Rule2023-03656
Endangered and Threatened Wildlife and Plants; Endangered Species Status for Prostrate Milkweed and Designation of Critical Habitat
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 28, 2023
Effective
March 30, 2023
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), are listing the prostrate milkweed (Asclepias prostrata), a plant species from Texas, as an endangered species and designating critical habitat under the Endangered Species Act of 1973, as amended (Act). We are designating approximately 661.0 acres (267.5 hectares) in Starr and Zapata Counties, Texas, as critical habitat for the prostrate milkweed under the Act. This rule adds this species to the List of Endangered and Threatened Plants and extends the Act's protections to the species and its designated critical habitat.
Full Text
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[Federal Register Volume 88, Number 39 (Tuesday, February 28, 2023)]
[Rules and Regulations]
[Pages 12572-12602]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-03656]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2021-0041; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BE65
Endangered and Threatened Wildlife and Plants; Endangered Species
Status for Prostrate Milkweed and Designation of Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are listing
the prostrate milkweed (Asclepias prostrata), a plant species from
Texas, as an endangered species and designating critical habitat under
the Endangered Species Act of 1973, as amended (Act). We are
designating approximately 661.0 acres (267.5 hectares) in Starr and
Zapata Counties, Texas, as critical habitat for the prostrate milkweed
under the Act. This rule adds this species to the List of Endangered
and Threatened Plants and extends the Act's protections to the species
and its designated critical habitat.
DATES: This rule is effective March 30, 2023.
ADDRESSES: Our February 15, 2022, proposed rule and this final rule are
available on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Comments and
materials we received, as well as supporting documentation we used in
preparing this rule, are available for public inspection at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R2-ES-2021-0041. For the critical
habitat designation, the coordinates or plot points or both from which
the maps are generated are included in the decision file for this
critical habitat designation and are available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R2-ES-2021-0041.
FOR FURTHER INFORMATION CONTACT: Chuck Ardizzone, Field Supervisor,
Texas Coastal Ecological Services Field Office, 17629 El Camino Real
Suite 211, Houston, TX 77058; telephone 281-286-8282. 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 warrants
listing if it meets the definition of an endangered species (in danger
of extinction throughout all or a significant portion of its range) or
a threatened species (likely to become endangered within the
foreseeable future throughout all or a significant portion of its
range). If we determine that a species warrants listing, we must list
the species promptly and designate the species' critical habitat to the
maximum extent prudent and determinable. We have determined that the
prostrate milkweed meets the definition of an endangered species;
therefore, we are listing it as such and finalizing a designation of
its critical habitat. Both listing a species as an endangered or
threatened species and designating critical habitat can be completed
only by issuing a rule through the Administrative Procedure Act
rulemaking process (5 U.S.C. 551 et seq.).
What this document does. This rule lists the prostrate milkweed as
an endangered species and designates approximately 661.0 acres (267.5
hectares) in Starr and Zapata Counties, Texas, as critical habitat for
this species under the Act.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined that competition from
introduced invasive grass, habitat loss and degradation from root-
plowing and conversion of native vegetation to improved buffelgrass
pasture, habitat loss from right-of-way construction and maintenance
from energy development and road and utility construction, and habitat
loss from border security development and enforcement activities
(Factor A), as well as the demographic and genetic consequences of
small population sizes (Factor E), are threats to the prostrate
milkweed.
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary) to designate critical habitat concurrent with listing to
the maximum extent prudent and determinable. Section 3(5)(A) of the Act
defines critical habitat as: (i) the specific areas within the
geographical area occupied by the species, at the time it is listed, on
which are found those physical or biological features (I) essential to
the conservation of the species and (II) which may require special
management considerations or protections; and (ii) specific areas
outside the geographical area occupied by the species at the time it is
listed, upon a determination by the Secretary that such areas are
essential for the conservation of the species. Section 4(b)(2) of the
Act states that the Secretary must make the designation on the basis of
the best scientific data available and after taking into consideration
the economic impact, the impact on national security, and any other
relevant impacts of specifying any particular area as critical habitat.
The Secretary may exclude an area from critical habitat if she
determines that the benefits of such exclusion outweigh the benefits of
specifying such area as part of the critical habitat, unless she
determines, based on the best scientific data available, that the
failure to designate such area as critical habitat will result in the
extinction of the species.
The critical habitat we are designating in this rule, in eight
units comprising 661.0 acres (ac) (267.5 hectares (ha)), constitutes
our current best assessment of the areas that meet the definition of
critical habitat for prostrate milkweed.
Previous Federal Actions
On February 15, 2022, we published a proposed rule (87 FR 8509) in
the Federal Register to list prostrate milkweed as an endangered
species and
[[Page 12573]]
to designate critical habitat for the species under the Act (16 U.S.C.
1531 et seq.). Please refer to that proposed rule for a detailed
description of previous Federal actions concerning this species.
Peer Review
A species status assessment (SSA) team prepared an SSA report for
the prostrate milkweed. The SSA team was composed of Service biologists
in consultation with other species experts. The SSA report represents a
compilation of the best scientific and commercial data available
concerning the status of the species, including the impacts of past,
present, and future factors (both negative and beneficial) affecting
the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review of
listing actions under the Act, we solicited independent peer review of
the information contained in the SSA report. As discussed in the
proposed rule, we sent the SSA report to six independent peer reviewers
and received two responses. The peer reviews can be found at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. In preparing the proposed rule, we incorporated
the results of these reviews, as appropriate, into the SSA report,
which was the foundation for the proposed rule and this final rule. A
summary of the peer review comments and our responses can be found in
the proposed rule (87 FR 8509; February 15, 2022).
Summary of Changes From the Proposed Rule
In preparing this final rule, we reviewed and fully considered
comments from the public on our February 15, 2022, proposed rule (87 FR
8509). We did not make any substantial changes to this final rule after
consideration of the comments we received. We did, however, make the
revisions to the critical habitat designation described below based on
new information.
In this final rule, we revise critical habitat Unit 2 to reflect
recently constructed border wall, which reduces the area meeting the
definition of critical habitat in that unit. Specifically, this change
results in a decrease of 19.7 ac (8.0 ha) of critical habitat from what
we proposed for Unit 2 on February 15, 2022 (87 FR 8509).
In this final rule, we also revise critical habitat Unit 5 to
correct a map projection error of the national wildlife refuge tract
boundary, which reduces the area of this unit. Specifically, this
change results in a decrease of 10.6 ac (4.3 ha) of critical habitat
from what we proposed for Unit 5 on February 15, 2022 (87 FR 8509).
Overall, these changes to Units 2 and 5 result in a net decrease of
30.3 ac (12.3 ha) in the critical habitat for prostrate milkweed from
what we proposed on February 15, 2022 (87 FR 8509).
We also make minimal nonsubstantive clarifications and editorial
corrections in this final rule.
Summary of Comments and Recommendations
In our February 15, 2022, proposed rule (87 FR 8509), we requested
that all interested parties submit written comments on the proposal by
April 18, 2022. We also contacted appropriate Federal and State
agencies, scientific experts and organizations, and other interested
parties and invited them to comment on the proposed listing
determination, proposed designation of critical habitat, and draft
economic analysis. Newspaper notices inviting public comment were
published in several local newspapers, including The Monitor on
February 21, 2022. We did not receive any requests for a public
hearing. All substantive information provided during the comment period
has either been incorporated directly into this final determination or
is addressed below.
State Agency Comments
(1) Comment: Texas Parks and Wildlife Department commented that
designating critical habitat on private lands where support for the
designation is not confirmed could harm relationships with landowners
and ultimately impede voluntary conservation efforts for listed species
and lead to additional resource protection, management, and partnership
challenges.
Our response: We place great value on our partnerships with private
landowners. Because important areas for prostrate milkweed conservation
can occur on private lands, collaborative relationships with private
landowners are key to further recovery. Designation of critical habitat
does not affect land ownership, establish any restrictions on use of or
access to the designated areas, establish specific land management
standards or prescriptions, or prevent access to any land. Further, the
Act does not authorize the Service to regulate private actions on
private lands, and landowners are not obligated to incur any costs
related to the species' conservation or to alter their current land
management. Therefore, the listing of prostrate milkweed and
designation of critical habitat will not impact private landowners and
thus will not impede conservation efforts.
The Service supports voluntary conservation through our Partners
for Fish and Wildlife Program and understands concerns for landowner
privacy regarding rare plant locations. Where consistent with the
discretion provided by the Act, it is beneficial to implement policies
that provide positive incentives to private landowners to voluntarily
conserve natural resources and that remove or reduce disincentives to
conservation. Voluntary conservation programs may provide technical or
financial assistance to the landowner. Private landowners may contact
their local Service field office to obtain information about these
programs.
(2) Comment: Texas Parks and Wildlife Department also commented
that the benefits of excluding private lands from a critical habitat
designation may outweigh the benefits of including those lands when the
necessary landowner support has not been secured prior to such a
designation.
Our response: According to our Policy Regarding Implementation of
Section 4(b)(2) of the Endangered Species Act (81 FR 7226; February 11,
2016), we consider six elements when considering whether or not to
exclude an area from critical habitat: (1) partnerships and
conservation plans; (2) conservation plans permitted under section 10
of the Act; (3) national security and homeland security impacts; (4)
Tribal lands; (5) Federal lands; and (6) economic impacts. We give
great weight and consideration to the conservation benefits provided
through permitted and non-permitted conservation plans, programs, and
partnerships. We will generally exclude any area covered by non-
permitted conservation where partnerships provide a benefit to the
species and its habitat. A generalized concern regarding the potential
impact to landowner support is not sufficient grounds for us to be able
to undertake an analysis weighing the benefits of exclusion against the
benefits of inclusion in considering an area for exclusion. Under the
Services' Policy Regarding Implementation of Section 4(b)(2) of the
Endangered Species Act (81 Federal Register 7226; February 11, 2016), a
proponent of such an exclusion must provide a reasoned rationale for
such exclusion, including measures undertaken to conserve species and
habitat on the land at issue (such that the benefit of inclusion is
reduced). Evidence of a permitted conservation plan or non-permitted
conservation agreement and partnership would be
[[Page 12574]]
required to demonstrate how the affected landowner(s) would provide a
benefit to the species and its habitat. The commenter did not provide
sufficient information for us to meaningfully evaluate the benefits of
exclusion of private lands. Accordingly, we did not consider any areas
for exclusion based on the potential impact to landowner support.
(3) Comment: The Office of the Attorney General of Texas commented
that we should not list prostrate milkweed as an endangered species or
designate portions of the Texas border as critical habitat under the
Act because it would have a significant impact on national security by
preventing Texas's efforts to address the border crisis and national
security, such as ongoing and future efforts to erect and establish
deterrents to illegal border crossings, including, but not limited to,
construction of a border barrier.
Our response: The Act requires us to make a determination using the
best available scientific and commercial data after conducting a review
of the status of the species. For prostrate milkweed, the best
available scientific and commercial data indicate that the species is
currently in danger of extinction and therefore we are required to list
the species as endangered under the Act. For exclusion of an area from
critical habitat designation, we follow our Policy Regarding
Implementation of Section 4(b)(2) of the Endangered Species Act (81 FR
7226; February 11, 2016), which outlines measures we consider when
excluding any areas from critical habitat. We reviewed the commenter's
request and applied the February 11, 2016, Policy (81 FR 7226). Based
on this analysis, we determined that the area should not be excluded
from this final rule. Please see Consideration of Impacts under Section
4(b)(2) of the Act, Exclusions Based on Other Relevant Impacts, below,
for our analysis of the Attorney General of Texas' request for
exclusion for lands along the Texas border.
(4) Comment: The Office of the Attorney General of Texas commented
that two environmental impact analyses conducted by U.S. Customs and
Border Patrol have concluded that construction activity, such as
building roads or a border wall, in the counties listed in the February
15, 2022, proposed rule would have minimal or no significant impact on
vegetation, including the prostrate milkweed, and, therefore,
designating critical habitat is not needed to protect the species from
this activity.
Our response: Occupied critical habitat is defined under section 3
of the Act as the specific areas within the geographical area occupied
by the species, at the time it is listed in accordance with the Act, on
which are found those physical or biological features (PBFs) (I)
essential to the conservation of the species and (II) which may require
special management considerations or protection (16 U.S.C.
1532(5)(A)(i)). We find that the areas included in this final
designation meet the first prong of the Act's definition of critical
habitat; therefore, we must include them in the final designation
unless the benefits of exclusion outweigh the benefits of inclusion. As
discussed above in response to comment (3), we found that the benefits
of exclusion did not outweigh the benefits of inclusion. Even if border
construction activities will have minimal or no significant impacts to
vegetation itself, critical habitat is meant to conserve all parts of
the physical and biological habitat that are essential to prostrate
milkweed. For a list of the PBFs, please refer to Physical or
Biological Features Essential to the Conservation of the Species,
below.
Once critical habitat is designated, we will continue to
collaborate with DHS and CBP to ensure border security operations can
still occur in areas designated as critical habitat for prostrate
milkweed. To the best of our ability, we will work with other Federal
agencies, including U.S. Customs and Border Patrol, to ensure actions
they fund, authorize, or undertake are not likely to destroy or
adversely modify critical habitat, including any of the PBFs essential
to the conservation of the species. For prostrate milkweed, this
includes destruction or adverse modification of soil that is well-
drained and sandy overlying strata of sandstone or indurated caliche
with a high gypsum concentration. However, designating critical habitat
along the border would not impact CBP's ability to engage in border
security operations in these areas.
Public Comments
We received numerous comments that prostrate milkweed is an
important plant for migratory butterflies and should be protected. The
commenters did not provide any new substantial information on prostrate
milkweed's status or threats, and thus our critical habitat designation
and determination that prostrate milkweed meets the definition of an
endangered species under the Act did not change. Below, we provide a
summary of the relevant public comments we received.
(5) Comment: One commenter stated we should designate critical
habitat in the occupied areas along U.S. Highway 83 and immediately,
prior to publishing the final rule, enter into section 7 consultation
with Texas Department of Transportation regarding their vegetation
removal in highway rights-of-way (ROWs).
Our response: As stated in the proposed rule (87 FR 8509; February
15, 2022), the degree and frequency of soil disturbance along U.S.
Highway 83 has caused almost complete replacement of the native plant
community with the introduced, highly invasive buffelgrass (Pennisetum
ciliare). Maintenance operations for the highway, overhead powerlines,
and communication cables located in trenches along the ROW will
continue indefinitely, and it is likely that additional infrastructure
will be installed in the ROW. The prostrate milkweed population in this
ROW has declined from about 200 individuals, when it was discovered in
1988, to 3 or fewer individuals during the last 13 years. Further, PBFs
4 and 5 are no longer present along this improved highway ROW, and
therefore we are not designating this area as critical habitat for the
prostrate milkweed. We are also not including this area as unoccupied
critical habitat because it located along a ROW with continuous
disturbance that the species cannot withstand, and thus we are
reasonably certain that this area will not contribute to the
conservation of the species.
(6) Comment: One commenter stated that the Service and Texas
Department of Transportation should remove buffelgrass and plant native
species.
Our response: Addressing nonnative, invasive species may be
valuable in conserving the prostrate milkweed. However, buffelgrass is
an extremely difficult plant to control and manage. Efforts to
eradicate buffelgrass in highway ROWs are unlikely to succeed because
these areas are continuously disturbed for ROW operations and
maintenance, making it difficult for native plants to establish and
persist, and creating ideal circumstances for buffelgrass to
reestablish. Therefore, we are focusing efforts on the conservation of
prostrate milkweed in areas that contain the PBFs, including the
absence of buffelgrass, where special management is likely to be
effective.
(7) Comment: One commenter stated that we should remove PBFs 4
(vegetation composition that includes abundant, diverse pollen and
nectar plants and healthy populations of native bee and wasp species)
and 5 (less than 20 percent cover of buffelgrass) because all occupied
areas should be designated as critical habitat. They state that because
the species' overall viability requires conservation of all populations
[[Page 12575]]
and genetic diversity, each remaining plant can contribute to genetic
diversity if managed scientifically. Therefore, the commenter writes
that no plants should be sacrificed because their habitat is suffering
from adverse modification or undergoing outright destruction.
Our response: The Act does not define occupied critical habitat as
all areas with the species present. Rather, the Act defines occupied
critical habitat as the specific areas within the geographical area
occupied by the species, at the time it is listed, on which are found
those PBFs (I) essential to the conservation of the species and (II)
which may require special management considerations or protection (16
U.S.C. 1532(5)(A)(i)). Occupied areas do not need to include all of the
PBFs essential to the conservation of the species but must contain at
least one. Using the best available scientific information, we have
determined the PBFs that are essential to the conservation of prostrate
milkweed (for more information, see Physical or Biological Features
Essential to the Conservation of the Species, below). These include
vegetation composition that includes abundant, diverse pollen and
nectar plants and healthy populations of native bee and wasp species,
and areas that have less than 20 percent cover of buffelgrass. Special
management can also help restore the critical habitat areas that are
lacking some of the PBFs. Accordingly, we are focusing our conservation
efforts for prostrate milkweed in areas that contain at least one PBF
where special management is likely to be effective. Special management
considerations may include prescribed burning, grazing, and/or brush
thinning; nonnative, invasive grass control; protection from activities
that disturb the soil; and propagation and reintroduction of plants in
restorable areas. Furthermore, plants in areas that are not designated
as critical habitat may still contribute to genetic diversity of the
species and will receive any protections due to listing, even if those
areas are not designated as critical habitat.
I. Final Listing Determination
Background
Please refer to the SSA report and the February 15, 2022, proposed
rule (87 FR 8509) for a full summary of species information. Both are
available on our Southwest Region website at <a href="https://www.fws.gov/about/region/southwest">https://www.fws.gov/about/region/southwest</a> and at <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No.
FWS-R2-ES-2021-0041.
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and the implementing
regulations in title 50 of the Code of Federal Regulations set forth
the procedures for determining whether a species is an endangered
species or a threatened species, issuing protective regulations for
threatened species, and designating critical habitat for endangered and
threatened species. In 2019, jointly with the National Marine Fisheries
Service, the Service issued a final rule that revised the regulations
in 50 CFR part 424 regarding how we add, remove, and reclassify
endangered and threatened species and the criteria for designating
listed species' critical habitat (84 FR 45020; August 27, 2019). On the
same day, the Service also issued final regulations that, for species
listed as threatened species after September 26, 2019, eliminated the
Service's general protective regulations automatically applying to
threatened species the prohibitions that section 9 of the Act applies
to endangered species (84 FR 44753; August 27, 2019).
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 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 we can
reasonably determine that both the future threats and the species'
responses to those threats are likely. In other words, the foreseeable
future is the period of time in which we can make reliable predictions.
``Reliable'' does not mean ``certain''; it means sufficient to provide
a reasonable degree of confidence in the prediction. Thus, a prediction
is reliable if it is reasonable to depend on it when making decisions.
It is not always possible or necessary to define the 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
[[Page 12576]]
relevant to assessing the species' biological response include species-
specific factors such as lifespan, reproductive rates or productivity,
certain behaviors, and other demographic factors.
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent our decision
on whether the species should be listed as an endangered or threatened
species under the Act. However, it does provide the scientific basis
that informs our regulatory decisions, which involve the further
application of standards within the Act and its implementing
regulations and policies.
To assess prostrate milkweed viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency is the ability of the species to withstand environmental and
demographic stochasticity (for example, wet or dry, warm or cold
years), redundancy is the ability of the species to withstand
catastrophic events (for example, droughts, large pollution events),
and representation is the ability of the species to adapt to both near-
term and long-term changes in its physical and biological environment
(for example, climate conditions, pathogens). In general, species
viability will increase with increases in resiliency, redundancy, and
representation (Smith et al. 2018, p. 306). Using these principles, we
identified the species' ecological requirements for survival and
reproduction at the individual, population, and species levels, and
described the beneficial and risk factors influencing the species'
viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time. We use this information to inform our regulatory
decision.
The following is a summary of the key results and conclusions from
the SSA report; the full SSA report can be found at Docket FWS-R2-ES-
2021-0041 on <a href="https://www.regulations.gov">https://www.regulations.gov</a> and at <a href="https://www.fws.gov/office/texas-coastal-ecological-services">https://www.fws.gov/office/texas-coastal-ecological-services</a>.
Summary of Biological Status and Threats
In this discussion, we review the biological condition of the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability.
For the prostrate milkweed to maintain viability, its populations
or some portion thereof must have sufficient resiliency, redundancy,
and representation. Several factors influence the resiliency of
prostrate milkweed populations, including abundance and recruitment
rate, in addition to elements of the species' habitat that determine
whether prostrate milkweed populations can grow. These resiliency
factors and habitat elements are discussed in detail in the SSA report
and summarized here.
Species Needs
Abundance
Prostrate milkweed abundance is difficult to assess due to its
ability to remain dormant for multiple years until the necessary
environmental conditions occur. Individual plants may emerge only a few
times per decade, and not all plants will emerge at the same time
(Price 2005, pers. comm.; Best 2017, pers. comm.). Therefore, we
considered populations to be extant if plants have been observed within
the past 40 years (Strong 2020, pers. comm.) and with available habitat
(i.e., not paved over) or with restorable habitat (i.e., nonnative
grass could be removed).
Populations of prostrate milkweed must be large enough to have a
high probability of enduring random demographic and environmental
variation. For example, species or populations may be considered more
vulnerable when the probability of persisting 100 years is less than 90
percent (Mace and Lande 1991, p. 151). This metric of population
resilience, called minimum viable population (MVP), refers to the
smallest population size that has a high probability of surviving over
a specified period. Calculations of MVP require data that are not
currently available for prostrate milkweed. As a practical alternative,
we estimated the likely MVP range of prostrate milkweed by comparing it
to species with similar life-history traits for which MVPs have been
calculated (Pavlik 1996, p. 137). This method estimates a highly
resilient population if prostrate milkweed has 1,600 or more adult
individuals (Service 2020, p. 38).
Determinations of MVP usually consider the effective population
size, rather than total number of individuals (Pavlik 1996, entire); 10
genetically identical individuals (for example, clones or ramets) would
have an effective population size of one. Because prostrate milkweed is
likely self-incompatible and does not appear to form clonal colonies,
the effective population size is likely to be nearly the same as the
total population size.
Recruitment Rate
A stable or increasing population requires recruitment rates that
equal or exceed mortality rates (Service 2020, p. 38). All stages of
recruitment, from flowering and seed production to germination and
establishment, occur when the soil has available moisture. The porous
soils of prostrate milkweed habitat dry quickly after a single heavy
thunderstorm. Based on observations of other perennial forbs (broad-
leaved herbaceous plants) in this ecosystem, recruitment probably
occurs during periods of extended rainfall, meaning multiple rain
events over a period of several weeks (Service 2020, p. 38). These
events are rare in this semiarid region. Consequently, we expect that
successful recruitment may occur only once or a few times per decade.
Similarly, most mortality probably occurs during years of extended
drought. Hence, both recruitment and mortality would have strong pulses
and observed population sizes would vary widely from year to year,
leading to potentially spurious interpretations of demographic trends
(Service 2020, p. 38).
Populations of prostrate milkweed require habitats that also
support healthy populations of large native bees and wasps (Service
2020, p. 38). Native bees in turn require a diversity and abundance of
native forb and shrub species that provide pollen and nectar. Tarantula
hawks (Pepsis spp. and Hemipepsis spp.) may also be important
pollinators of prostrate milkweed; tarantula hawks require healthy
populations of their prey species, tarantulas (Best 2020, pers. comm.).
[[Page 12577]]
Prostrate milkweed populations require competition from grasses and
forbs to be periodically reduced (Service 2020, p. 38). This
requirement, which has been observed in other milkweed species, may be
an adaptation to wildfire (Baum and Sharber 2012, pp. 968-971).
Although mowing or livestock grazing can also reduce competition, it is
likely that prostrate milkweed is adapted to grasslands that were
sustained by periodic wildfires (Service 2020, p. 39).
Canopy Cover
Canopy cover refers to shade from trees, shrubs, prickly pear
cactuses, or tall (taller than 1 meter) grass. Sufficiently resilient
prostrate milkweed populations need an open canopy with little or no
herbaceous cover (Service 2020, p. 3). Therefore, the species may occur
in areas that mimic historical wildfire or grazing, such as along mowed
road ROWs (Service 2020, p. 3).
Ground Cover
Ground cover refers to vegetation growing at the herbaceous layer
(shorter than 1 meter tall) that would compete with prostrate milkweed
plants for resources. Sufficiently resilient prostrate milkweed
populations need an open canopy with little or no herbaceous cover, so
there is little competition with other plants (Service 2020, p. 3).
Risk Factors for Prostrate Milkweed
We reviewed the potential risk factors (i.e., threats, stressors)
that may affect prostrate milkweed now and in the future. In this rule,
we will discuss only those factors in detail that could meaningfully
impact the status of the species. Those risks that are not known to
have effects on prostrate milkweed populations, such as quarrying/
mining, hybridization, pollinator decline, and climate change, are not
discussed here but are evaluated in the SSA report. The primary risk
factors (i.e., threats) affecting the status of prostrate milkweed are:
(1) Competition from introduced invasive grasses (Factor A from the
Act); (2) habitat loss from root-plowing and conversion of native
vegetation to pasture (Factor A); (3) habitat loss from ROW
construction and maintenance from energy development and road and
utility construction (Factor A); (4) habitat loss from border security
development and enforcement activities (Factor A); and (5) the
demographic and genetic consequences of small population sizes and
population fragmentation (Factor E).
Competition From Nonnative, Invasive Grasses
Nonnative, invasive grass species displace native plants by
competing for water, nutrients, and light, and their dense root systems
prevent germination of native plant seeds (Texas Invasives 2019,
unpaginated). Buffelgrass (Pennisetum ciliare) is a perennial
bunchgrass introduced from Africa that is now one of the most abundant
introduced grasses in south Texas, and the most prevalent invasive
grass within the range of prostrate milkweed. Since the 1950s, Federal
and State land management agencies have promoted buffelgrass as a
forage grass in south Texas (Smith 2010, p. 113). Buffelgrass is very
well-adapted to the hot, semi-arid climate of south Texas due to its
drought resistance and ability to aggressively establish in heavily
grazed landscapes (Smith 2010, p. 113). Buffelgrass continues to be
planted in areas affected by drought and overgrazing to stabilize soils
and to increase rangeland productivity. Buffelgrass often creates
homogeneous monocultures by out-competing native plants for essential
resources (Lyons et al. 2013, p. 8), and it produces phytotoxins in the
soil that inhibit the growth of neighboring native plants (Vo 2013,
unpaginated). Furthermore, prescribed burning used for brush control
promotes buffelgrass forage production in south Texas (Hamilton and
Scifres 1982, p. 11).
Most prostrate milkweed plants have been observed where buffelgrass
is absent or at low densities (Eason 2019, pers. comm.; Strong 2019,
pers. comm.). On national wildlife refuge lands, prostrate milkweed was
found in areas where native grass was still dominant, but not where
buffelgrass or woody vegetation was present in dense stands (Best 2005,
p. 3). The unpaved ROWs on private lands in south Texas for oil and gas
wells, wind farms, service roads, pipelines, and powerlines could
benefit prostrate milkweed through the periodic mowing of road margins.
However, disturbed soils along ROWs are rapidly colonized by
buffelgrass.
The Texas Natural Diversity Database (Database) lists invasive
species, primarily buffelgrass, as a pervasive threat of extreme
severity to prostrate milkweed. The Database defines a pervasive threat
as one that affects all or most (71-100 percent) of a species'
populations, occurrences, or extent. An extreme level of severity is
one that is likely to destroy or eliminate occurrences or habitat or
reduce population sizes by 71-100 percent (TXNDD 2016, unpaginated). It
is likely that buffelgrass has negatively impacted all Texas
populations (TXNDD 2019-2020, entire; Eason 2019, pers. comm.;
Kieschnick 2019, pers. comm.). Competition from buffelgrass is the
greatest threat to prostrate milkweed.
Root-Plowing and Conversion of Native Grassland and Savanna
Root-plowing is a brush control method that uses powerful tracked
vehicles to excavate the roots of woody plants with heavy steel subsoil
rippers that dig several feet into the ground. The dead trees and
shrubs are then burned, and the root-plowed soils are planted with
buffelgrass for livestock grazing. Root-plowing and conversion to
buffelgrass pasture is a widely conducted practice in south Texas and
northeast Mexico, occurring in much of the potential habitat of
prostrate milkweed. Extensive areas of recently root-plowed lands can
be identified in aerial photographs. These practices have been and are
still subsidized by the United States Department of Agriculture (USDA)
Natural Resources Conservation Service and its precursor, the USDA Soil
Conservation Service.
Root-plowing temporarily reduces the encroachment of woody plants
into the grassland component of former savannas. The conversion of
native habitats to improved pastures dominated by buffelgrass or other
introduced grasses greatly reduces the abundance and diversity of most
native grass and forb species (Woodin et al. 2010, p. 1). Very few, if
any, prostrate milkweed plants survive following root-plowing and
buffelgrass planting. This is likely due to the excavation and
desiccation of most tubers during root-plowing; subsequently, the few
remaining individuals decline due to competition from dense buffelgrass
cover.
Conversely, prostrate milkweed occurs in well-managed rangelands,
provided that the soil was not previously root-plowed or otherwise
disturbed (Service 2020, p. 53). Most milkweed species are unpalatable
to cattle, and often increase in abundance on grazed lands. Livestock,
including cattle, sheep, and horses, graze preferentially on grasses
and forbs, including buffelgrass, and on nontoxic herbaceous plants;
therefore, livestock grazing may reduce competition with prostrate
milkweed from these plants (Service 2020, p. 41). In addition to
grazing, livestock may also reduce competition with prostrate milkweed
by trampling herbaceous plants (Service 2020, p. 41). Because prostrate
milkweed is often observed in the wheel ruts of dirt roads, it appears
to be
[[Page 12578]]
unusually tolerant of trampling; thus, the effect of livestock
trampling is minimal (Service 2020, pp. 41-42). Periodic livestock
grazing reduces competition from native and introduced grasses. In
South Texas, over-grazed rangelands typically become invaded by woody
plants, reducing the habitat suitability for prostrate milkweed. Hence,
management practices that promote sustainable grazing of native grasses
are beneficial to prostrate milkweed (Service 2020, p. 41).
Road and ROW Construction and Maintenance
Oil and gas exploration and wind energy development are occurring
at a rapid pace in Starr and Zapata Counties, Texas. Seismic
exploration and the construction of roads and caliche pads for oil and
gas wells and wind turbines can destroy plants and their habitats
within the construction footprint (Reemts et al. 2014, pp. 123, 125;
Leslie 2016, p. 49). Additionally, graded service roads and other
permanent structures may indirectly affect the hydrology of surrounding
habitats by diverting and channeling water through drainage culverts.
Invasive buffelgrass quickly colonizes disturbed roadsides, then
invades adjacent habitats. Heavy vehicle traffic during oil and gas
well drilling and wind farm construction may increase the frequency of
road maintenance, such as grading or widening (Pe[ntilde]a 2019, pers.
comm.). Grading or blading a caliche road involves scraping the road's
surface with a large heavy blade to remove ruts and roadside
vegetation. Increased frequency of road maintenance that removes above-
ground portions of plants could reduce or eliminate prostrate milkweed
flower and fruit production. Conversely, grading or blading of caliche
roads conducted during the milkweed's dormant periods may benefit the
species by temporarily reducing competition from grasses and forbs
(TXNDD 2019, p. 11). TXNDD (2019) ranks road expansion as a pervasive
threat (affects all or most (71-100 percent) of a species' populations,
occurrences, or extent) of extreme severity to prostrate milkweed.
All or parts of nine prostrate milkweed occurrences are in the
margins of improved highway ROWs. All highway ROW populations have
declined since they were first observed, likely due to the frequency of
soil disturbance and invasive grass competition (Service 2020, p. 40).
In addition, from 2010 to 2012, Texas Department of Transportation
(TxDOT) widened segments of U.S. Highway 83 that affected at least
three known prostrate milkweed sites: Arroyo del Tigre Grande, Mission
Mier a Visita, and Arroyo Roma (Strong and Williamson 2015, p. 51;
Paradise 2019, pers. comm.). TxDOT has also scheduled additional road
widening or construction at five known prostrate milkweed populations:
Arroyo del Tigre Grande, Arroyo del Tigre Chiquito, Arroyo de los
Mudos, Mission Mier a Visita, and Arroyo Roma (TxDOT 2019,
unpaginated). U.S. Customs and Border Protection (CBP) has scheduled
road improvements at the prostrate milkweed population site located in
the Arroyo Morteros tract of the Lower Rio Grande Valley National
Wildlife Refuge (NWR) (Vallejo 2019, pers. comm.).
In contrast, all or parts of three prostrate milkweed occurrences
are in the margins of unpaved rural roads. These relatively stable
populations have persisted in narrow strips of native vegetation
between the gravel or caliche roadbeds and the fence lines of adjacent
private properties. The soils in these narrow, naturally vegetated
strips have never been excavated, and they have relatively little
buffelgrass cover.
The installation of natural gas pipelines and fiber-optic cables
has removed prostrate milkweed plants in the Dolores and Arroyo del
Tigre Chiquito populations in the past (Damude and Poole 1990, p. 32;
Boydston 1993, unpaginated; Campos 1993, unpaginated). In 1995,
Southwestern Bell installed a fiber-optic cable in the Highway 83 ROW,
2.6 miles south of the Webb-Zapata County line, which removed at least
100 individuals at the Dolores population (Service 1995, p. 1). In
1993, prior to the fiber-optic cable installation, this population was
estimated to have 100 to 200 individuals (TXNDD 2019, unpaginated) and
was the largest known population of prostrate milkweed.
In summary, prostrate milkweed faces risks from ROWs and road
construction and maintenance associated with oil and gas activities,
wind energy development, and utility and pipeline corridor
construction.
Border Security Development and Enforcement Activities
All known Texas populations of prostrate milkweed are within 9
miles (14.5 kilometers) of the U.S.-Mexico border. To address border
security concerns, additional border barrier construction was proposed
in the Rio Grande Valley, including the Arroyo Morteros tract of the
Lower Rio Grande Valley NWR. Should border wall construction occur, and
depending on the alignment, construction could remove prostrate
milkweed plants that occur within the construction footprint.
Additionally, CBP plans to improve roads across this tract (Vallejo
2019, pers. comm.) and may also install new drag strips along existing
roads. Drag strips are 13- to 16-foot (ft) (4- to 5-meter) -wide swaths
cleared of all vegetation and regularly scraped to keep the soil
surface loose, to detect recent foot traffic. Due to the high gypsum
content, soils in this area are extremely vulnerable to gully erosion.
Hence, the unvegetated, continually disturbed drag strips may
exacerbate soil erosion and impact a much wider area. The Database
ranks drag strip construction within prostrate milkweed populations as
a small threat (defined as a threat that affects 1-10 percent of the
total population or occurrences or extent) with an extreme level of
severity (likely to destroy or eliminate occurrences or habitat, or
reduce population by 71-100 percent) (TXNDD 2016, unpaginated).
Consequently, the construction of border barriers, roads, and drag
strips are potential threats of high magnitude to prostrate milkweed
populations, depending on their alignment, design, and proximity to
populations and local topography.
Native plant populations are legally protected on NWRs, and, if
listed under the Act, these plants have additional legal protections
from federally funded or regulated actions. However, a provision of the
REAL ID Act of 2005 (Pub. L. 109-13, 119 Stat. 302) gives the Secretary
of Homeland Security authority to waive other Federal laws, including
the Endangered Species Act, to expedite construction of border
barriers. Therefore, border barrier construction on private and public
lands is exempt from consultation with the Service under section 7 of
the Act. During the previous phase of border barrier construction,
beginning in 2007, the Department of Homeland Security (DHS) and the
Service coordinated to establish best management practices for the
federally listed plants and animals in the project impact area (DHS
2008, entire); nevertheless, these best management practices did not
address prostrate milkweed.
Small Population Sizes and Population Fragmentation
Small, isolated populations are more vulnerable to catastrophic
losses caused by random fluctuations in recruitment (demographic
stochasticity) or variations in rainfall or other environmental factors
(environmental stochasticity) (Service 2016, p. 20). Small,
reproductively isolated populations are susceptible to the loss of
genetic diversity, to genetic drift, and
[[Page 12579]]
to inbreeding (Barrett and Kohn 1991, pp. 3-30). Due to the small size
and isolation of prostrate milkweed populations, several may already
suffer from genetic bottlenecks, genetic drift, inbreeding, and loss of
allelic diversity.
In addition to population size, it is likely that population
density and connectivity also influence population viability (Service
2020, p. 51). Prostrate milkweed is very likely to be an obligate
outcrosser (fertilization between different individuals), as are most
other Asclepias species, which requires that genetically compatible
individuals be clustered within the forage range of the native
pollinators for successful reproduction (Service 2020, p. 51). While
the specific pollinators of this species have not been revealed, they
are likely to be large bees or wasps, and the forage range could be up
to several kilometers. If this is the case, sufficiently viable
populations of prostrate milkweed could be dispersed at very low
densities over relatively large areas, provided that they lie within
fairly contiguous habitats that are traversed by pollinating insects.
Thus, the small, isolated clusters of prostrate milkweed that have been
documented, principally along public roads that slice through large
expanses of potential habitat on private lands, may represent only tiny
fractions of larger, highly dispersed populations (Service 2020, p.
51).
Based strictly on the available scientific data, the documented
populations of prostrate milkweed are all far below the estimated MVP
level and may be affected by the demographic and genetic consequences
of small population sizes and by fragmentation of populations.
Summary
Our analysis of the past, current, and future influences on the
needs of prostrate milkweed for long-term viability revealed several
threats that pose a risk to current and future viability: competition
from introduced invasive grass (buffelgrass); root-plowing of
rangelands; development of new oil and gas wells, wind energy farms,
roads, pipelines, and utility corridors; development of new border
barriers and drag strips; and the demographic and genetic consequences
of small population sizes and population fragmentation. Conversely,
well-managed livestock grazing of rangeland is compatible with
management of prostrate milkweed habitat and may benefit this species.
Species Condition
The current condition of prostrate milkweed considers the status
and risks to its populations. In the SSA report, for each population,
we developed and assigned condition categories for two demographic
factors and two habitat factors that are important for viability of
prostrate milkweed. The condition scores for each factor were then used
to estimate the probability of persistence over the next 30 years. We
chose 30 years because it is within the range of available climate
change model forecasts where we can reasonably foresee the future
condition of the species. Populations were rated high, moderate, or low
when that probability is greater than 90 percent, between 60 and 90
percent, or between 10 and 60 percent, respectively. Functionally
extirpated populations are not expected to persist over 30 years or are
already extirpated.
There are 24 populations of prostrate milkweed remaining in Starr
and Zapata Counties, Texas, and in Tamaulipas and eastern Nuevo
Le[oacute]n, Mexico (see table 1, below). The species' range extends
more than 200 miles (320 kilometers) from northwest to southeast. In
Texas, one population, Dolores, is somewhat isolated in northern Zapata
County, with the nearest known population approximately 25 miles (40
kilometers) away. In Mexico, eight known populations are in isolated
pockets widely scattered in Tamaulipas and eastern Nuevo Le[oacute]n.
However, botanists have only surveyed a small proportion of the
species' range. Furthermore, the species remains dormant and
undetectable except for short periods of time after infrequent, heavy
rainfall. Consequently, although the species is certainly rare, its
actual abundance is difficult to determine. It is likely that,
historically, populations occurred between these areas, connecting the
populations in Texas and Mexico. Because they are widely separated,
natural gene flow or reestablishment following disturbance is very
unlikely between the 24 known populations. Based upon our analysis of
current conditions of these 24 extant populations, none are in high
condition, 5 are in moderate condition, and 19 are in low condition.
Table 1--Summary of Current Condition for Prostrate Milkweed
------------------------------------------------------------------------
Population name Current condition
------------------------------------------------------------------------
Dolores.................................. Low.
14493.................................... Low.
14491.................................... Low.
Arroyo del Tigre Grande.................. Moderate.
Arroyo del Tigre Chiquito................ Low.
FM 2098.................................. Low.
Falcon................................... Low.
Los Alvaros.............................. Moderate.
Arroyo Morteros Tract.................... Moderate.
Los Arrieros Loop........................ Low.
Arroyo de los Mudos...................... Low.
Mission Mier a Visita.................... Low.
San Juli[aacute]n Road................... Moderate.
FM 3167.................................. Moderate.
Arroyo Roma.............................. Low.
Arroyo Ramirez Tract..................... Low.
Rancho La Coma........................... Low.
Road to Guerrero Viejo................... Low.
Carboneras............................... Low.
Punta de Alambre......................... Low.
Intersection of 101-180.................. Low.
Rio El Cat[aacute]n...................... Low.
Rancho Loreto North...................... Low.
Rancho Loreto South...................... Low.
------------------------------------------------------------------------
The two demographic factors used to analyze resiliency of prostrate
milkweed populations are abundance and recruitment rate. Related to
abundance, a highly resilient population of prostrate milkweed has
1,600 or more adult individuals, a moderately resilient population has
from 800 to 1,600 mature individuals, and a population with fewer than
800 mature individuals has low resilience (Service 2020, p. 38).
Prostrate milkweed populations have high resiliency if the recruitment
rate is greater than or equal to 25 percent of individuals producing
viable seeds per year. Moderately resilient populations have
recruitment rates of between 15 and 24 percent per year, and
populations with low resiliency have recruitment rates of less than 15
percent per year (Service 2020, p. 57).
The two habitat factors used to analyze resiliency of prostrate
milkweed populations were canopy cover and groundcover. Highly
resilient populations have less than 30 percent canopy cover and have
all bare ground or are sparsely vegetated with mostly native grass and/
or forbs. Moderately resilient populations have between 30 and 60
percent canopy cover and are sparsely vegetated with a mixture of
native and nonnative grasses and/or forbs. Minimally resilient
populations have between 61 and 100 percent canopy cover and a dense
groundcover of native or introduced grasses and forbs and little or no
bare ground (Service 2020, p. 57).
Redundancy is low for this species due to low numbers of
populations in moderate to high condition for
[[Page 12580]]
resiliency, making prostrate milkweed populations vulnerable to
extirpations from catastrophic events. Because buffelgrass invasion is
prevalent in this area, ecological diversity among the known
populations is limited and thus species representation is low.
Furthermore, the populations are isolated and widespread across the
range, and therefore gene flow among the populations is limited. As a
consequence of these current conditions, the viability of the prostrate
milkweed now primarily depends on maintaining and restoring the
remaining isolated populations and potentially discovering or
reintroducing new populations where feasible.
As part of the SSA, we also developed three plausible future
scenarios to capture the range of uncertainties regarding future
threats and the projected responses by the prostrate milkweed. Our
scenarios included a continuing conditions scenario, which incorporated
the current risk factors continuing on the same trajectory that they
are on now. We also evaluated a conservation scenario and a scenario
with increased stressors. Because we determined that the current
condition of the prostrate milkweed is consistent with an endangered
species (see Determination of Prostrate Milkweed's Status, below), we
are not presenting the results of the future scenarios in this rule.
Please refer to the SSA report (Service 2020, entire) for the full
analysis of future scenarios.
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have not
only analyzed individual effects on the species, but we have also
analyzed their potential cumulative effects. We incorporate the
cumulative effects into our SSA analysis when we characterize the
current and future condition of the species. To assess the current and
future condition of the species, we undertake an iterative analysis
that encompasses and incorporates the threats individually and then
accumulates and evaluates the effects of all the relevant factors that
may be influencing the species, including threats and conservation
efforts. Because the SSA framework considers not just the presence of
the factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative effects analysis.
Determination of Prostrate Milkweed's Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines an ``endangered species'' as a
species in danger of extinction throughout all or a significant portion
of its range, and a ``threatened species'' as a species likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether a species meets the definition of endangered species
or threatened species because of any of the following factors: (A) The
present or threatened destruction, modification, or curtailment of its
habitat or range; (B) Overutilization for commercial, recreational,
scientific, or educational purposes; (C) Disease or predation; (D) The
inadequacy of existing regulatory mechanisms; or (E) Other natural or
manmade factors affecting its continued existence.
Status Throughout All of Its Range
After evaluating threats to the species and assessing the
cumulative effect of the threats under the Act's section 4(a)(1)
factors, we found that, of the 24 known prostrate milkweed populations
remaining, 19 are small, are isolated, and have low resiliency; 5 have
moderate resiliency and connection to other populations; and none have
high resiliency. Several factors pose threats to prostrate milkweed,
including competition from introduced, invasive grass; habitat loss and
degradations from root-plowing and conversion of native vegetation to
improved buffelgrass pasture; habitat loss from ROW construction and
maintenance from energy development and road and utility construction;
habitat loss from border security development and enforcement
activities (Factor A from the Act); and the demographic and genetic
consequences of small population sizes (Factor E).
All the aforementioned threats are currently affecting the known
populations of prostrate milkweed. Buffelgrass has already negatively
impacted all the Texas populations (TXNDD 2019-2020, entire; Eason
2019, pers. comm.; Kieschnick 2019, pers. comm.) and will continue to
do so in the future. Habitat loss and degradation from root-plowing and
conversion of native vegetation to improved buffelgrass pasture has
also already been occurring for many years (Service 2020, p. 40).
Habitat loss from ROW construction and maintenance associated with
energy development and road and utility construction has already been
observed from oil and gas development occurring in Zapata County. As of
November 2019, no wind turbines, oil or gas well pads, pipelines, or
energy service roads have been constructed directly within known
prostrate milkweed populations. However, some Starr County prostrate
milkweed populations are less than 2 kilometers (1.2 miles) from
existing wind turbines (Service 2020, pp. 42-43), and a few wind energy
farms are expected to be constructed in the future, which could lead to
additional habitat loss. Habitat loss from border security development
and enforcement activities has occurred in recent years and is expected
to continue. Finally, the demographic and genetic consequences of small
population sizes are a current threat to the prostrate milkweed. This
situation is not expected to change into the future.
In addition to the current threats, redundancy and representation
are also limited. There are 24 known populations that are distributed
widely across the species' range, and the majority of those populations
are currently in low condition. Should a catastrophic event occur, the
populations are vulnerable to extirpation because they are small and
isolated from each other. The small, reproductively isolated
populations are also susceptible to the loss of genetic diversity,
genetic drift, and inbreeding due to random fluctuations in recruitment
(demographic stochasticity) or variations in rainfall or other
environmental factors (environmental stochasticity). Because of the
species' overall current resiliency, redundancy, and representation,
prostrate milkweed is currently in danger of extinction throughout all
of its range. We do not find that the species meets the Act's
definition of a threatened species because the species has already
shown low levels in current resiliency, redundancy, and representation
due to the threats mentioned above. Thus, after assessing the best
available information, we determine that prostrate milkweed is in
danger of extinction 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. We have
[[Page 12581]]
determined that the prostrate milkweed is in danger of extinction
throughout all of its range and accordingly did not undertake an
analysis of any significant portions of its range. Because the
prostrate milkweed warrants listing as endangered throughout all of its
range, our determination does not conflict with the decision in Center
for Biological Diversity v. Everson, 435 F. Supp. 3d 69 (D.D.C. 2020)
(Everson), which vacated the provision of the Final Policy on
Interpretation of the Phrase ``Significant Portion of Its Range'' in
the Endangered Species Act's Definitions of ``Endangered Species'' and
``Threatened Species'' (Final Policy) (79 FR 37578, July 1, 2014)
providing that if the Services determine that a species is threatened
throughout all of its range, the Services will not analyze whether the
species is endangered in a significant portion of its range.
Determination of Status
Our review of the best available scientific and commercial
information indicates that the prostrate milkweed meets the Act's
definition of an endangered species. Therefore, we are listing
prostrate milkweed as an endangered species in accordance with sections
3(6) 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 as a listed species,
planning and implementation of recovery actions, requirements for
Federal protection, and prohibitions against certain practices.
Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies,
including the Service, and the prohibitions against certain activities
are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The goal of this process is to restore listed
species to a point where they are secure, self-sustaining, and
functioning components of their ecosystems.
Recovery planning consists of preparing draft and final recovery
plans, beginning with the development of a recovery outline and making
it available to the public within 30 days of a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions and describes the process to be used to
develop a recovery plan. Revisions of the plan may be done to address
continuing or new threats to the species, as new substantive
information becomes available. The recovery plan also identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Recovery teams (composed of
species experts, Federal and State agencies, nongovernmental
organizations, and stakeholders) are often established to develop
recovery plans. When completed, the recovery outline, draft recovery
plan, and the final recovery plan will be available on our website
(<a href="https://www.fws.gov/program/endangered-species">https://www.fws.gov/program/endangered-species</a>), or from our Texas
Coastal Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
Once this species is listed, funding for recovery actions will be
available from a variety of sources, including Federal budgets, State
programs, and cost-share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, the State of Texas will be eligible
for Federal funds to implement management actions that promote the
protection or recovery of the prostrate milkweed. Information on our
grant programs that are available to aid species recovery can be found
at: <a href="https://www.fws.gov/service/financial-assistance">https://www.fws.gov/service/financial-assistance</a>.
Please let us know if you are interested in participating in
recovery efforts for this species. Additionally, we invite you to
submit any new information on this species whenever it becomes
available and any information you may have for recovery planning
purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is listed as an endangered or
threatened species and with respect to its critical habitat, if any is
designated. Regulations implementing this interagency cooperation
provision of the Act are codified at 50 CFR part 402. Section 7(a)(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 any endangered or threatened species or destroy
or adversely modify its critical habitat. If a Federal action may
affect a listed species or its critical habitat, the responsible
Federal agency (action agency) must enter into consultation with us.
Federal agency actions within the species' habitat that may require
conference, consultation, or both as described in the preceding
paragraph include management and any other landscape-altering
activities on Federal lands administered by the U.S. Fish and Wildlife
Service.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered plants.
The prohibitions of section 9(a)(2) of the Act, codified at 50 CFR
17.61, make it illegal for any person subject to the jurisdiction of
the United States to import or export; remove and reduce to possession
from areas under Federal jurisdiction; maliciously damage or destroy on
any such area; remove, cut, dig up, or damage or destroy 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; deliver,
receive, carry, transport, or ship in interstate or foreign commerce,
by any means whatsoever and in the course of a commercial activity; or
sell or offer for sale in interstate or foreign commerce an endangered
plant. Certain exceptions apply to employees of the Service, the
National Marine Fisheries Service, other
[[Page 12582]]
Federal land management agencies, and State conservation agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered plants under certain circumstances. Regulations
governing permits are codified at 50 CFR 17.62. With regard to
endangered plants, a permit may be issued for scientific purposes or
for enhancing the propagation or survival of the species. The statute
also contains certain exemptions from the prohibitions, which are found
in sections 9 and 10 of the Act.
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 the listed
species. Based on the best available information, the following actions
are unlikely to result in a violation of section 9, if these activities
are carried out in accordance with existing regulations and permit
requirements; this list is not comprehensive:
(1) Normal agricultural and silvicultural practices, including
herbicide and pesticide use, that are carried out in accordance with
any existing regulations, permit and label requirements, and best
management practices;
(2) Normal residential landscaping activities on non-Federal lands;
and
(3) Recreational use with minimal ground disturbance.
Based on the best available information, the following activities
may potentially result in a violation of section 9 of the Act if they
are not authorized in accordance with applicable law; this list is not
comprehensive:
(1) Unauthorized handling, removing, trampling, or collecting of
prostrate milkweed on Federal land; and
(2) Removing, cutting, digging up, or damaging or destroying
prostrate milkweed in knowing violation of any law or regulation of the
State of Texas or in the course of any violation of a State criminal
trespass law.
Questions regarding whether specific activities would constitute a
violation of section 9 of the Act should be directed to the Texas
Coastal Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).
II. Critical Habitat
Background
Although this critical habitat designation was proposed when the
regulatory definition of habitat (85 FR 81411; December 16, 2020) and
the 4(b)(2) exclusion regulations (85 FR 82376; December 18, 2020) were
in place and in effect, those two regulations have been rescinded (87
FR 37757; June 24, 2022 and 87 FR 43433; July 21, 2022) and no longer
apply to any designations of critical habitat. Therefore, for this
final rule designating critical habitat for the prostrate milkweed, we
apply the regulations at 424.19 and the 2016 Joint Policy on 4(b)(2)
exclusions (81 FR 7226; February 11, 2016).
Section 4(a)(3) of the Act requires that, to the maximum extent
prudent and determinable, we designate a species' critical habitat
concurrently with listing the species. None of the situations
identified at 50 CFR 424.12(a) for when designation of critical habitat
would be not prudent or not determinable is present. We therefore are
designating critical habitat for prostrate milkweed concurrently with
listing it.
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical and biological features (PBFs)
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation also does not allow the
government or public to access private lands. Such designation does not
require implementation of restoration, recovery, or enhancement
measures by non-Federal landowners. Where a landowner requests Federal
agency funding or authorization for an action that may affect a listed
species or critical habitat, the Federal agency would be required to
consult with the Service under section 7(a)(2) of the Act. However,
even if the Service were to conclude that the proposed activity would
likely result in destruction or adverse modification of the critical
habitat, the Federal action agency and the landowner are not required
to abandon the proposed activity, or to restore or recover the species;
instead, they must implement ``reasonable and prudent alternatives'' to
avoid destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain PBFs (1) which are essential to the conservation of the species
and (2) which may require special management considerations or
protection. For these areas, critical habitat designations identify, to
the extent known using the best scientific data available, those PBFs
that are essential to the conservation of the species (such as space,
food, cover, and protected habitat).
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed,
[[Page 12583]]
upon a determination that such areas are essential for the conservation
of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report and information developed during the
listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and (3) the prohibitions found in section 9 of the Act.
Federally funded or permitted projects affecting listed species outside
their designated critical habitat areas may still result in jeopardy
findings in some cases. These protections and conservation tools will
continue to contribute to recovery of this species. Similarly, critical
habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans
(HCPs), or other species conservation planning efforts if new
information available at the time of these planning efforts calls for a
different outcome.
Physical or Biological Features Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the PBFs that are essential
to the conservation of the species and which may require special
management considerations or protection. The regulations at 50 CFR
424.02 define ``physical or biological features essential to the
conservation of the species'' as the features that occur in specific
areas and that are essential to support the life-history needs of the
species, including, but not limited to, water characteristics, soil
type, geological features, sites, prey, vegetation, symbiotic species,
or other features. A feature may be a single habitat characteristic or
a more complex combination of habitat characteristics. Features may
include habitat characteristics that support ephemeral or dynamic
habitat conditions. Features may also be expressed in terms relating to
principles of conservation biology, such as patch size, distribution
distances, and connectivity. For example, physical features essential
to the conservation of the species might include gravel of a particular
size required for spawning, alkaline soil for seed germination,
protective cover for migration, or susceptibility to flooding or fire
that maintains necessary early-successional habitat characteristics.
Biological features might include prey species, forage grasses,
specific kinds or ages of trees for roosting or nesting, symbiotic
fungi, or a particular level of nonnative species consistent with
conservation needs of the listed species. The features may also be
combinations of habitat characteristics and may encompass the
relationship between characteristics or the necessary amount of a
characteristic essential to support the life history of the species.
In considering whether features are essential to the conservation
of the species, we may consider an appropriate quality, quantity, and
spatial and temporal arrangement of habitat characteristics in the
context of the life-history needs, condition, and status of the
species. These characteristics include, but are not limited to, space
for individual and population growth and for normal behavior; food,
water, air, light, minerals, or other nutritional or physiological
requirements; cover or shelter; sites for breeding, reproduction, or
rearing (or development) of offspring; and habitats that are protected
from disturbance.
Geological Substrate and Soils
Prostrate milkweed grows in well-drained sandy soils of the
Tamaulipan shrubland region of south Texas and northeast Mexico
(Service 2020, pp. 22-26). In Starr and Zapata Counties, Texas, the
soils of documented sites overlie Eocene and Oligocene sandstones and
clays of the Laredo, Yegua, and Jackson geological formations (Stoeser
et al. 2005, unpaginated). In some occupied sites, a stratum of
indurated caliche may also be present; in south Texas, caliche refers
to soil strata of precipitated calcium carbonate formed during the
early Pliocene (Spearing 1998, pp. 258, 398; Baskin and Hulbert, Jr.
2008, p. 93). Soil types of these occupied sites include deep eolian
Hebbronville sands, Copita fine sandy loam, Brennan fine sandy loam,
eroded Maverick soils, Catarina clay, and Zapata soils (USDA 1972,
entire; USDA 2011, entire). Elevated levels of gypsum are present at
some sites.
The climate of the Tamaulipan shrubland region is subtropical and
semi-arid. Much of the region's precipitation occurs during infrequent
periods of heavy rainfall that interrupt prolonged spells of very hot,
dry weather. Rainfall readily infiltrates into the well-drained sandy
soils of prostrate milkweed habitats, but moisture does not persist
long in these soils. Many occupied sites have underlying strata of
sandstone; these barriers to root growth limit the establishment of
trees and taller shrubs. The growth of many plant species is also
limited by high soil gypsum concentrations in some occupied sites. The
rapid drying of soil, impenetrable rock strata, and high gypsum are all
factors that reduce competition from woody plants, grasses, and other
herbaceous plants.
Prostrate milkweed forms tubers underground that are able to
persist in a dormant condition for one to several
[[Page 12584]]
years. The species responds very quickly to rainfall; the tubers sprout
new stems that emerge, flower, and set seed in a matter of weeks, and
the plants store carbohydrates, minerals, and water in tubers. Then the
above-ground portions die back during hot, dry weather. Prostrate
milkweed does not occur in areas of higher rainfall or where moisture
persists longer in deeper silty or clayey soils. The species does not
persist when occupied sites develop a dense shrub overstory or dense
cover of grasses. We conclude that prostrate milkweed is endemic to
sites where it escapes competition from other plants through its unique
adaptation to ephemeral soil moisture, prolonged drought, and tolerance
of high gypsum concentrations.
Therefore, well-drained sandy soil overlying sandstone or indurated
caliche strata is an essential physical feature of prostrate milkweed
critical habitats. A high soil gypsum concentration contributes to the
habitat suitability of some sites by reducing competition and is an
essential physical feature.
Ecological Community
Within the Tamaulipan shrubland ecological region, prostrate
milkweed inhabits arid subtropical grasslands and shrub savannas. It
requires an open canopy, where there is little or no shade from trees
and shrubs, and relatively little competition from grasses and
herbaceous plants; the estimated combined cover of woody plants,
grasses, and herbaceous plants at a site in Zapata County was less than
30 percent (Damude and Poole 1990, p. 16). It is likely that naturally
occurring wildfires, in the past, maintained the relatively open
structure of these plant communities (Scifres and Hamilton 1993, pp. 8-
21). We have observed an increased abundance of other Texas species of
Asclepias, including antelope horns (A. asperula), Emory's milkweed (A.
emoryi), zizotes milkweed (A. oenotheroides), and wand milkweed (A.
viridiflora), during the first few years after sites have burned; this
fire-following effect has been described for green milkweed (A.
viridis) (Baum and Sharber 2012, entire). Prostrate milkweed, like
other milkweeds, may also be stimulated to grow and flower after
wildfires have reduced competition.
Most Asclepias species require outcrossing for effective
fertilization of flowers. All Asclepias species have highly specialized
pollination mechanisms that require animal pollinators to carry pollen
from one individual to another. Although the effective pollinators of
prostrate milkweed have not been determined, these are likely to
include large bees and wasps. For example, the closely related zizotes
milkweed is effectively pollinated by very large wasps called tarantula
hawks (Pepsis spp. and Hemipepsis spp.) (Service 2020, pp. 17, 35-36).
Therefore, prostrate milkweed habitats must also support populations of
large bees and wasps that, in turn, require abundant, diverse sources
of pollen and nectar. Much like milkweeds, many pollen and nectar
plants are fire followers that are most abundant in sites that burn
periodically, but decline when fires are infrequent.
Buffelgrass is an African grass that is widely planted in south
Texas for livestock forage. Buffelgrass is highly invasive, and
frequently displaces native grasses and herbaceous plants (Best 2009,
pp. 310-311), including prostrate milkweed (Service 2020, pp. 39-40)
and the pollen and nectar plants needed to support pollinator
populations. The majority of prostrate milkweed plants have been
observed in sites where buffelgrass is absent or at low densities
(Eason 2019, pers. comm.; Strong 2019, pers. comm.). Prostrate milkweed
requires an open canopy with less than 30 percent cover of native and
nonnative grasses and herbaceous plants combined (Damude and Poole
1990, p. 16); thus, assuming nonnative buffelgrass is more prevalent,
we estimate that 20 percent or less cover of buffelgrass is at a low
enough density for prostrate milkweed to survive. Therefore, prostrate
milkweed habitats must also have less than 20 percent cover of
buffelgrass for prostrate milkweed to have access to sufficient
resources such as sunlight.
In summary, the essential biological features of prostrate milkweed
critical habitats are: (1) open savannas and grasslands of the
Tamaulipan shrubland ecological region; (2) vegetation composition that
includes abundant, diverse pollen and nectar plants and healthy
populations of native bee and wasp species; and (3) less than 20
percent cover of buffelgrass.
Summary of Essential Physical or Biological Features
Additional information can be found in the SSA report (Service
2020, available on <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No. FWS-R2-
ES-2021-0041). We have determined that the following PBFs are essential
to the conservation of prostrate milkweed:
(1) Well-drained sandy soil overlying strata of sandstone or
indurated caliche;
(2) High soil gypsum concentration;
(3) Open savannas and grasslands of the Tamaulipan shrubland
ecological region;
(4) Vegetation composition that includes abundant, diverse pollen
and nectar plants and healthy populations of native bee and wasp
species; and
(5) Less than 20 percent cover of buffelgrass.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features that are essential to the conservation of
the species and which may require special management considerations or
protection. The features essential to the conservation of this species
may require special management considerations or protection to reduce
the following threats: nonnative, invasive grass; root-plowing and
conversion of native vegetation to buffelgrass pasture; ROW
construction and maintenance from energy development and road and
utility construction; border security development and law enforcement
activities; and small population sizes. Management activities that
could ameliorate these threats include, but are not limited to:
prescribed burning, grazing, and/or brush thinning; nonnative, invasive
grass control; protection from activities that disturb the soil; and
propagation and reintroduction of plants in restorable areas. There are
a variety of ways to manage the land to address the threats facing
prostrate milkweed.
In summary, we find that the occupied areas we are designating as
critical habitat contain the PBFs that are essential to the
conservation of the species and that may require special management
considerations or protection. Special management considerations or
protection may be required of the Federal action agency to eliminate,
or to reduce to negligible levels, the threats affecting the PBFs of
each unit.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside
[[Page 12585]]
the geographical area occupied by the species to be considered for
designation as critical habitat. We are not designating any areas
outside the geographical area occupied by the species because we have
not identified any unoccupied areas that meet the definition of
critical habitat. While prostrate milkweed needs additional populations
to reduce the likelihood of extinction in the future, we are not able
to identify additional locations that may have a reasonable certainty
of contributing to conservation at this time due to limited access to
privately owned lands and information regarding lands that would be
good candidates for introductions in the species' range. Accordingly,
we cannot at this time identify unoccupied locations that are essential
to the conservation of the species.
We are designating lands as critical habitat that we have
determined are occupied at the time of listing (i.e., currently
occupied) and that contain one or more of the PBFs that are essential
to support life-history processes of the species. Units are based on
one or more of the PBFs being present to support prostrate milkweed's
life-history processes. Some units contain all of the identified PBFs
and support multiple life-history processes. Some units contain only
some of the PBFs necessary to support the prostrate milkweed's
particular use of that habitat.
In summary, for areas within the geographic area occupied by the
species at the time of listing, we delineated critical habitat unit
boundaries using the following criteria. First, using ArcGIS software,
we identified potential habitats in Starr and Zapata Counties that have
the essential features of geology and soils described above. The
geographic information we obtained about the known populations exists
as: (1) vegetation surveys of entire tracts of land; (2) element
occurrence (EO) polygons represented in the Texas Natural Diversity
Database (Database); or (3) points and lines represented in the
Database. We then adapted methods to delineate critical habitats for
each type of geographic information.
We delineated all the potential habitats that occur at the Arroyo
Ramirez tract and the Arroyo Morteros tract of the Lower Rio Grande
Valley NWR as critical habitat (Units 2 and 5). The Lower Rio Grande
Valley NWR comprises several disconnected land parcels, rather than one
big land area, and these parcels are referred to as ``tracts.'' The two
tracts that are included in Units 2 and 5 are isolated areas of NWR
land. These NWR tracts are managed for the conservation of native
plants and animals, and we have conducted plant surveys and have
extensive knowledge of habitat suitability of these tracts.
Similarly, we delineated all the potential habitats that occur at a
private ranch (Unit 6) that is managed for wildlife and plant
conservation as critical habitat. The landowner has granted access for
plant surveys and vegetation studies to researchers from the Texas
Parks and Wildlife Department, academic institutions, and the Service.
Two of the known populations are represented as polygons in the
Database located in the ROWs of unpaved county roads in Starr County.
We have no information about the land uses or habitat suitability of
areas outside these polygons. We delineated all the potential habitats
that occur within these polygons (Units 4 and 7) as critical habitat.
Three of the known populations are represented as one or more points or
lines in the Database located on privately owned land. We have no
information about the land uses or habitat suitability of areas outside
the points and lines. Because critical habitats must be areas, not
points or lines, we delineated all areas of potential habitat within 50
meters (m) (164 feet (ft)) from these points and lines as critical
habitat units; we chose the 50-m distance because the Database also
used a 50-m distance for most of these features to account for
estimated geographic precision. To complete the delineations of
critical habitat areas, we overlaid each critical habitat area
described above on Digital Ortho-Quarter Quad aerial photographs to
identify and exclude any portions of sites that consist of unvegetated
roadbeds that are frequently driven and are maintained by road grading,
as well as structures and other developed areas that do not contain the
geological and soil substrates and vegetative cover that are essential
PBFs.
We did not include in this designation one historical observation
that has only approximate location data and cannot be mapped. We also
did not include any of the populations reported in the U.S. Highway 83
ROW, all of which have declined since they were first reported. For
example, part of EO 3 (Dolores) along U.S. Highway 83 had about 200
individuals in 1988; four surveys conducted from 2009 to 2017 found
from 0 to 3 individuals. The degree and frequency of soil disturbance
in the ROWs of improved highways has caused almost complete replacement
of the native plant community with introduced species, such as
buffelgrass. Hence, the essential PBFs are no longer present along this
improved highway ROW. For the same reasons, we did not include one site
in the road bed of a Starr County park where the species was last
observed in 1995.
When determining critical habitat boundaries, we made every effort
to avoid including developed areas such as lands covered by buildings,
pavement, and other structures because such lands lack physical or
biological features necessary for prostrate milkweed. The scale of the
maps we prepared under the parameters for publication within the Code
of Federal Regulations may not reflect the exclusion of such developed
lands. Any such lands inadvertently left inside critical habitat
boundaries shown on the maps of this final rule have been excluded by
text in the rule and are not designated as critical habitat. Therefore,
a Federal action involving these lands would not trigger section 7
consultation with respect to critical habitat and the requirement of no
adverse modification unless the specific action would affect the PBFs
in the adjacent critical habitat.
This final critical habitat designation is defined by the map or
maps, as modified by any accompanying regulatory text, presented at the
end of this document under Regulation Promulgation. We include more
detailed information on the boundaries of the critical habitat
designation in the preamble of this document. We will make the
coordinates or plot points or both on which each map is based available
to the public on <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R2-ES-
2021-0041 and on our internet site at <a href="https://www.fws.gov/office/texas-coastal-ecological-services">https://www.fws.gov/office/texas-coastal-ecological-services</a>.
Final Critical Habitat Designation
We are designating eight units as critical habitat for prostrate
milkweed. The critical habitat areas we describe below constitute our
current best assessment of areas that meet the definition of critical
habitat for prostrate milkweed. The eight areas we are designating as
critical habitat units are all Database EOs: Unit 1 (EO 3), Unit 2 (EO
10), Unit 3 (EO 11), Unit 4 (EO 12), Unit 5 (EO 15), Unit 6 (EO 16),
Unit 7 (EO 17), and Unit 8 (EO 22). Table 2 shows the critical habitat
units and the approximate area of each unit. All units are occupied.
[[Page 12586]]
Table 2--Critical Habitat Units for Prostrate Milkweed
[Area estimates reflect all land within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
Size of unit
Critical habitat unit Land ownership by type in acres Occupied?
(hectares)
----------------------------------------------------------------------------------------------------------------
1 (EO 3)................................ County Road ROW and 10.5 (4.3) Yes.
Private.
2 (EO 10)............................... Federal (Service)......... 85.7 (34.7) Yes.
3 (EO 11)............................... Private................... 4.0 (1.6) Yes.
4 (EO 12)............................... County Road ROW........... 4.2 (1.7) Yes.
5 (EO 15)............................... Federal (Service)......... 51.9 (21.0) Yes.
6 (EO 16)............................... County Road ROW and 484.3 (196.0) Yes.
Private.
7 (EO 17)............................... County Road ROW and 19.4 (7.8) Yes.
Private.
8 (EO 22)............................... Private................... 1.0 (0.4) Yes.
-------------------------------------------
Total............................... .......................... 661.0 (267.5) ..........................
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
Below, we present brief descriptions of all units and reasons why
they meet the definition of critical habitat for prostrate milkweed.
Unit 1: EO 3
Unit 1 consists of six areas, totaling 10.5 acres (ac) (4.3
hectares (ha)), east of U.S. Highway 83 in northwest Zapata County.
This unit is on private land and unpaved county road ROWs. The unit is
occupied by the species and contains PBFs 1, 3, and 4. Although we have
no recent information on threats that affect this unit, we conclude
that this unit is affected by invasive, nonnative grass (buffelgrass)
and road maintenance operations. Therefore, special management
considerations may be required to reduce invasion of nonnative species
and impacts from ROW maintenance.
Unit 2: EO 10
Unit 2 consists of 85.7 ac (34.7 ha) in the 699.4-acre Arroyo
Ramirez tract of Lower Rio Grande Valley NWR. This unit is in
southwestern Starr County adjacent to the Rio Grande on the U.S
2012;Mexico border. The entire unit is on land owned and managed by the
Service. The unit is occupied by the species and contains PBFs 1 and 4.
In this final rule, the designated critical habitat in Unit 2
reflects recently constructed border wall, which reduces the area
meeting the definition of critical habitat in the unit. Specifically,
this change results in a decrease of 19.7 ac (8.0 ha) of critical
habitat from what we proposed for Unit 2 on February 15, 2022 (87 FR
8509).
This unit could be directly impacted by border security operations
(i.e., drag strips), or indirectly impacted by channeling of runoff
along the barrier during heavy rainfall, in addition to invasion of
buffelgrass. Therefore, special management considerations may be
required to mitigate impacts from border security operations and
nonnative grass.
Unit 3: EO 11
Unit 3 consists of three areas, totaling 4.0 ac (1.6 ha), on
private land in southwestern Starr County. The unit is occupied by the
species and contains PBFs 1, 2, and 4. We have no recent information on
threats that affect this unit. Special management considerations may be
required.
Unit 4: EO 12
Unit 4 consists of 4.2 ac (1.7 ha) along an unpaved county road ROW
in southwestern Starr County. This ROW supports a narrow strip of
diverse native vegetation that has likely not been plowed, bulldozed,
or graded. The unit is occupied by the species and contains all of the
PBFs essential to the conservation of prostrate milkweed. This unit is
affected by invasive, nonnative grass (buffelgrass) and maintenance and
operation of the county road. Therefore, special management
considerations may be required to reduce invasion of nonnative species.
Unit 5: EO 15
Unit 5 consists of 51.9 ac (21.0 ha) in the 90.8-acre Arroyo
Morteros tract of the Lower Rio Grande Valley NWR. This unit is in
southwestern Starr County adjacent to the Rio Grande on the U.S. Mexico
border. The entire unit is on land owned and managed by the Service.
The unit is occupied by the species and contains all of the PBFs
essential to the conservation of prostrate milkweed.
In this final rule, the designated critical habitat in Unit 5
reflects correction of a map projection error of the NWR tract
boundary, which reduces the area of this unit. Specifically, this
change results in a decrease of 10.6 ac (4.3 ha) of critical habitat
from what we proposed for Unit 5 on February 15, 2022 (87 FR 8509).
This unit could be directly impacted by border barrier construction
and security operations (i.e., drag strips), or indirectly impacted by
channeling of runoff along the barrier during heavy rainfall, in
addition to invasion of buffelgrass. Therefore, special management
considerations may be required to mitigate impacts from border security
operations and nonnative grass.
Unit 6: EO 16
Unit 6 consists of 484.3 ac (196.0 ha) entirely on the 488.5-acre
private Martinez Ranch and along a county road ROW. This unit is in
southern Starr County. The owner of the Martinez Ranch is a willing
conservation partner in managing the property's native plants and
wildlife. The unit is occupied by the species and contains all of the
PBFs essential to the conservation of prostrate milkweed. This unit is
affected by invasive, nonnative grass (buffelgrass). Therefore, special
management considerations may be required to reduce invasion of
nonnative species.
Unit 7: EO 17
Unit 7 consists of 19.4 ac (7.8 ha) along both sides of an unpaved
county road ROW and adjacent private land in western Starr County. This
ROW supports a narrow strip of diverse native vegetation that has
likely not been plowed, bulldozed, or graded. The unit is occupied by
the species and contains PBFs 1, 3, 4, and 5. This unit is affected by
invasive, nonnative grass (buffelgrass) and maintenance and operation
of the county road. Therefore, special management considerations may be
required to reduce invasion of nonnative species.
Unit 8: EO 22
Unit 8 consists of 1.0 ac (0.4 ha) on private land in central
Zapata County.
[[Page 12587]]
The unit is occupied by the species and contains PBFs 1, 3, and 4.
Although we have no recent information about threats that affect this
unit, we estimate that this unit is affected by invasive, nonnative
grass (buffelgrass) and development and maintenance of oil and gas
wells and utility corridors. Therefore, special management
considerations may be required to reduce invasion of nonnative species
and impacts from ROW construction and maintenance from energy
development and road and utility construction.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species.
We published a final rule revising the definition of destruction or
adverse modification on August 27, 2019 (84 FR 44976). Destruction or
adverse modification means a direct or indirect alteration that
appreciably diminishes the value of critical habitat as a whole for the
conservation of a listed species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, Tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat--and actions
on State, Tribal, local, or private lands that are not federally
funded, authorized, or carried out by a Federal agency--do not require
section 7 consultation.
Compliance with the requirements of section 7(a)(2) is documented
through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood
of jeopardizing the continued existence of the listed species and/or
avoid the likelihood of destroying or adversely modifying critical
habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 set forth requirements for Federal
agencies to reinitiate formal consultation on previously reviewed
actions. These requirements apply when the Federal agency has retained
discretionary involvement or control over the action (or the agency's
discretionary involvement or control is authorized by law) and,
subsequent to the previous consultation: (1) if the amount or extent of
taking specified in the incidental take statement is exceeded; (2) if
new information reveals effects of the action that may affect listed
species or critical habitat in a manner or to an extent not previously
considered; (3) if the identified action is subsequently modified in a
manner that causes an effect to the listed species or critical habitat
that was not considered in the biological opinion; or (4) if a new
species is listed or critical habitat designated that may be affected
by the identified action.
In such situations, Federal agencies sometimes may need to request
reinitiation of consultation with us, but Congress also enacted some
exceptions in 2018 to the requirement to reinitiate consultation on
certain land management plans on the basis of a new species listing or
new designation of critical habitat that may be affected by the subject
Federal action. See 2018 Consolidated Appropriations Act, Public Law
115-141, Div, O, 132 Stat. 1059 (2018).
Application of the ``Adverse Modification'' Standard
The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat as a
whole for the conservation of the listed species. As discussed above,
the role of critical habitat is to support PBFs essential to the
conservation of a listed species and provide for the conservation of
the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate section
7(a)(2) of the Act by destroying or adversely modifying such habitat,
or that may be affected by such designation.
Activities that we may, during a consultation under section 7(a)(2)
of the Act, consider likely to destroy or adversely modify critical
habitat include, but are not limited to:
(1) Actions that would degrade or destroy native plant communities.
Such activities could include, but are not limited to, building roads,
clearing land for oil and gas exploration or other purposes,
introducing and encouraging the spread of nonnative species (i.e.,
buffelgrass), and conducting border security operations. However,
above-ground cutting or thinning of woody plants and prescribed burning
are recommended management practices for conservation of prostrate
milkweed and other native grasses and forbs, and would not destroy or
adversely modify critical habitats.
(2) Actions that would mechanically disturb the soil structure.
Such activities could include, but are not limited to, bulldozing,
root-plowing, ripping, excavating, or other mechanical operations that
penetrate deep enough into the soil to cut or remove the tubers of
prostrate milkweed.
(3) Actions that would increase competition from woody plants or
introduced grasses. Such activities could include, but are not limited
to, intentional planting of introduced grass species, such as
buffelgrass,
[[Page 12588]]
bermudagrass (Cynodon dactylon), or Old World bluestems (introduced
species of Dichanthium and Bothriochloa).
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that the Secretary shall not designate as critical habitat any
lands or other geographical areas owned or controlled by the Department
of Defense (DoD), or designated for its use, that are subject to an
integrated natural resources management plan (INRMP) prepared under
section 101 of the Sikes Act Improvement Act of 1997 (16 U.S.C. 670a),
if the Secretary determines in writing that such plan provides a
benefit to the species for which critical habitat is proposed for
designation. There are no DoD lands with a completed INRMP within the
final critical habitat designation.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat based on economic
impacts, impacts on national security, or any other relevant impacts.
Exclusion decisions are governed by the regulations at 50 CFR 424.19
and the Policy Regarding Implementation of Section 4(b)(2) of the
Endangered Species Act, 81 FR 7226 (February 11, 2016)) (2016 Policy),
both of which were developed jointly with the National Marine Fisheries
Service (NMFS). We also refer to a 2008 Department of the Interior
Solicitor's opinion entitled, ``The Secretary's Authority to Exclude
Areas from a Critical Habitat Designation under Section 4(b)(2) of the
Endangered Species Act'' (M-37016). We explain each decision to exclude
areas, as well as decisions not to exclude, to demonstrate that the
decision is reasonable.
The Secretary may exclude any particular area if she determines
that the benefits of such exclusion outweigh the benefits of including
such area as part of the critical habitat, unless she determines, based
on the best scientific data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. In making the determination to exclude a particular area, the
statute on its face, as well as the legislative history, are clear that
the Secretary has broad discretion regarding which factor(s) to use and
how much weight to give to any factor. In this final rule, we are not
excluding any areas from critical habitat. We describe below the
process that we undertook for deciding whether to exclude any areas
taking into consideration each category of impacts and our analyses of
the relevant impacts.
Exclusions Based on Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. In order to consider economic impacts, we prepared
an incremental effects memorandum (IEM) and screening analysis which,
together with our narrative and interpretation of effects, we consider
our economic analysis of the critical habitat designation and related
factors (IEc 2021, entire). The analysis, dated March 11, 2021, was
made available for public review from February 15, 2022, through April
18, 2022 (87 FR 8509). The economic analysis addressed probable
economic impacts of critical habitat designation for prostrate
milkweed. Following the close of the comment period, we reviewed and
evaluated all information submitted during the comment period that may
pertain to our consideration of the probable incremental economic
impacts of this critical habitat designation. This final critical
habitat designation is 30.3 ac (12.3 ha) less than the proposed
critical habitat designation, and therefore we would expect the
incremental costs to be the same or slightly less than previously
estimated in the economic analysis. Additional information relevant to
the probable incremental economic impacts of the critical habitat
designation for prostrate milkweed is summarized below and available in
the screening analysis for the prostrate milkweed (IEc 2021, entire),
available at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
The full description of the findings from the economic analysis are
outlined in the proposed rule (87 FR 8509; February 15, 2022). The
estimated incremental costs of the total proposed critical habitat
designation for prostrate milkweed was found to be less than $37,800
per year. Therefore, with the removal of 30.3 ac (12.3 ha) of critical
habitat from this final critical habitat designation to reflect border
wall construction in Unit 2 and the correction of the map projection
for Unit 5, the annual administrative burden is very unlikely to reach
$100 million, which is the threshold for a significant regulatory
action under Executive Order (E.O.) 12866.
As discussed above, we considered the economic impacts of the
critical habitat designation, and the Secretary is not exercising her
discretion to exclude any areas from this designation of critical
habitat for the prostrate milkweed based on economic impacts.
Exclusions Based on Impacts on National Security and Homeland Security
Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or
areas that pose potential national-security concerns (e.g., a DoD
installation that is in the process of revising its INRMP for a newly
listed species or a species previously not covered). If a particular
area is not covered under section 4(a)(3)(B)(i), then national-security
or homeland-security concerns are not a factor in the process of
determining what areas meet the definition of ``critical habitat.''
However, the Service must still consider impacts on national security,
including homeland security, on those lands or areas not covered by
section 4(a)(3)(B)(i), because section 4(b)(2) requires the Service to
consider those impacts whenever it designates critical habitat.
Accordingly, we will always consider for exclusion from the designation
areas for which DoD, Department of Homeland Security (DHS), or another
Federal agency has requested exclusion based on an assertion of
national-security or homeland-security concerns. We did not receive any
additional information during the public comment period for the
proposed critical habitat designation from DoD, DHS, or any other
Federal agency regarding impacts of the designation on national
security or homeland security that would support excluding any specific
areas from the final critical habitat designation under authority of
section 4(b)(2) and our implementing regulations at 50 CFR 424.19. No
lands within the designation of critical habitat for prostrate milkweed
are owned or managed by DoD or DHS.
We received a comment from the Office of the Attorney General of
Texas regarding its concerns that including portions of the Texas
border as critical habitat would impact national security by preventing
Texas's efforts to address the border crisis. We coordinated with CBP
in finalizing this rule to ensure appropriate collaboration in our
national security and conservation efforts, and they did not request
exclusion of the two units of critical habitat located along the border
on the
[[Page 12589]]
basis of national security or homeland security concerns. As a result,
we do not anticipate that there will be an impact on national security
or homeland security. Accordingly, we evaluated the Office of the
Attorney General of Texas's request for under the basis of other
relevant impacts (see Exclusions Based on Other Relevant Impacts)
below.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security discussed above. To identify other relevant impacts that may
affect the exclusion analysis, we consider a number of factors,
including whether there are permitted conservation plans covering the
species in the area--such as HCPs, SHAs, or CCAAs--or whether there are
non-permitted conservation agreements and partnerships that may be
impaired by designation of, or exclusion from, critical habitat. In
addition, we look at whether Tribal conservation plans or partnerships,
Tribal resources, or government-to-government relationships of the
United States with Tribal entities may be affected by the designation.
We also consider any State, local, social, or other impacts that might
occur because of the designation.
Attorney General of Texas--Texas Border Lands
We received a comment from the Attorney General of Texas requesting
that areas along the U.S.-Mexico border in Texas be excluded from the
final critical habitat designation for prostrate milkweed. This request
involves Units 2 and 5, which are lands owned and managed by the
Service as part of the Lower Rio Grande Valley NWR.
The Attorney General of Texas' rationale for requesting the
exclusion was that designating these lands along the U.S.-Mexico border
in Texas would prevent Texas' effort to address the border crisis via
implementing proven deterrence measures to protect its borders from
illegal immigration, such as building a border barrier and engaging in
border enforcement activities. In his comment, the Attorney General of
Texas acknowledged the value in protecting species native to Texas and
general conservation efforts, but stated that designating critical
habitat must also account for potential implications to border
security, and thus national security. The Attorney General of Texas
discussed the increasing trend in the number of encounters with
migrants at the border and organized crime, such as human and drug
trafficking, and discussed the economic impact to ranchers from fence
and gate damage.
Additionally, the Attorney General of Texas commented that recent
environmental analyses conducted by CBP determined that border
enforcement activities, such as border barrier and road construction,
are of minimal or no significance to prostrate milkweed, and thus
designation of critical habitat is not needed to protect the species.
The Attorney General of Texas writes that these actions by Texas to
secure the border would reduce foot traffic by enforcing border
security activities, thus actually benefiting surrounding vegetation,
including prostrate milkweed. The comment concludes that the border
crisis in Texas is resulting in increased costs to the State of Texas.
The Attorney General of Texas concludes that designating critical
habitat along the U.S.-Mexico border in Texas would prevent the State
from implementing proven deterrence measures to protect its border.
Prostrate milkweed occurs in two areas along the U.S.-Mexico border
on tracts of land owned by the Lower Rio Grande Valley NWR: Arroyo
Ramirez and Arroyo Morteros, Units 2 and 5 of critical habitat,
respectively. An 11,086-foot-long border wall was constructed across
the western and northern part of the Arroyo Ramirez tract, and the
cleared construction area averages about 200 feet wide and is 46.7
acres in area. The Arroyo Morteros tract does not currently have a
border wall, but there was a road proposed for border security purposes
that has not been constructed, despite the fact that the construction
was waived from environmental review.
As stated above, the lands in these two units are owned and managed
by the Service. The Lower Rio Grande Valley NWR has many tracts of
refuge land along the border. Service staff regularly collaborate with
CBP to ensure that border security operations can occur without any
impediments. The Real ID Act of 2005 granted authority to the DHS to
override other Federal laws, including the Endangered Species Act, for
the purpose of border security operations and infrastructure.
Therefore, designating critical habitat along the border would not
impact CBP's ability to engage in border security operations in these
areas. Specifically, the listing and designation of critical habitat
for prostrate milkweed will not preclude border wall construction or
security operations. It is also unlikely that there will be future
restrictions on CBP's border enforcement activities resulting from the
ongoing requirements from designating critical habitat. We will
continue to collaborate with DHS and CBP to ensure border security
operations can still occur in areas designated as critical habitat for
prostrate milkweed. The requirement to provide a reasonably specific
justification of an incremental impact on national security that would
result from the designation of that specific area as critical habitat
on the basis of national-security or homeland-security impacts applies
to Federal agencies, including DoD and DHS. We contacted CBP in
developing this final critical habitat designation but did not receive
a response. If such information is provided in the future, we will
conduct a discretionary analysis.
Further, our 2016 Policy (81 FR 7226; February 11, 2016) states
that the Secretary may undertake a preliminary evaluation of any plans,
partnerships, economic considerations, national-security
considerations, or other relevant impacts identified after considering
the impacts required by the first sentence of the Act's section
4(b)(2). Following the preliminary evaluation, the Secretary may choose
to enter into the discretionary 4(b)(2) exclusion analysis for any
particular area (81 FR 7226; February 11, 2016). Here, we conducted a
preliminary evaluation based on the comments we received from Texas,
but, as set forth above, we have not determined that a full
discretionary 4(b)(2) analysis is warranted at this time. Accordingly,
we are not excluding the area from this final rule due to national
security or any other basis.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this rule is not
significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
[[Page 12590]]
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
Under the RFA, as amended, and following recent court decisions,
Federal agencies are required to evaluate the potential incremental
impacts of rulemaking on those entities directly regulated by the
rulemaking itself; in other words, the RFA does not require agencies to
evaluate the potential impacts to indirectly regulated entities. The
regulatory mechanism through which critical habitat protections are
realized is section 7 of the Act, which requires Federal agencies, in
consultation with the Service, to ensure that any action authorized,
funded, or carried out by the agency is not likely to destroy or
adversely modify critical habitat. Therefore, under section 7, only
Federal action agencies are directly subject to the specific regulatory
requirement (avoiding destruction and adverse modification) imposed by
critical habitat designation. Consequently, it is our position that
only Federal action agencies will be directly regulated by this
designation. There is no requirement under the RFA to evaluate the
potential impacts to entities not directly regulated. Moreover, Federal
agencies are not small entities. Therefore, because no small entities
will be directly regulated by this rulemaking, we certify that this
critical habitat designation will not have a significant economic
impact on a substantial number of small entities.
During the development of this final rule, we reviewed and
evaluated all information submitted during the comment period on the
February 15, 2022, proposed rule (87 FR 8509) that may pertain to our
consideration of the probable incremental economic impacts of this
critical habitat designation. Based on this information, we affirm our
certification that this critical habitat designation will not have a
significant economic impact on a substantial number of small entities,
and a regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. In our economic analysis, we did not find that this
critical habitat designation will significantly affect energy supplies,
distribution, or use. Therefore, this action is not a significant
energy action, and no Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following finding:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and Tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or Tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate
[[Page 12591]]
in a voluntary Federal aid program, the Unfunded Mandates Reform Act
would not apply, nor would critical habitat shift the costs of the
large entitlement programs listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments because it will not produce a Federal mandate
of $100 million or greater in any year, that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The designation of critical habitat imposes no obligations on
State or local governments. Therefore, a Small Government Agency Plan
is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for prostrate milkweed in a takings implications assessment.
The Act does not authorize the Service to regulate private actions on
private lands or confiscate private property as a result of critical
habitat designation. Designation of critical habitat does not affect
land ownership, or establish any closures, or restrictions on use of or
access to the designated areas. Furthermore, the designation of
critical habitat does not affect landowner actions that do not require
Federal funding or permits, nor does it preclude development of habitat
conservation programs or issuance of incidental take permits to permit
actions that do require Federal funding or permits to go forward.
However, Federal agencies are prohibited from carrying out, funding, or
authorizing actions that would destroy or adversely modify critical
habitat. Our takings implications assessment concludes that this
designation of critical habitat does not pose significant takings
implications for lands within or affected by the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this rule does not have
significant Federalism effects. A federalism summary impact statement
is not required. In keeping with Department of the Interior and
Department of Commerce policy, we requested information from, and
coordinated development of this critical habitat designation with,
appropriate State resource agencies. From a federalism perspective, the
designation of critical habitat directly affects only the
responsibilities of Federal agencies. The Act imposes no other duties
with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, the rule does not have
substantial direct effects either on the States, or on the relationship
between the national government and the States, or on the distribution
of powers and responsibilities among the various levels of government.
The designation may have some benefit to these governments because the
areas that contain the features essential to the conservation of the
species are more clearly defined, and the PBFs of the habitat necessary
for the conservation of the species are specifically identified. This
information does not alter where and what federally sponsored
activities may occur. However, it may assist State and local
governments in long-range planning because they no longer have to wait
for case-by-case section 7 consultations to occur.
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) of the Act will be required. While
non-Federal entities that receive Federal funding, assistance, or
permits, or that otherwise require approval or authorization from a
Federal agency for an action, may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule will not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We have designated critical
habitat in accordance with the provisions of the Act. To assist the
public in understanding the habitat needs of the species, this rule
identifies the PBFs essential to the conservation of the species. The
areas of designated critical habitat are presented on maps, and the
rule provides several options for the interested public to obtain more
detailed location information, if desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not
required. We may not conduct or sponsor and you are not required to
respond to a collection of information unless it displays a currently
valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
Regulations adopted pursuant to section 4(a) of the Act are exempt
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et
seq.) and do not require an environmental analysis under NEPA. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This includes
listing, delisting, and reclassification rules, as well as critical
habitat designations. In a line of cases starting with Douglas County
v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), the courts have upheld this
position.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes. We have determined that no Tribal
lands fall within the boundaries of the critical habitat designation
for the prostrate milkweed, so no Tribal lands will be affected by the
designation.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a> and upon request from
the Texas Coastal Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this rule are the staff members of the U.S.
Fish and Wildlife Service's Species Assessment
[[Page 12592]]
Team and the Austin and Texas Coastal Ecological Services Field
Offices.
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. In Sec. 17.12, amend paragraph (h) by adding an entry for
``Asclepias prostrata'' to the List of Endangered and Threatened Plants
in alphabetical order under Flowering Plants to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations
Scientific name Common name Where listed Status and applicable
rules
----------------------------------------------------------------------------------------------------------------
Flowering Plants
* * * * * * *
Asclepias prostrata............. Prostrate milkweed. Wherever found..... E 87 FR [Insert
Federal Register
page where the
document begins],
February 28, 2023;
50 CFR
17.96(a).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. In Sec. 17.96, amend paragraph (a) by adding an entry for ``Family
Apocynaceae: Asclepias prostrata (prostrate milkweed)'' after the entry
for ``Family Apiaceae: Lomatium cookii (Cook's lomatium, Cook's desert
parsley)'', to read as follows:
Sec. 17.96 Critical habitat--plants.
(a) * * *
Family Apocynaceae: Asclepias prostrata (prostrate milkweed)
(1) Critical habitat units are depicted for Starr and Zapata
Counties, Texas, on the maps in this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of Asclepias prostrata consist of the
following components:
(i) Well-drained sandy soil overlying strata of sandstone or
indurated caliche;
(ii) High soil gypsum concentration;
(iii) Open savannas and grasslands of the Tamaulipan shrubland
ecological region;
(iv) Vegetation composition that includes abundant, diverse pollen
and nectar plants and healthy populations of native bee and wasp
species; and
(v) Less than 20 percent cover of Pennisetum ciliare (buffelgrass).
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
March 30, 2023.
(4) Data layers defining map units were created using Texas Natural
Diversity Database (2019-2020) survey data of the documented Asclepias
prostrata locations in the United States to determine the geological
formations and soil types they occupy.
(i) We used the Esri ArcMap software to overlay the geographic
coordinates of populations on a digitized map of Texas surface geology
and a digitized soil survey map. We then clipped those areas of
potential to lands that have documented populations of Asclepias
prostrata.
(ii) The maps in this entry, as modified by any accompanying
regulatory text, establish the boundaries of the critical habitat
designation. The coordinates or plot points or both on which each map
is based are available to the public at the Service's internet site at
<a href="https://www.fws.gov/office/texas-coastal-ecological-services">https://www.fws.gov/office/texas-coastal-ecological-services</a>, at
<a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R2-ES-2021-0041, and at
the field office responsible for this designation. You may obtain field
office location information by contacting one of the Service regional
offices, the addresses of which are listed at 50 CFR 2.2.
(5) Index map follows:
BILLING CODE 4333-15-P
[[Page 12593]]
Figure 1 to Family Apocynaceae: Asclepias prostrata (prostrate
milkweed) paragraph (5)
[GRAPHIC] [TIFF OMITTED] TR28FE23.000
[[Page 12594]]
(6) Unit 1: Zapata County, Texas.
(i) Unit 1 consists of 6 areas totaling 10.5 ac (4.3 ha) east of
U.S. Highway 83 in northwest Zapata County. This unit is on private
land and a county road right-of-way.
(ii) Map of Unit 1 follows:
Figure 2 to Family Apocynaceae: Asclepias prostrata (prostrate
milkweed) paragraph (6)(ii)
[GRAPHIC] [TIFF OMITTED] TR28FE23.001
[[Page 12595]]
(7) Unit 2: Starr County, Texas.
(i) Unit 2 consists of 85.7 ac (34.7 ha) in the Arroyo Ramirez
tract of Lower Rio Grande Valley National Wildlife Refuge. This unit is
in southwestern Starr County adjacent to the Rio Grande on the U.S.-
Mexico border. The entire unit is on land owned and managed by the
Service.
(ii) Map of Unit 2 follows:
Figure 3 to Family Apocynaceae: Asclepias prostrata (prostrate
milkweed) paragraph (7)(ii)
[GRAPHIC] [TIFF OMITTED] TR28FE23.002
[[Page 12596]]
(8) Unit 3: Starr County, Texas.
(i) Unit 3 consists of 4.0 ac (1.6 ha) along both sides of a road
right-of-way on private land in southern Starr County.
(ii) Map of Unit 3 follows:
Figure 4 to Family Apocynaceae: Asclepias prostrata (prostrate
milkweed) paragraph (8)(ii)
[GRAPHIC] [TIFF OMITTED] TR28FE23.003
[[Page 12597]]
(9) Unit 4: Starr County, Texas.
(i) Unit 4 consists of 4.2 ac (1.7 ha) along the unpaved right-of-
way of Los Arrieros Loop, a county road in southwestern Starr County.
(ii) Map of Unit 4 follows:
Figure 5 to Family Apocynaceae: Asclepias prostrata (prostrate
milkweed) paragraph (9)(ii)
[GRAPHIC] [TIFF OMITTED] TR28FE23.004
(10) Unit 5: Starr County, Texas.
(i) Unit 5 consists of 51.9 ac (21.0 ha) in the Arroyo Morteros
tract of the Lower Rio Grande Valley National Wildlife Refuge. This
unit is in western Starr County adjacent to the Rio Grande on the U.S.-
Mexico border. The entire unit is on land owned and managed by the
Service.
(ii) Map of Unit 5 follows:
[[Page 12598]]
Figure 6 to Family Apocynaceae: Asclepias prostrata (prostrate
milkweed) paragraph (10)(ii)
[GRAPHIC] [TIFF OMITTED] TR28FE23.005
(11) Unit 6: Starr County, Texas.
(i) Unit 6 consists of 484.3 ac (196.0 ha) entirely on privately
owned land and the adjacent right-of-way of San
[[Page 12599]]
Julian Road. This unit is in western Starr County.
(ii) Map of Unit 6 follows:
Figure 7 to Family Apocynaceae: Asclepias prostrata (prostrate
milkweed) paragraph (11)(ii)
[GRAPHIC] [TIFF OMITTED] TR28FE23.006
(12) Unit 7: Starr County, Texas.
(i) Unit 7 consists of 19.4 ac (7.8 ha) along both sides of a
right-of-way and adjacent private land in western Starr County.
[[Page 12600]]
(ii) Map of Unit 7 follows:
Figure 8 to Family Apocynaceae: Asclepias prostrata (prostrate
milkweed) paragraph (12)(ii)
[GRAPHIC] [TIFF OMITTED] TR28FE23.007
(13) Unit 8: Zapata County, Texas.
(i) Unit 8 consists of 1.0 ac (0.4 ha) on private land in central
Zapata County.
(ii) Map of Unit 8 follows:
[[Page 12601]]
Figure 9 to Family Apocynaceae: Asclepias prostrata (prostrate
milkweed) paragraph (13)(ii)
[GRAPHIC] [TIFF OMITTED] TR28FE23.008
[[Page 12602]]
* * * * *
Wendi Weber,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-03656 Filed 2-27-23; 8:45 am]
BILLING CODE 4333-15-C
</pre></body>
</html>Indexed from Federal Register on February 28, 2023.
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.