 20 to 30 year timeframe is the
expected period over which implementation of management practices (such
as prescribed fire) by conservation partners and tracking of the
species' response to managed habitat improvement is reliable. Further,
this time period coincides with the SLEUTH urban growth models,
allowing us to make reliable predictions with respect to the threat of
development. For formally protected populations, we expect management
of the threat of fire suppression to continue as part of ongoing
management well into the future. Therefore, we used the 20- to 30-year
timeframe in developing our projections of future conditions for smooth
coneflower.
Status Throughout All of Its Range
After evaluating threats to the species and assessing the
cumulative effect of the threats under the Act's section 4(a)(1)
factors, we find that smooth coneflower continues to face threats from
habitat succession (resulting from lack of fire or other management),
particularly in areas where development is increasing near existing
populations, thus making fire management difficult. In addition,
development pressure, especially for unprotected populations on private
lands, remains a concern. We are concerned about long-term management
because several populations do not have management plans or the
management plans no longer reflect the best available science. Even
populations occurring on protected land adjacent to private lands are
becoming increasingly more difficult to manage due to neighbors'
concerns about nearby fires and smoke pollution. Even with agreements
in place to protect them, populations in roadside
[[Page 40111]]
and utility ROWs still face threats from maintenance activities,
especially herbicide spraying and mowing. The decline or disappearance
of some smooth coneflower populations across the range of the species
has been documented in Natural Heritage Program records and is
attributed to habitat loss. Habitat loss (Factor A) is considered to be
a moderate threat currently and is expected to continue in the
foreseeable future.
At the time of listing in 1992, there was concern that smooth
coneflower plants would be collected for the horticulture or
pharmaceutical trade (Factor B). However, we do not find that
collecting is currently a threat to this species or is expected to be
in the foreseeable future.
Disease and predation (Factor C) were not identified as a
significant threat to smooth coneflower when the species was listed in
1992. Natural herbivory by insects and mammals may occur, but it is a
considered a low-magnitude threat because the species has sustained
populations and there is no indication that the magnitude of an
undetermined natural predation pressure significantly affects smooth
coneflower survival. We find that disease and predation are not
currently threats to this species, and we do not expect them to be
threats in the foreseeable future.
The existing regulatory mechanisms (Factor D) are not adequate to
protect smooth coneflower from development and habitat succession.
Populations of smooth coneflower on USFS, DOD, and USDOE lands receive
some protection by management protocols applicable to those lands.
Furthermore, some populations in NC, SC, and VA occur on State-owned
lands managed by their respective Natural Heritage Programs or the
NCDACS as ``dedicated nature preserves.'' However, while NC, GA, and VA
have plant protection laws, they only regulate the collection and trade
of listed species and do not prohibit the destruction of populations on
private lands or otherwise mandate protection. There is no State law
protecting rare plants in SC.
Other natural and manmade factors affecting the continued existence
(Factor E) of smooth coneflower identified at the time of listing
(1992) include low genetic variability within populations, encroachment
by exotic species, herbicide use, and the importance of periodic
disturbance (addressed above under Factor A). Since listing, climate
change is another factor that has been identified. Of these threats,
encroachment by exotic (invasive) species and use of herbicides to
manage those exotic species continue to be a threat to smooth
coneflower populations. New information since the time of listing
indicates that smooth coneflower displays a relatively high level of
diversity and that populations may be able to respond to selection
pressures and maintain viability due to continued genetic exchange
sustained by the outcrossing mating system of the species. Based on the
number, distribution, and genetic diversity of the species, we conclude
that potential impacts associated with stochastic events are not a
threat to smooth coneflower. Despite our uncertainty about the species'
vulnerability to climate change, we do not consider climate change to
be a threat to smooth coneflower based on the current resiliency of the
species and its demonstrated tolerance to periods of drought.
Further, since the species' 1992 listing under the Act, new smooth
coneflower occurrences have been discovered throughout the range of the
species, especially with the new sites in the coastal plain of GA and
SC. Our understanding of the species' distribution has improved as a
result of increased survey efforts; the species is now known from 44
populations (up from 21 populations at the time of listing), 16 of
which currently have high to medium resiliency. The species' geographic
representation is good, given the distribution of highly resilient
populations over a four-State area. We believe that this improvement in
the species' viability demonstrates that it is not currently in danger
of extinction throughout its range despite the persistence of the
above-described threats.
In conclusion, based on our assessment of the best available
scientific and commercial information, we find that while smooth
coneflower populations continue to face threats from habitat loss and
invasive species, and existing regulatory mechanisms are currently
inadequate to protect some smooth coneflower populations from
development and habitat succession, there are currently 16 protected,
high resiliency smooth coneflower populations and a total of 44
populations, up from 21 populations at the time of listing. Therefore,
the species no longer meets the Act's definition of an endangered
species.
We, therefore, proceed with determining whether smooth coneflower
meets the Act's definition of a threatened species. The ongoing threats
of habitat loss, habitat fragmentation, habitat succession, and
encroachment of nonnative and invasive species are of sufficient
imminence, scope, or magnitude to affect the resiliency of smooth
coneflower populations for the foreseeable future. The species relies
on management such as prescribed fire and mechanical clearing to
maintain its habitat. However, management plans for most of the areas
in which the species is protected are outdated, and it is uncertain how
those plans will continue to be implemented. Threatened development
near protected sites could impede management of those sites with fire.
Adequate management commitments would need to be secured for more
populations before the species could be delisted. Thus, after assessing
the best available information, we conclude that although smooth
coneflower is not currently in danger of extinction, but it is likely
to become in danger of extinction within the foreseeable 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 our 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. In undertaking this
analysis for smooth coneflower, 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
[[Page 40112]]
any portions of the range where the species is endangered.
For smooth coneflower, we considered whether the threats are
geographically concentrated in any portion of the species' range at a
biologically meaningful scale, which may indicate this portion could
have a different status. We examined the threats of habitat succession,
habitat loss, and invasive species, as well as the cumulative effects
of these threats, and considered whether management actions were being
implemented. Smooth coneflower populations on private lands throughout
the range face the threat of development and are not being managed with
prescribed fire. However, while the development threat is concentrated
near already urbanizing areas, most coneflower populations near those
areas are protected in preserves. The decline or disappearance of some
smooth coneflower populations across the range of the species has been
documented in Natural Heritage Program records and is attributed to
habitat loss, primarily due to lack of proper management. There is no
indication that management is more or less likely to be implemented in
any particular area within the range; thus, no specific population
appears to be more subject to stochastic events than others. Further,
encroachment by invasive species, which is most prevalent in disturbed
areas, such as highway ROWs or utility corridors, occurs throughout the
smooth coneflower's range. Accordingly, we found no concentration of
threats in any portion of the smooth coneflower's range at a
biologically meaningful scale. Thus, there are no portions of the
species' range where the species has a different status from its
rangewide status. Therefore, it is unnecessary for us to determine
whether any portion of the species' range is significant. This is
consistent with the courts' holdings in Desert Survivors v. Department
of the Interior, No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug.
24, 2018), and Center for Biological Diversity v. Jewell, 248 F. Supp.
3d, 946, 959 (D. Ariz. 2017).
Determination of Status
Our review of the best available scientific and commercial
information indicates that smooth coneflower meets the Act's definition
of a threatened species. Therefore, we are reclassifying smooth
coneflower from an endangered species to a threatened species in
accordance with sections 3(20) and 4(a)(1) of the Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. The Act encourages cooperation with the States and requires
that recovery actions be implemented for all listed species. The
protections 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. As discussed earlier in this document, section 4(f) of the Act
requires 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 ecosystem.
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 identifies site-specific management
actions that set a trigger for review of the five factors that control
whether a species may be downlisted or delisted, 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. All planning documents can
be found on our website (<a href="https://www.fws.gov/program/endangered-species">https://www.fws.gov/program/endangered-species</a>).
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,
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 (like TNC preserves and county-owned nature preserves).
To achieve recovery of these species requires cooperative conservation
efforts on private, State, and Tribal lands where appropriate. Funding
for recovery actions could become available from a variety of sources,
including Federal budgets, State programs, and cost share grants from
non-Federal landowners, the academic community, and nongovernmental
organizations. We invite you to submit any new information on this
species whenever it becomes available (see FOR FURTHER INFORMATION
CONTACT).
Section 7(a) requires Federal agencies to evaluate their actions
with respect to any species that is listed as an endangered or
threatened species. Regulations implementing this interagency
cooperation provision of the Act are codified at 50 CFR part 402.
Section 7(a)(2) of the Act requires Federal agencies to ensure that
activities they authorize, fund, or carry out are not likely to
jeopardize the continued existence of the species. If a Federal action
may affect a listed species, the responsible Federal agency must enter
into consultation with the Service.
Federal agency actions within the species' habitat that may require
consultation as described in the preceding paragraph include management
and any other landscape-altering activities on Federal lands
administered by the USFS; issuance of section 404 Clean Water Act (33
U.S.C. 1251 et seq.) permits by the USACE; and construction and
maintenance of roads or highways by the Federal Highway Administration.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed, those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a final listing
on proposed and ongoing activities within the range of a listed
species. The discussion below regarding protective regulations under
section 4(d) of the Act complies with our policy.
II. Final Rule Issued Under Section 4(d) of the Act
The Act allows the Secretary to promulgate protective regulations
for threatened species pursuant to section 4(d). Because we are
reclassifying this species as a threatened species, the prohibitions in
section 9 would not apply directly. We are, therefore, enacting a set
of regulations to provide for the conservation of the species in
accordance with section 4(d) of Act,
[[Page 40113]]
which also authorizes us to apply any of the prohibitions in section 9
to a threatened species. The rule includes a description of the kinds
of activities that would or would not constitute a violation.
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 [her] with regard to the permitted activities for those species.
[She] may, for example, permit taking, but not importation of such
species, or [she] may choose to forbid both taking and importation but
allow the transportation of such species'' (H.R. Rep. No. 412, 93rd
Cong., 1st Sess. 1973).
Provisions of the 4(d) Rule
Exercising the Secretary's authority under section 4(d) of the Act,
we have developed a rule that is designed to address the smooth
coneflower's specific threats and conservation needs. Although the
statute does not require the Service to make a ``necessary and
advisable'' finding with respect to the adoption of specific
prohibitions under section 9, we find that this rule as a whole
satisfies the requirement in section 4(d) of the Act to issue
regulations deemed necessary and advisable to provide for the
conservation of smooth coneflower.
As discussed above under Summary of Biological Condition and
Threats, we have concluded that smooth coneflower is likely to become
in danger of extinction within the foreseeable future primarily due to
the present or threatened destruction, modification, or curtailment of
its habitat or range (specifically due to fire suppression and
subsequent ecological succession and development, and encroachment from
invasive species). Specifically, a number of activities have the
potential to affect smooth coneflower, including land clearing for
development, fire suppression, and herbicide application to highway and
utility ROWs. Extending the Act's section 9 prohibitions for plants,
including making it unlawful to remove, damage, or destroy smooth
coneflowers, will provide for conservation of the species by helping to
preserve remaining populations, slowing their rate of potential
decline, and decreasing synergistic, negative effects from other
stressors. Prohibiting import and export, transportation, and commerce
of smooth coneflower limits unauthorized propagation and distribution,
which prevents potential hybridization with other species of Echinacea
and subsequent inbreeding depression. As a whole, the 4(d) rule helps
in the efforts to recover the species.
The provisions of this 4(d) rule promote conservation of smooth
coneflower by encouraging management of the landscape in ways that meet
both land management considerations and the conservation needs of
smooth coneflower, specifically by providing exceptions for State
agency conservation actions, scientific permits for research, and use
of cultivated-origin seeds for education. The provisions of this rule
are one of many tools that we will use to promote the conservation of
smooth coneflower.
This 4(d) rule provides for the conservation of smooth coneflower
by extending the prohibitions of section 9(a)(2), prohibiting the
following activities, except as otherwise authorized or permitted:
Import or export; removing and reducing to possession smooth coneflower
from areas under Federal jurisdiction; maliciously damaging or
destroying the species on any area under Federal jurisdiction;
removing, cutting, digging up, or damaging or destroying 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; delivering, receiving, carrying, transporting, or shipping the
species in interstate or foreign commerce in the course of a commercial
activity; and selling or offering for sale the species in interstate or
foreign commerce.
We may issue permits to carry out otherwise prohibited activities,
including those described above, involving threatened plants under
certain circumstances. Regulations governing permits are codified at 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 activities
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 us in implementing all aspects of the Act. In this
regard, section 6 of the Act provides that we shall cooperate to the
maximum extent practicable with the States in carrying out programs
authorized by the Act. Therefore, as set forth at 50 CFR 17.71(b), any
employee or agent of the Service or of a State conservation agency that
is operating a conservation program pursuant to the terms of a
cooperative agreement with the Service in accordance with section 6(c)
of the
[[Page 40114]]
Act, who is designated by that agency for such purposes, will be
allowed, when acting in the course of official duties, to remove and
reduce to possession from areas under Federal jurisdiction smooth
coneflowers that are covered by an approved cooperative agreement to
carry out conservation programs. In addition, in accordance with 50 CFR
17.61(c)(2) through (4), any employee or agent of the Service, any
other Federal land management agency, or a State conservation agency,
who is designated by that agency for such purposes, will be able to,
when acting in the course of official duties, remove and reduce to
possession smooth coneflower from areas under Federal jurisdiction
without a permit to care for a damaged or diseased specimen, or to
salvage or dispose of a dead specimen.
We also recognize the beneficial and educational aspects of
activities with seeds of cultivated plants, which generally enhance the
propagation of the species. We intend to monitor the interstate and
foreign commerce and the import and export of these specimens in a
manner that will not inhibit such activities, providing the activities
do not represent a threat to the survival of the species in the wild.
In this regard, we have created an exception from the prohibitions for
seeds of cultivated specimens, provided that a statement that the seeds
are of ``cultivated origin'' accompanies the seeds or their container
(e.g., the seeds could be moved across State lines or between
territories for purposes of seed banking or use for outplanting without
additional regulations).
Nothing in this 4(d) rule changes in any way the recovery planning
provisions of section 4(f) of the Act, the consultation requirements
under section 7 of the Act, or our ability to enter into partnerships
for the management and protection of smooth coneflower. However,
interagency cooperation may be further streamlined through planned
programmatic consultations for the species between us and other Federal
agencies, where appropriate.
Required Determinations
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act, need not be prepared in connection with
determining and implementing a species' listing status under the
Endangered Species Act. We published a notice outlining our reasons for
this determination in the Federal Register on October 25, 1983 (48 FR
49244).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and the Department
of the Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes. We have determined that there are no
Tribal interests affected by this rule.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Authors
The primary authors of this rule are the staff members of the Fish
and Wildlife Service's Species Assessment Team and the Raleigh
Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
unless otherwise noted.
0
2. Amend Sec. 17.12, in paragraph (h), by revising the entry for
``Echinacea laevigata'' under FLOWERING PLANTS in the List of
Endangered and Threatened Plants to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Scientific name Common name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
Flowering Plants
* * * * * * *
Echinacea laevigata............. Smooth coneflower.. Wherever found.... T 57 FR 46340, 10/8/1992;
87 FR [insert Federal
Register page where
the document begins],
7/6/2022; 50 CFR
17.73(f).\4d\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.73 by adding paragraphs (c) through (f) to read as
follows:
Sec. 17.73 Special rules--flowering plants.
* * * * *
(c)-(e) [Reserved]
(f) Echinacea laevigata (smooth coneflower)--(1) Prohibitions. The
following prohibitions that apply to endangered plants also apply to
Echinacea laevigata. Except as provided under paragraph (f)(2) of this
section, it is unlawful for any person subject to the jurisdiction of
the United States to commit, to attempt to commit, to solicit another
to commit, or cause to be committed, any of the following acts in
regard to this species:
(i) Import or export, as set forth at Sec. 17.61(b) for endangered
plants.
(ii) Remove and reduce to possession from areas under Federal
jurisdiction, as set forth at Sec. 17.61(c)(1) for endangered plants.
[[Page 40115]]
(iii) Maliciously damage or destroy the species on any areas under
Federal jurisdiction, or remove, cut, dig up, or damage or destroy the
species on any other area in knowing violation of any State law or
regulation or in the course of any violation of a State criminal
trespass law, as set forth at section 9(a)(2)(B) of the Act.
(iv) Engage in interstate or foreign commerce in the course of
commercial activity, as set forth at Sec. 17.61(d) for endangered
plants.
(v) Sell or offer for sale, as set forth at Sec. 17.61(e) for
endangered plants.
(2) Exceptions from prohibitions. In regard to Echinacea laevigata,
you may:
(i) Conduct activities, including activities prohibited under
paragraph (f)(1) of this section, if they are authorized by a permit
issued in accordance with the provisions set forth at Sec. 17.72.
(ii) Conduct activities authorized by a permit issued under Sec.
17.62 prior to August 5, 2022 for the duration of the permit.
(iii) Remove and reduce to possession from areas under Federal
jurisdiction, as set forth at Sec. 17.61(c)(2) through (4) for
endangered plants and Sec. 17.71(b).
(iv) Engage in any act prohibited under paragraph (f)(1) of this
section with seeds of cultivated specimens, provided that a statement
that the seeds are of ``cultivated origin'' accompanies the seeds or
their container.
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-14291 Filed 7-5-22; 8:45 am]
BILLING CODE 4333-15-P
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</html>Indexed from Federal Register on July 6, 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.