Rule2023-07118
Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for Bracted Twistflower and Designation of Critical Habitat
Primary source
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Published
April 11, 2023
Effective
May 11, 2023
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), determine threatened species status under the Endangered Species Act of 1973 (Act), as amended, for the bracted twistflower (Streptanthus bracteatus), a plant species from Texas. In addition, we designate critical habitat for the bracted twistflower. In total, approximately 1,596 acres (646 hectares) in Uvalde, Medina, Bexar, and Travis Counties, Texas, fall within the boundaries of the critical habitat designation. This rule applies the protections of the Act to this species and its designated critical habitat. We also finalize a rule issued under the authority of section 4(d) of the Act (a "4(d) rule") that provides measures that are necessary and advisable to provide for the conservation of this species.
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[Federal Register Volume 88, Number 69 (Tuesday, April 11, 2023)]
[Rules and Regulations]
[Pages 21844-21876]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-07118]
[[Page 21843]]
Vol. 88
Tuesday,
No. 69
April 11, 2023
Part IV
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Threatened Species
Status With Section 4(d) Rule for Bracted Twistflower and Designation
of Critical Habitat; Final Rule
Federal Register / Vol. 88, No. 69 / Tuesday, April 11, 2023 / Rules
and Regulations
[[Page 21844]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2021-0013; FF09E21000 FXES11110900000 234]
RIN 1018-BE44
Endangered and Threatened Wildlife and Plants; Threatened Species
Status With Section 4(d) Rule for Bracted Twistflower 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), determine
threatened species status under the Endangered Species Act of 1973
(Act), as amended, for the bracted twistflower (Streptanthus
bracteatus), a plant species from Texas. In addition, we designate
critical habitat for the bracted twistflower. In total, approximately
1,596 acres (646 hectares) in Uvalde, Medina, Bexar, and Travis
Counties, Texas, fall within the boundaries of the critical habitat
designation. This rule applies the protections of the Act to this
species and its designated critical habitat. We also finalize a rule
issued under the authority of section 4(d) of the Act (a ``4(d) rule'')
that provides measures that are necessary and advisable to provide for
the conservation of this species.
DATES: This rule is effective May 11, 2023.
ADDRESSES: This final rule is available on the internet at <a href="https://www.regulations">https://www.regulations</a>.gov. 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">https://www.regulations</a>.gov at Docket No. FWS-
R2-ES-2021-0013.
For the critical habitat designation, the coordinates or plot
points or both from which the maps are generated are included in the
decision file and are available at <a href="https://www.regulations">https://www.regulations</a>.gov at
Docket No. FWS-R2-ES-2021-0013. Any additional tools or supporting
information that we developed for this critical habitat designation
will also be available on the Service's website, at <a href="https://www.regulations">https://www.regulations</a>.gov, or both.
FOR FURTHER INFORMATION CONTACT: Karen Myers, Field Supervisor, U.S.
Fish and Wildlife Service, Austin Ecological Services Field Office,
1505 Ferguson Lane, Austin, Texas; telephone 512-927-3500. 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 in 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 bracted
twistflower meets the Act's definition of a threatened species;
therefore, we are listing it as such and designating 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.
What this document does. This rule makes final the listing of the
bracted twistflower as a threatened species with a 4(d) rule and
designates critical habitat for the species under the Act. We are
designating critical habitat for the species in three units totaling
1,596 acres (646 hectares) in Uvalde, Medina, Bexar, and Travis
Counties in Texas. This rule adds the bracted twistflower to the List
of Endangered and Threatened Plants in title 50 of the Code of Federal
Regulations (CFR) at 50 CFR 17.12(h), adds a 4(d) rule to 50 CFR 17.73,
and adds critical habitat for this species to 50 CFR 17.96(a).
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 the primary threats to the
bracted twistflower are loss of habitat due to urban and residential
development, changes in structure and composition of vegetation and
wildfire frequency, and herbivory by dense populations of white-tailed
deer (Odocoileus virginianus) and introduced ungulates.
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.
Previous Federal Actions
Please refer to the proposed listing and critical habitat rule (86
FR 62668; November 10, 2021) for a detailed description of previous
Federal actions concerning the bracted twistflower.
Summary of Changes From the Proposed Rule
Based on review of survey data and comments received from the City
of Austin, we have revised the critical habitat boundary in Subunit 1d
to remove the proposed eastern and southern polygons, resulting in a
reduction of 10.45 acres (ac) (4.23 hectares (ha)) from the proposed
critical habitat designation. Although there was a historical record of
bracted twistflower plants within these areas, individuals have not
been documented since 1989, despite regular surveying. Therefore, the
Service has determined that these polygons are unoccupied and do not
meet the definition of occupied critical habitat. Additionally, these
areas are not essential for the conservation of the species and,
accordingly, should not be designated as unoccupied critical habitat.
Based on a public comment, we revised the species status assessment
(SSA) report to include the harmonic mean for those sites for which we
have adequate data.
[[Page 21845]]
Based on new information we received, in this final rule, we
acknowledge that the Balcones Canyonlands Preserve critical habitat
units are jointly managed by the Parks and Recreation Department and
Austin Water's Wildland Conservation Division, and the City of Austin
now owns Bright Leaf Preserve. Additionally, we will update the SSA
report to include the new group of bracted twistflower plants that was
found at Valburn/Bull Creek District Park in 2020 when we receive the
revised data.
Peer Review
A species status assessment (SSA) team prepared an SSA report for
the bracted twistflower (Service 2021, entire). The SSA team was
composed of Service biologists, in consultation with other species
experts. The SSA report represents a compilation of the best scientific
and commercial data available concerning the status of the species,
including the impacts of past, present, and future factors (both
negative and beneficial) affecting the species. In accordance with our
joint policy on peer review published in the Federal Register on July
1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and
clarifying the role of peer review of listing actions under the Act, we
sought the expert opinions of six appropriate specialists regarding the
SSA. We received one response. We also sent the SSA report to four
partners, including scientists with expertise in local plant species,
for review. We received review from all four partners (Texas Parks and
Wildlife Department, the City of Austin, the City of San Antonio, and
Joint Base San Antonio). The peer reviews can be found at <a href="https://www.regulations">https://www.regulations</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
Summary of Comments and Recommendations below.
I. Final Listing Determination
Background
Bracted twistflower is an annual herbaceous plant in the mustard
family (Brassicaceae) that occurs only along the southeastern edge of
the Edwards Plateau of central Texas. There are currently 35 described
species of Streptanthus. Bracted twistflower can be distinguished from
most other members of this genus because the leaves borne on the flower
stalk lack stems and all flower stems have a small, modified leaf,
called a bract, at their bases.
Bracted twistflower habitats occur near the boundary between the
Edwards or Devils River limestone formations and the Glen Rose
limestone formation. Individual plants commonly occur near or under a
canopy of Ashe juniper (Juniperus ashei), Texas live oak (Quercus
fusiformis), Texas mountain laurel (Sophora secundiflora), Texas red
oak (Quercus buckleyi), or other trees.
The seeds germinate in response to fall and winter rainfall,
forming basal rosettes, and the flower stalks emerge the following
spring bearing showy, lavender-purple flowers. The seed capsules remain
attached to the stalks during the summer as they mature and dehisce,
releasing the seeds to be dispersed by gravity. The foliage withers as
the fruits mature, and the plants die during the heat of summer. This
species is primarily an outcrossing species; the leafcutter bee
Megachile comata (family: Megachilidae) is known to be an effective
pollinator. Because the seeds of bracted twistflower do not disperse
far, gene flow for this species occurs mainly through pollination.
Since 1989, populations of the bracted twistflower have been
documented at 17 naturally occurring element occurrences (EOs) in five
counties, as well as one experimental trial in Travis County (see table
1, below). We have adopted the EO standard to maintain consistency with
the Texas Parks and Wildlife Department's Natural Diversity Database
(TXNDD) and because the EOs used in the TXNDD are practical
approximations of populations, based on the best available scientific
information. Each EO may consist of one to many ``source features,''
which are specific locations where one or more individuals have been
observed one or more times.
Bracted twistflower is an annual plant, and the numbers of
individuals that germinate at the source features of each EO vary
widely from year to year in response to weather patterns or other
stimuli. Thus, the numbers observed in any single year are not useful
measures of population size because they do not reveal the numbers of
live, dormant seeds that persist in the soil seed reserve. The SSA
report (Service 2021, appendix A) describes the method we used to
estimate the potential population sizes of EOs, which we define as the
largest numbers of individuals that have been observed at each source
feature of each EO. We then used aerial imagery to determine whether
the habitat of any source features had been destroyed by construction
of roads, buildings, or other disturbance, and we calculated the
estimated remaining potential population at each EO. For a complete
description of the analysis used, see the SSA report (available at
<a href="https://www.regulations">https://www.regulations</a>.gov at Docket No. FWS-R2-ES-2021-0013). Table
1, below, lists the total potential populations of each EO and the
proportions of each that were reported from source features that were
destroyed, partially destroyed, or are still intact. In summary, within
the naturally occurring EOs, we determined that habitats and potential
populations are completely intact at 11 EOs, partially destroyed at 4
EOs, and completely destroyed at 2 EOs. However, even where habitats
are intact, populations may decline due to ungulate herbivory, juniper
competition, or other factors. A thorough review of the taxonomy, life
history, and ecology of the bracted twistflower is presented in the SSA
report (Service 2021, entire).
Table 1--Bracted Twistflower Element Occurrences (EOs), Potential Population Sizes (Numbers of Individuals), and
Habitat Statuses of Source Features
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Total Potential population by habitat status
potential ------------------------------------------------ Percent
EO--Site name; owner; population of remaining
representation area \1\ all source Intact Destroyed Partially intact
features destroyed
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2--Cat Mountain (Far West); 866 123 112 631 14.2
Private; NE....................
7--Ullrich Water Treatment Plant 493 493 0 0 100.0
(Bee Creek Preserve/Balcones
Canyonlands Preserve (BCP));
City of Austin; NE.............
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9--Mt. Bonnell/Mt. Bonnell City 919 237 433 249 25.8
Park/BCP; Private/City of
Austin; NE.....................
17--Barton Creek Wilderness 1,677 1,677 0 0 100.0
Park; City of Austin (BCP); NE.
21--Mesa-FM 2222; Private; NE... 330 0 70 260 0.0
26--Bright Leaf State Natural 10 10 0 0 100.0
Area (SNA); City of Austin; NE.
32--Rough Hollow Ranch; Private; 40 0 40 0 0.0
NE.............................
33 \2\--Vireo Preserve 120 .............. .............. .............. ..............
(experimental reintroduction);
City of Austin (BCP); NE.......
35--Valburn Drive/Bull Creek 1,041 343 644 54 32.9
District Park; Private/City of
Austin/BCP; NE.................
36--Gus Fruh/Barton Creek 29 29 0 0 100.0
Greenbelt; City of Austin/BCP;
NE.............................
xx \3\--Falls Ranch; Private; NE 6 6 0 0 100.0
8--E Medina Lake; Texas 2,260 477 481 1,302 21.1
Department of Transportation,
Medina County, and private
rights-of-way; C...............
18--Medina Lake; Private; C..... 1,254 1,254 0 0 100.0
23--Eisenhower City Park/Camp 190 190 0 0 100.0
Bullis Military Training
Reservation; City of San
Antonio/Dept. of Defense; C....
25--Laurel Canyon (Bear Bluff); 2,000 2,000 0 0 100.0
Private Limited Partnership
with City of San Antonio
conservation easement; C.......
31--Rancho Diana (undeveloped 958 958 0 0 100.0
natural area); City of San
Antonio; C.....................
10--Garner State Park; Texas 686 686 0 0 100.0
Parks and Wildlife Department;
W..............................
24--Upper Long Canyon; Private; 5 5 0 0 100.0
W..............................
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\1\ Described under Species Needs, below. NE = northeast; C = central; W = west.
\2\ This experimental reintroduction is not one of the 17 naturally occurring EOs.
\3\ This newly discovered site does not yet have in EO ID or EO number in the TXNDD.
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 regulations that are in effect and therefore applicable to this
final rule are 50 CFR part 424, as amended by (a) revisions that we
issued jointly with the National Marine Fisheries Service in 2019
regarding both the listing, delisting, and reclassification of
endangered and threatened species and the criteria for designating
listed species' critical habitat (84 FR 45020; August 27, 2019); and
(b) revisions that we issued in 2019 eliminating for species listed as
threatened species are September 26, 2019, the Service's general
protective regulations that had automatically applied 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
[[Page 21847]]
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 species' expected response and
the effects of the threats--in light of those actions and conditions
that will ameliorate the threats--on an individual, population, and
species level. We evaluate each threat and its expected effects on the
species, then analyze the cumulative effect of all of the threats on
the species as a whole. We also consider the cumulative effect of the
threats in light of those actions and conditions that will have
positive effects on the species, such as any existing regulatory
mechanisms or conservation efforts. The Secretary determines whether
the species meets the definition of an ``endangered species'' or a
``threatened species'' only after conducting this cumulative analysis
and describing the expected effect on the species now and in the
foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as the
Services can reasonably determine that both the future threats and the
species' responses to those threats are likely. In other words, the
foreseeable future is the period of time in which we can make reliable
predictions. ``Reliable'' does not mean ``certain''; it means
sufficient to provide a reasonable degree of confidence in the
prediction. Thus, a prediction is reliable if it is reasonable to
depend on it when making decisions.
It is not always possible or necessary to define foreseeable future
as a particular number of years. Analysis of the foreseeable future
uses the best scientific and commercial data available and should
consider the timeframes applicable to the relevant threats and to the
species' likely responses to those threats in view of its life-history
characteristics. Data that are typically relevant to assessing the
species' biological response include species-specific factors such as
lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
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. The following is a summary of the key results
and conclusions from the SSA report; the full SSA report can be found
at Docket No. FWS-R2-ES-2021-0013 on <a href="https://www.regulations">https://www.regulations</a>.gov.
To assess the bracted twistflower's viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency supports the ability of the species to withstand
environmental and demographic stochasticity (for example, wet or dry,
warm or cold years), redundancy supports the ability of the species to
withstand catastrophic events (for example, droughts, large pollution
events), and representation supports the ability of the species to
adapt over time to long-term changes in the environment (for example,
climate changes). In general, the more resilient and redundant a
species is and the more representation it has, the more likely it is to
sustain populations over time, even under changing environmental
conditions. Using these principles, we identified the species'
ecological requirements for survival and reproduction at the
individual, population, and species levels, and described the
beneficial and risk factors influencing the species' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time. We use this information to inform our regulatory
decision.
Summary of Biological Status and Threats
In this discussion, we review the biological condition of the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability. We analyze these factors
both individually and cumulatively to determine the current condition
of the species and project the future condition of the species under
several plausible future scenarios.
Species Needs
Habitat Availability and Protection From Herbivory
Bracted twistflower habitat occurs on karstic, porous limestones
near the boundary of the Devils River or Edwards formations and Glen
Rose formations in central Texas. These juniper-oak woodlands and
shrublands experience hot, often dry summers and mild winters with
bimodal (spring and fall) precipitation patterns. Optimal microsites
for the bracted twistflower have less than 50 percent cover of woody
plant canopy with the most robust plants growing in full sun (Fowler
2010, pp. 10-12; Leonard 2010, pp. 30-32; Ramsey 2010, pp. 10-13, 20;
Leonard and Van Auken 2013, pp. 276-285). However, in areas with dense
populations of white-tailed deer and other herbivores, few individuals
survive except where they are protected from herbivory by a cover of
dense, spiny understory vegetation (McNeal 1989, p. 17; Damude and
Poole 1990, pp. 29-30; Poole et al. 2007, p. 470; Leonard 2010, p. 63).
Reproduction
Bracted twistflower is an annual species sustained through its
reserve of seeds in the soil. Thus, resilient populations must produce
more viable seeds than they lose through germination, herbivory, and
loss of viability. Individuals that have begun flowering are vulnerable
to herbivory by white-tailed deer, squirrels, and other herbivores,
including introduced ungulates; although robust plants may generate a
new flower stalk after the first stalk is removed, the loss of
resources likely reduces reproductive output and decreases resiliency.
Bracted twistflower reproduces primarily by outcrossing between
individuals that are not closely related; self-pollination produces
only small
[[Page 21848]]
amounts of seeds. Fertilization requires that two or more sexually
compatible individuals are located within the forage range of native
bee pollinators. The longevity of seed viability has not been
determined, although at least some seeds remain viable in the soil for
at least 7 years (Service 2021, p. 12). The known pollinators of
bracted twistflower are leafcutter bees (Megachile spp.) (Dieringer
(1991, pp. 341-343), which have an estimated forage range of 600 meters
(m) to 3 kilometers (km) (0.37 to 1.86 miles (mi)) (Mitchell 1936, pp.
124-125; Gathmann and Tscharntke 2002, pp. 760-761; Greenleaf et al.
2007, p. 593; Discover Life 2019); sweat bees (family Halictidae) may
also be effective pollinators (Service 2021, p. 5), but due to their
smaller size have correspondingly smaller forage ranges. Sexual
reproduction also increases genetic diversity, and thus representation,
which allows populations to be more likely to adapt and survive when
confronted with new pathogens, competitors, and changing environmental
conditions. For these reasons, successful reproduction likely requires
clustering of genetically diverse individuals within habitats that also
support leafcutter bees, sweat bees, and other native bee species.
Fall and winter rainfall stimulate bracted twistflower seed
germination; successive rainfall events that allow soil moisture to
persist may have greater effect than one or two heavy rains. In
addition to rain, other factors appear to stimulate germination, such
as the removal of competing vegetation, and possibly fire during a
previous season.
Minimum Viable Population Size
Populations of bracted twistflower must be large enough to have a
high probability of surviving for a prescribed period of time. For
example, Mace and Lande (1991, p. 151) propose that species or
populations be classified as vulnerable when the probability of
persisting 100 years is less than 90 percent. This metric of population
resilience is called minimum viable population (MVP). We adapted the
method published in Pavlik (1996, p. 137) to estimate an MVP for
bracted twistflower of about 1,800 individuals. This estimate of MVP is
based only on numbers of mature, flowering individuals because
juveniles that die before they reproduce do not contribute to the
effective population size or future genetic diversity.
Risk Factors
A primary driver of the bracted twistflower's status is habitat
loss due to urban and residential land development (McNeal 1989, p. 17;
Damude and Poole 1990, p. 51; Zippin 1997, p. 229; Fowler 2010, p. 2;
Pepper 2010, p. 5). A number of cities, including Austin, San Marcos,
New Braunfels, and San Antonio, were established along the Balcones
Escarpment due to the prevalence of springs. This area, known as the
Interstate 35 corridor, is one of the fastest-growing urban complexes
in the United States (TDC 2023, unpaginated). Urban development reduces
the redundancy and representation of the bracted twistflower and has
consumed all or most of the habitat at six EOs of the bracted
twistflower.
Habitat changes leading to lower sunlight intensity in the existing
habitat are another threat to the bracted twistflower as growth and
reproduction of the species, and thus resilience, increases with higher
light intensity and duration (Fowler 2010, pp. 1-18; Leonard 2010, pp.
1-86; Ramsey 2010, pp. 1-35; Leonard and Van Auken 2013, pp. 276-285).
Bracted twistflower habitats have likely experienced a decline in the
frequency of wildfire, which has allowed Ashe juniper and other woody
plant cover to increase within most bracted twistflower populations
(Bray 1904, pp. 14-15, 22-23; Fonteyn et al. 1988, p. 79; Fowler et al.
2012, pp. 1518-1521). These increases in woody plant cover reduce the
growth and reproduction of bracted twistflower.
Excessive herbivory by white-tailed deer and introduced ungulates
is a significant factor affecting the status of bracted twistflower
throughout the species' range, except where populations are protected
from deer by fencing or through intensive herd management (McNeal 1989,
p. 17; Damude and Poole 1990, pp. 52-53; Dieringer 1991, p. 341; Zippin
1997, pp. 39-197, 227; Leonard 2010, pp. 36-43; Fowler 2014, pp. 17,
19). Herbivory is exacerbated by the extremely high deer densities in
the Edwards Plateau of Texas (Zippin 1997, p. 227).
Both authorized and unauthorized recreation affects the species'
survival at several protected natural areas, as well as on private
lands. Hiking and mountain bike trails have impacted the populations at
Mt. Bonnell City Park, Barton Creek Preserve, Garner State Park, and
Bull Creek Park through trampling of the herbaceous vegetation and
severe soil erosion where trails cut directly through occupied habitat
(McNeal 1989, p. 19; Fowler 2010, p. 2; Bracted Twistflower Working
Group 2010, p. 3; Pepper 2010, pp. 5, 15, 17).
Small, isolated populations are less resilient and more vulnerable
to catastrophic losses caused by random fluctuations in recruitment or
variations in rainfall or other environmental factors (Service 2016, p.
20). Small populations are also less able to overwhelm herbivores to
ensure replenishment of the soil seed reserve (Service 2021, p. 33). In
addition to population size, it is likely that population density also
influences population viability, because reproduction requires
genetically compatible individuals to be clustered within the forage
range of the native bee pollinators (Service 2021, p. 33). Small,
reproductively isolated populations are also more susceptible to the
loss of genetic diversity, genetic drift, and inbreeding (Barrett and
Kohn 1991, pp. 3-30). This may reduce the ability of the species or
population to resist pathogens and parasites, adapt to changing
environmental conditions, or colonize new habitats. More than half of
the EOs observed since 1989 are at risk due to the demographic
consequences of small population sizes (significantly below the
estimated MVP level of 1,800 individuals), and many of the remaining
populations have very little genetic diversity and relatively high
levels of inbreeding (Pepper 2010, pp. 13, 15). The species as a whole
still possesses significant genetic diversity (Pepper 2010, pp. 4, 11,
15), but several of the core reservoirs of the species' genetic
diversity occur on private lands and may be lost to development.
Current Condition
Our assessment of the current species viability of bracted
twistflower is based on its resiliency, redundancy, and representation.
We ranked the current conditions of bracted twistflower EOs as high,
medium, low, or extirpated based on the following characteristics: The
resiliency (proportion of potential populations where habitat is
intact, as described above); the population sizes and trends (if known)
in remaining intact habitats; genetic diversity and inbreeding
coefficients (if known); the current levels of monitoring, vegetation
management, and protection from development, herbivores, and
recreational impacts on the remaining intact habitats. We considered
resiliency to be based upon the potential populations in intact
habitats (see table 1), which is one of several components that
contribute to current conditions. The current condition of each EO is
based upon the cumulative effects of these factors.
Resiliency
Our review of the TXNDD EO records (TXNDD 2018a,b) indicates that
[[Page 21849]]
relatively large pulses of bracted twistflower plants emerge in
specific areas (``source features'') during relatively few years, while
during most years few or no plants emerge. This wide annual variation
in germination makes it very difficult to determine the species'
population sizes and demographic trends (Service 2021, pp. 22-23,
appendix A). However, one indicator of the status of bracted
twistflower populations is the condition of their habitats. We define
potential population size as the maximum numbers observed in specific
areas during ``pulse'' years, when optimal conditions stimulate the
greatest amounts of seed germination, establishment, and survival to
successful reproduction. Thus, our estimate of the species' status is
based in part on the potential populations remaining in intact
habitats. The potential total number of individuals at the 17 naturally
occurring EOs observed since 1989 is 12,764 (not including 120 planted
at the experimental population at EO 33).
Since 1989, 14 percent of bracted twistflower habitat (a potential
population of 1,780 plants) has been completely destroyed in portions
of 6 EOs; 19 percent of bracted twistflower habitat (a potential
population of 2,496 plants) has been partially destroyed in portions of
5 EOs; and 67 percent (a potential population of 8,488 plants) remains
intact in portions of 15 naturally occurring EOs (note that each EO can
have intact, partially destroyed, and destroyed portions, so the total
is greater than the number of EOs). Nevertheless, this estimate
reflects only the losses due to habitat development and does not
account for populations that may have declined due to excessive
herbivory or juniper competition.
Only five of the remaining 17 naturally-occurring EOs are in high
condition, with only four of the remaining 17 naturally-occurring EOs
maintaining a potential intact population of at least 50 percent of the
estimated MVP value of 1,800 individuals. These populations are Barton
Creek Greenbelt and Wilderness Park (EO 17) and Rancho Diana (EO 31),
which are protected natural areas managed by the City of Austin and
City of San Antonio, respectively; Laurel Canyon (EO 25), which is
protected from development and land use change through a City of San
Antonio conservation easement; and a portion of Medina Lake (EO 18),
which landowners voluntarily conserve. The City of Austin also protects
17.9 acres of habitat (EO 7) from development and land use change at
the Ullrich Water Treatment Plant (Texas Parks and Wildlife Department
2018, p. 1), where there is a bracted twistflower population with a
potential maximum population of about 27 percent of the estimated MVP
level. Gus Fruh (EO 36) is small, but due to its proximity to EO 17
along Barton Creek, might be considered part of a Barton Creek
metapopulation. Mt. Bonnell City Park (EO 9), Garner State Park (EO
10), Eisenhower City Park (EO 23), Valburn Drive/Bull Creek District
Park (EO 35), and Falls Ranch (no EO number) are all currently far
below the MVP level. Four EOs have been mostly lost to development: Cat
Mountain (EO 2), East Medina (EO 8), Mt. Bonnell City Park, and Valburn
Drive/Bull Creek District Park. Two EOs have been completely lost to
development: Mesa (EO 21) and Rough Hollow Ranch (EO 32). No
individuals have been seen in recent years at two additional EOs,
Bright Leaf SNA (EO 26) and Upper Long Canyon (EO 24), nor at the
experimental population at Vireo Preserve (EO 33). In summary, none of
the EOs of bracted twistflower have reached the MVP level in the last
decade, most have low resiliency, many have gradually declined over the
years that they have been monitored, and six EOs have been extirpated
or very nearly extirpated.
Redundancy and Representation
Bracted twistflower currently possesses significant genetic
diversity at the species level, but populations are genetically
distinct and there is no gene flow between most populations (Pepper
2010, p. 11). However, of the 10 EOs assessed by Pepper, low levels of
genetic diversity occurred in all or parts of 4 EOs (40 percent), and
all or parts of 5 EOs (50 percent) had high levels of inbreeding; low
genetic diversity and inbreeding were more prevalent in smaller, more
isolated populations (Pepper 2010, pp. 13, 15). Therefore, although the
species still possesses adequate genetic and ecological representation,
many of its populations are at risk, due to small population sizes, low
levels of genetic diversity, lack of gene flow, and inbreeding.
Representation areas are sectors of a species' geographic range
where important constituents of the species' genetic and ecological
diversity occur. The known EOs of bracted twistflower are clustered in
three geographic areas separated from each other by 50 km (30 mi) or
more. Slight differences in day length, solar elevation, temperature,
and precipitation occur over the species' range from northeast to
southwest. Austin has more moderate summer and winter temperatures, 40
percent fewer days of freezing weather, and 40 percent greater annual
rainfall, compared to Uvalde County. These climate differences also
create variation in the structure and composition of associated
vegetation. Pepper (2010, pp. 4, 15) identified major, distinct
clusters of genetic diversity in Medina County and in the Austin area.
Based on these genetic data and the geographic clustering of
populations, we identified three representation areas in the
northeastern, central, and western portions of the species' range
(Service 2021, figure 9).
Two EOs are extirpated (EO 21 and EO 32), and five EOs have low
condition ranks and negligible contributions to redundancy. The
northeastern representation area has six EOs with high or medium
condition ranks, conferring an intermediate degree of population
redundancy within this area. The central representation area also has
intermediate redundancy because it has four EOs with high- or medium-
condition ranks. In the western representation area, only EO 10 has a
medium condition rank, and no population pulses have been observed
there in recent years. This representation area appears to have very
low redundancy; however, few surveys have been conducted in that area,
so undiscovered populations might still exist.
In summary, bracted twistflower has five EOs in high condition,
with only four that are maintaining a potential population size of 50
percent of the MVP. Two representation areas have intermediate
redundancy. Genetic representation at the species level is adequate,
but 40 to 50 percent of EOs had low genetic diversity and high
inbreeding and inbreeding also occurred in three larger populations.
The species has lost all or parts of six EOs and one-third of its
potential population size over the last 30 years.
Projections of the Species' Future Viability
The SSA projects viability during two future periods, from 2030 to
2040 and from 2050 to 2074. These timeframes represent the likely
minimum and maximum lengths of time that seeds could remain viable in
the soil, and therefore the potential of declining EOs to recover from
viable seeds in the soil seed reserve. This timeframe also corresponds
closely to climate projections and human population growth projections,
a proxy for urban development (USGCRP 2017, entire; USGS 2019,
unpaginated; TDC 2023, unpaginated). Although we do not know the
maximum length of time that
[[Page 21850]]
bracted twistflower seeds can remain viable in the soil seed reserve,
observations of the experimental population at Vireo Preserve reveal
that at least some seeds are viable after 7 years. Nevertheless, we do
not know the maximum length of time that bracted twistflower seeds may
remain viable in the soil. Consequently, we used a surrogate species
approach based on a long-term experiment on annual plant seed longevity
in the soil which found that 60 percent of annual and biennial plant
species still germinated after 15 years in the soil, but by 35 and 50
years, viable seeds persisted for only 30 percent and 25 percent of the
species, respectively (Telewski and Zeevart 2002, pp. 1285-1288).
Therefore, it is likely that soil seed reserves of bracted twistflower
will remain viable at least 10 to 20 years and, if not replenished by
new crops of seeds, will become depleted after 35 to 50 years.
The projections of future viability also considered three different
scenarios representing an improvement over current conditions,
continuation of current trends, or deterioration beyond current
conditions. These scenarios were based on seven components that
influence this species' status and their cumulative effects on the
species: the extent of conservation support, effects of regional
development, survey results, documentation of the geographic range,
effectiveness of habitat management, effectiveness of population
management, and effects of climate changes. Table 2, below, summarizes
the projected species viability during each of the two timeframes and
under each of the three scenarios. Under the ``improvement'' scenario,
the number of EOs in high condition, currently 5, would increase to 10
by 2030-2040 and to 13 by 2050-2074, leading to an increase in species
resiliency. In this scenario, species redundancy and representation
remain stable. Under the ``current trends continue'' scenario, the
number of extirpated EOs would increase to 4 by 2030-2040 and to 10 by
2050-2074, leading to a loss of redundancy. Both EOs in the western
representation area would be extirpated by 2050-2074, leading to a
reduction in species representation. Conditions within 14 EOs would
deteriorate under this scenario, leading to a reduction in species
resiliency. The ``deterioration'' scenario projects extirpation of 11
and 15 EOs during these periods, respectively, leading to a significant
reduction in species redundancy and representation. By 2050-2074, all
EOs in the western representation area would be extirpated, with only
two remaining in the northeastern representation area and one in the
central representation area. Under this scenario, species resiliency
declines across all sites. For more information, see the bracted
twistflower SSA report (Service 2021, pp. 51-66). These scenarios
should not be interpreted as mutually exclusive. The components of the
scenarios will interact independently; future viability will likely
result from a combination of conditions analyzed in these scenarios.
For example, conservation support and habitat management could be
better than expected by 2050, but climate changes and regional growth
could have more severe impacts than expected.
Table 2--Projected Viabilities of Bracted Twistflower During Two Future Timeframes and Under Three Scenarios
----------------------------------------------------------------------------------------------------------------
Future scenarios
-----------------------------------------------------------------------
Current condition Improvement Current trends Deterioration
EO No. rank ------------------- continue ---------------------------------
-------------------
Period/rank Period/rank Period/rank
----------------------------------------------------------------------------------------------------------------
Northeastern Representation Area
----------------------------------------------------------------------------------------------------------------
2.................. Low................ 2030-2040: Low... 2030-2040: Low... 2030-2040: Extirpated.
2050-2074: Medium 2050-2074: 2050-2074: Extirpated.
Extirpated.
7.................. High............... 2030-2040: High.. 2030-2040: High.. 2030-2040: Low.
2050-2074: High.. 2050-2074: High.. 2050-2074: Low.
9.................. Medium............. 2030-2040: High.. 2030-2040: Low... 2030-2040: Extirpated.
2050-2074: High.. 2050-2074: 2050-2074: Extirpated.
Extirpated.
17................. High............... 2030-2040: High.. 2030-2040: High.. 2030-2040: Low.
2050-2074: High.. 2050-2074: Medium 2050-2074: Low.
21................. Extirpated......... 2030-2040: 2030-2040: 2030-2040: Extirpated.
Extirpated. Extirpated. 2050-2074: Extirpated.
2050-2074: 2050-2074:
Extirpated. Extirpated.
26................. Low................ 2030-2040: Medium 2030-2040: 2030-2040: Extirpated.
2050-2074: Medium Extirpated. 2050-2074: Extirpated.
2050-2074:
Extirpated.
32................. Extirpated......... 2030-2040: Medium 2030-2040: 2030-2040: Extirpated.
2050-2074: Medium Extirpated. 2050-2074: Extirpated.
2050-2074:
Extirpated.
33................. Low................ 2030-2040: Medium 2030-2040: 2030-2040: Extirpated.
2050-2074: High.. Extirpated. 2050-2074: Extirpated.
2050-2074:
Extirpated.
35................. Medium............. 2030-2040: High.. 2030-2040: Low... 2030-2040: Low.
2050-2074: High.. 2050-2074: Low... 2050-2074: Extirpated.
36................. High............... 2030-2040: High.. 2030-2040: Medium 2030-2040: Low.
2050-2074: High.. 2050-2074: Low... 2050-2074: Extirpated.
xx \1\............. Medium............. 2030-2040: Medium 2030-2040: Low... 2030-2040: Extirpated.
2050-2074: High.. 2050-2074: 2050-2074: Extirpated.
Extirpated.
----------------------------------------------------------------------------------------------------------------
Central Representation Area
----------------------------------------------------------------------------------------------------------------
8.................. Low................ 2030-2040: Medium 2030-2040: Low... 2030-2040: Extirpated.
2050-2074: Medium 2050-2074: 2050-2074: Extirpated.
Extirpated.
18................. Medium............. 2030-2040: High.. 2030-2040: Medium 2030-2040: Low.
2050-2074: High.. 2050-2074: Low... 2050-2074: Extirpated.
23................. Medium............. 2030-2040: High.. 2030-2040: Low... 2030-2040: Extirpated.
2050-2074: High.. 2050-2074: Low... 2050-2074: Extirpated.
[[Page 21851]]
25................. High............... 2030-2040: High.. 2030-2040: Medium 2030-2040: Low.
2050-2074: High.. 2050-2074: Low... 2050-2074: Extirpated.
31................. High............... 2030-2040: High.. 2030-2040: High.. 2030-2040: Medium.
2050-2074: High.. 2050-2074: High.. 2050-2074: Low.
----------------------------------------------------------------------------------------------------------------
Western Representation Area
----------------------------------------------------------------------------------------------------------------
10................. Medium............. 2030-2040: High.. 2030-2040: Low... 2030-2040: Extirpated.
2050-2074: High.. 2050-2074: 2050-2074: Extirpated.
Extirpated.
24................. Low................ 2030-2040: Medium 2030-2040: Low... 2030-2040: Extirpated.
2050-2074: High.. 2050-2074: 2050-2074: Extirpated.
Extirpated.
----------------------------------------------------------------------------------------------------------------
\1\ This newly discovered site does not yet have in EO ID or EO number in the TXNDD.
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have not
only analyzed individual effects on the species, but we have also
analyzed their potential cumulative effects. We incorporate the
cumulative effects into our SSA analysis when we characterize the
current and future condition of the species. To assess the current and
future condition of the species, we undertake an iterative analysis
that encompasses and incorporates the threats individually and then
accumulates and evaluates the effects of all the factors that may be
influencing the species, including threats and conservation efforts.
Because the SSA framework considers not just the presence of the
factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative effects analysis.
Conservation Efforts and Regulatory Mechanisms
The Bracted Twistflower Working Group, a consortium of Federal,
State, and local agencies, researchers, and conservation organizations,
has met informally at least annually since 2000, and has worked
actively to promote the conservation and recovery of this species. The
Service, Texas Parks and Wildlife Department (TPWD), the City of
Austin, Travis County, the Lower Colorado River Authority, and the Lady
Bird Johnson Wildflower Center established a voluntary memorandum of
agreement to protect, monitor, and restore bracted twistflower and its
habitats on Balcones Canyonlands Preserve (BCP) tracts. Five extant EOs
and one experimental population are protected through the agreement,
including three of the five populations in a high current condition
(see table 2, above). The City of San Antonio has actively protected
and managed EOs at Eisenhower Park and Rancho Diana; the latter
continues to be one of the largest remaining populations. The City of
San Antonio and The Nature Conservancy own a conservation easement to
protect 222 ha (549 ac) in Medina County for watershed conservation;
this includes EO 25, which has one of the largest extant bracted
twistflower populations (City of San Antonio and The Nature
Conservancy, 2016). All or parts of 11 EOs are located on State or
local conservation land.
Summary of Comments and Recommendations
In the proposed rule published on November 10, 2021 (86 FR 62668),
we requested that all interested parties submit written comments on the
proposal by January 10, 2022. We also contacted appropriate Federal and
State agencies, scientific experts and organizations, and other
interested parties and invited them to comment on the proposal.
Newspaper notices inviting general public comment were published in the
Uvalde Leader, Austin American Statesman, and the San Antonio Express.
We did not receive any requests for a public hearing.
Peer Reviewer Comments
As discussed in Peer Review above, we received comments from one
peer reviewer. We reviewed all comments we received from the peer
reviewer for substantive issues and new information regarding the
information contained in the SSA report. The peer reviewer stated that
the SSA is an outstanding compendium of what we know about this
species. This reviewer provided additional information, clarifications,
and suggestions to improve the final SSA report, which we adopted. They
also provided the following substantive critique of our analyses of
current and future conditions:
(1) Comment: The peer reviewer stated that our assessments of
current and future viability of the Travis County populations in the
northeastern representation area were too optimistic.
Our response: The final two paragraphs of the executive summary
within the SSA report that was reviewed by the peer reviewer
incorrectly stated the current conditions and projections of future
viability and reported higher ranks for current conditions and all
three future scenarios than our analyses actually determined. This
error was corrected in the SSA report prior to the publication of the
proposed rule (86 FR 62668; November 10, 2021). Sections 5 (Current
Conditions) and 6 (Projections of Future Viability) of the SSA report
that the peer reviewer reviewed did present the analyses correctly. The
peer reviewer may also have misinterpreted our definition of the medium
condition rank. We added information to the final SSA report to clarify
the meaning of the medium condition rank.
Comments From States
(2) Comment: The Texas Parks and Wildlife Department (TPWD)
commented that critical habitat on private lands could harm
relationships with landowners and stated that the benefits of excluding
critical habitat on private land without landowner support outweigh the
benefits of designating the area as critical habitat.
Our response: When making a critical habitat designation, the
Service is
[[Page 21852]]
required to identify areas that are essential to the conservation of
the species, regardless of land ownership. The areas being designated
as critical habitat contain the necessary physical and biological
features for the bracted twistflower and are essential to the
conservation of the species into the future. The Service did not
receive any comments from private landowners opposing the designation
of critical habitat on their land. While we are not required to contact
landowners when making critical habitat designations, we understand
that cooperative conservation can be very successful. The Service
supports voluntary conservation through our Partners for Fish and
Wildlife Program, which provides funding for habitat projects on
private lands that benefit Federal trust species.
Public Comments
(3) Comment: The City of Austin requested an exclusion to a portion
of proposed critical habitat Subunit 1d, which is adjacent to the
Ullrich Water Treatment Plant, to allow for future infrastructure
projects and proposed including additional adjacent lands to compensate
for the exclusion. They also stated that they are unaware of any record
of the species within the area for which they requested an exclusion.
Our response: Proposed Subunit 1d has confirmed records of bracted
twistflower, including some records that may have been within the area
requested for exclusion by the City of Austin (City of Austin 2016,
pers. comm.; Fowler 2014, unpaginated; TXNDD 2018b, p. 3 unpaginated).
However, based on this comment, we examined the survey data again and
determined that plants were last documented in the easternmost polygon
in 1989 with a geographic precision of plus-or-minus 164 ft (50 m). Due
to the low precision, we cannot confirm whether this polygon was
occupied, and the species has not been documented there since, despite
regular monitoring. Additionally, we do not have any records of plants
documented within the southernmost polygon. Therefore, we find that the
best available information indicates that this area is no longer
occupied. As a result, the area does not qualify as occupied under the
first prong of the Act's definition of critical habitat. We then
assessed whether these areas should be included under the second prong
of the definition of critical habitat--areas that are not occupied at
the time of listing but are essential to the conservation of the
species. We determined that they are not essential for the conservation
of the species because we are designating areas in all three
representation areas, including areas that preserve the populations
with the highest resiliency, and recovery of the species can be
achieved by maximizing populations in occupied areas, see Criteria Used
to Identify Critical Habitat. As a result, we revised the boundaries of
the final critical habitat designation to remove these portions of this
unit. Because the area is no longer included in the critical habitat
designation, the exclusion analysis for this area is not necessary.
Numerous recent occurrence records occur within the westernmost
polygon in the Subunit 1d; therefore, we continue to conclude that this
portion of the proposed subunit is occupied by the species (City of
Austin 2016, pers. comm.; Fowler 2014, unpaginated; TXNDD 2018b,
unpaginated). We considered the City of Austin's request for exclusion
for this area. The economic analysis did not identify significant costs
related to critical habitat, and the City of Austin did not provide
adequate economic information regarding any of the activities
identified. The City of Austin also did not provide information or a
reasoned rationale supporting their requests for exclusion, which is
necessary for the Service to engage in an exclusion analysis. Critical
habitat does not restrict access to property. 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. Because
the areas we are designating as critical habitat in this rule are
considered occupied, the majority of costs are not associated with the
critical habitat designation but with the listing of the species as
threatened.
(4) Comment: The City of Austin proposed to add additional areas to
our critical habitat designation within the Balcones Canyonland
Preserve adjacent to the Ullrich Water Treatment Plant.
Our response: When developing our critical habitat proposal, we
relied on a model of the habitat needs of the species to determine the
boundaries of the proposed units. The areas the City of Austin proposed
to add to the critical habitat designation are outside the known soil
formation, slope, and elevational range of known occupied sites in the
area. Additionally, these areas are currently unoccupied, and we do not
know if they would be able to become occupied in the future. Therefore,
we conclude that these areas are not essential to the conservation of
bracted twistflower, and we are not amending our designation to include
them.
(5) Comment: One commenter stated that juniper encroachment is not
a threat to the bracted twistflower and that the removal of juniper and
prescribed burning would be detrimental to the species.
Our response: Our assessment that juniper encroachment and changes
in wildfire frequency threaten bracted twistflower is based on
scientific data and observations. Two assessments (McNeal 1989, p. 17;
Damude and Poole 1990, pp. 29, 30, 46) observed that bracted
twistflower plants can occur under dense shrub cover due to severe
herbivory, but are larger, more vigorous, and reproduce more in the
open, suggesting that open woodlands are preferred habitats. Two
master's theses (Ramsey 2010, p. 20; Leonard 2010, p. 63), the final
report of a section 6-funded research project (Fowler 2010, pp. 9-12),
and two peer-reviewed scientific publications (Fowler et al. 2012, pp.
1516-1521; Leonard and Van Auken 2013, pp. 282-284) documented
increased growth and reproductive output for individuals that are
exposed to direct sunlight at least part of the day, when deer
herbivory is prevented. These authors concluded that dense brush may
serve as a refugium from herbivory, but it is not the species' optimal
habitat. These conclusions are further supported by the species'
positive response to deer-fencing and brush thinning conducted by the
City of San Antonio at Rancho Diana Natural Area. Furthermore, two of
the largest populations, Laurel Canyon and Rancho Diana, occur in
relatively open vegetation of low shrubs, where there is little or no
juniper cover. This body of research provides evidence that the bracted
twistflower is best adapted to the edges and canopy gaps of juniper-oak
woodlands that were historically maintained by periodic wildfires. We
emphasize that listing bracted twistflower as a threatened species and
the designation of its critical habitat do not require landowners,
including the City of Austin, to manage the species' habitats in a
particular way.
(6) Comment: One commenter stated that the SSA report for the
bracted twistflower was overly optimistic in current and future
conditions and the species should be listed as endangered rather than
threatened. However, no new information was provided.
Our response: The fundamental difference between an endangered and
a threatened species is the time horizon at which the species becomes
in danger of extinction. An endangered species is
[[Page 21853]]
currently at risk of extinction, while a threatened species is likely
to become at risk of extinction in the foreseeable future. The bracted
twistflower currently occurs primarily on protected natural areas.
While some populations have declined or have not been recently
monitored, others are currently stable and likely to maintain stable or
increasing populations into the foreseeable future provided that their
habitats are effectively managed. Additionally, as an annual plant,
effective management and restoration can boost population sizes within
a relatively short timeframe. One of the primary threats to the species
is urban and residential development. This threat is not anticipated to
affect the species within the protected natural areas since these areas
are protected from development. Other threats, such as ungulate
herbivory and juniper encroachment, could cause populations on
protected sites to decline, if they are not effectively managed. The
SSA report (Service 2021, p. 53) projects that such declines could
occur as soon as 2030 to 2040 under the ``current trends continue''
scenario. Therefore, the Service has determined that this species is
not currently in danger of extinction, but it is likely to become so
within the foreseeable future without the protections of the Act. A
more complete discussion of our finding and rationale can be found
under Determination of Bracted Twistflower's Status, below.
(7) Comment: Two commenters stated that the bracted twistflower is
endangered within a significant portion of its range. Specifically, the
commenters were concerned with the western and northeastern
representation areas.
Our response: In order for a species to be listed due to its status
within a significant portion of its range, the species must have a
different status in that portion and that portion must also be
significant. Although several bracted twistflower populations in the
northeastern representation area have been destroyed or damaged by
development, five populations are on protected natural areas, including
two relatively large populations at Barton Creek and Ullrich. The City
of Austin's annual monitoring data from 2012 through 2018 (City of
Austin 2018, entire) indicate wide annual variation in the numbers of
individuals that germinate and flower, but no detectable trends
occurred over this timeframe. For this reason, we determined that the
populations within this portion of the range are not currently in
danger of extinction and therefore have the same status as the species
rangewide. A significant portion of the range under the Act is not
necessarily equivalent to representation areas used in SSAs to describe
a species' condition. The SSA placed the two Uvalde County populations
in the western representation area due to their physical separation
from the central populations. However, these Uvalde County populations
constitute the western-most periphery of the species' range, rather
than a significant portion of the range. Furthermore, the Garner State
Park population has been monitored very infrequently, and the other
population, on private land, was last observed in 1997. Consequently,
we have no information upon which to judge the current status of these
populations and therefore cannot conclude that they have a different
status from the remainder of the range.
(8) Comment: One commenter recommended that we designate unoccupied
critical habitat for the species and suggested Vireo Preserve as a
potential location.
Our response: In order to designate critical habitat in areas not
occupied by the species at the time of listing, the Service must
determine that the area is essential to the conservation of the
species. During our analysis, we determined that the occupied areas we
are designating are adequate to ensure the conservation of the species
and that designating unoccupied areas as critical habitat was not
essential for the conservation of the species. Additionally, we have
concerns about the ability of the Vireo Preserve to support the
species. Bracted twistflower had been introduced within the Vireo
Preserve in the past and did not survive due to high levels of
herbivory from white-tailed deer and introduced ungulates. Because we
determined that Vireo Preserve is not essential to the conservation of
the species, we are not designating it as unoccupied critical habitat.
(9) Comment: One commenter recommended that the Service include
rights-of-way within Medina County as critical habitat.
Our response: We are not designating critical habitats in areas
that lack natural vegetation, such as roads and buildings, because we
determined that they do not contain the essential physical and
biological features due to development or significant disturbance.
Although the species has been found along highway and road rights-of-
way in Medina County, due to frequent soil disturbance and the
displacement of native vegetation by introduced, invasive grasses, such
as bermudagrass (Cynodon dactylon) and King Ranch bluestem
(Bothriochloa ischaemum), these are not the areas where we would
emphasize recovery of the species.
(10) Comment: One commenter stated that, although our estimates of
potential populations are probably the best available method, our
evaluation overestimated resiliency and underestimated the potential
extirpation of individual populations. Worsening conditions within many
sites, due to deer browsing, trampling, and more, have resulted in
declining population sizes and exhaustion of the persistent seed
reserve. The commenter stated that, although the numbers in the
proposed rule's table 2 (86 FR 62668, November 10, 2021, pp. 62675-
62676) are correctly interpreted as site potentials, they are almost
certainly overestimates of population sizes in the context of the
resiliency analysis.
Our response: Estimates of potential populations are often larger
than the numbers of flowering individuals seen in any given year. As an
annual plant, bracted twistflower persists through its soil seed
reserve. As the commenter noted, soil seed reserves decline if not
replenished through successful reproduction. However, we have no data
on this particular species' seed reserve capacity and limited data on
seed longevity in the soil. The method we used is an empirical estimate
of the seed reserve potential to generate reproductive individuals that
is derived from the largest numbers of individuals observed in the
extant portions of a population's habitat. We acknowledge the
limitations of this method, but as noted, it is the best available
scientific information.
(11) Comment: One commenter stated that population estimates used
within the SSA report overestimate population sizes and suggested a
better estimate would be based on harmonic means. This commenter also
stated that genetically effective population sizes are the best
measures of population sizes.
Our response: The harmonic mean, is a type of average (The American
Heritage Dictionary 1982, p. 595), is a useful measure for highly
variable population sizes. However, this approach requires a relatively
large number of annual population censuses. We do not have enough
population census data for most populations, and in other cases
censuses were conducted only during peak years. In these cases,
harmonic means are not very meaningful. The data required to calculate
harmonic means exist for only for a few sites monitored annually by
staffs of the City of Austin and City of San Antonio; we will include
the
[[Page 21854]]
harmonic means for those sites in future revisions to the SSA report.
Determination of Bracted Twistflower'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
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
and the cumulative effect of the threats under the Act's section
4(a)(1) factors to the bracted twistflower.
Bracted twistflower occurs in three geographically separate
representation areas, which experience differing regional climate and
biotic factors. Although threats are currently acting on the bracted
twistflower throughout its range, 11 EOs were found to be in high or
medium r condition currently, and 11 EOs (including one experimental
population) occur on protected, State-owned or locally owned
conservation lands. Thus, after assessing the best available
information, we conclude that the bracted twistflower is not currently
in danger of extinction throughout all of its range. We, therefore,
proceed with determining whether the bracted twistflower is likely to
become endangered within the foreseeable future throughout all of its
range.
For the purpose of this determination, the foreseeable future is 50
years. Based on the best available information, this is the period of
time in which we can make a reliable prediction of the bracted
twistflower's viability. These timeframes represent the likely minimum
and maximum lengths of time that seeds could remain viable in the soil,
and therefore the potential of declining EOs to recover from viable
seeds in the soil seed reserve. This timeframe also corresponds closely
to climate projections and human population growth projections, a proxy
for urban development (USGCRP 2017, entire; USGS 2019, unpaginated; TDC
2023, unpaginated). In our projections of future viability, the best
available information demonstrates that the time period during which we
can reasonably expect that a population could recover from the soil
seed reserve if managed appropriately is 10 to 20 years. The best
available information further demonstrates that soil seed reserves
would die out if not replenished in a 35- to 50-year timeframe.
Accordingly, these two timeframes bracket the span of time during which
populations will either be recovered or extirpated, and they indicate
the period of time it is reasonable for us to make a reliable
prediction as to the species' status in the foreseeable future.
Under the ``current trends continue'' scenario, the number of
extirpated EOs increases from 2 to 10. Under the ``deterioration''
scenario, 15 EOs will become extirpated, and the condition rank of the
remaining 3 EOs will be low. Development, which results in the
permanent loss of habitat, is the most significant threat to the
bracted twistflower, and this threat is expected to continue into the
future. Habitats throughout the species' range have been degraded due
to habitat modification and increased browsing pressure from white-
tailed deer and introduced ungulates. Threats from habitat loss,
habitat modification, increased herbivory, and loss of genetic
diversity are cumulative and will likely result in further degradation
without management intervention. Although genetic diversity is high
within some populations, there is no appreciable gene flow between
populations; this is likely to cause a loss of overall genetic
diversity at the population and species level over time (Pepper 2010,
p. 11). Populations of bracted twistflower have declined and are
expected to continue to decline into the future. Our analysis of the
species' current and future conditions show that the population and
habitat factors used to determine the resiliency, representation, and
redundancy of bracted twistflower are likely to continue to decline to
the degree that the species is likely to become in danger of extinction
within the foreseeable future throughout all of its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. The court in Center for Biological Diversity v. Everson,
2020 WL 437289 (D.D.C. Jan. 28, 2020) (Everson), vacated the aspect of
the Final Policy on Interpretation of the Phrase ``Significant Portion
of Its Range'' in the Endangered Species Act's Definitions of
``Endangered Species'' and ``Threatened Species'' (Final Policy; 79 FR
37578, July 1, 2014) that provided the Service does not undertake an
analysis of significant portions of a species' range if the species
warrants listing as threatened throughout all of its range. Therefore,
we proceed to evaluating whether the species is endangered in a
significant portion of its range--that is, whether there is any portion
of the species' range for which both (1) the portion is significant,
and (2) the species is in danger of extinction in that portion.
Depending on the case, it might be more efficient for us to address the
``significance'' question or the ``status'' question first. We can
choose to address either question first. Regardless of which question
we address first, if we reach a negative answer with respect to the
first question that we address, we do not need to evaluate the other
question for that portion of the species' range.
Following the court's holding in Everson, we now consider whether
there are any significant portions of the species' range where the
species is in danger of extinction now (i.e., endangered). In
undertaking this analysis for the bracted twistflower, we choose to
address the status question first--we consider information pertaining
to the geographic distribution of the species and the threats that the
species faces to identify any portions of the range where the species
is endangered.
The statutory difference between an endangered species and a
threatened species is the timeframe in which the species becomes in
danger of extinction; an endangered species is in danger of extinction
now while a threatened species is not in danger of extinction now but
is likely to become so in the foreseeable future. Thus, we reviewed the
best scientific and commercial data available regarding the time
horizon for the threats that are driving the bracted twistflower to
warrant listing as a threatened species throughout all of its range. We
considered whether the
[[Page 21855]]
threats are geographically concentrated in any portion of the species'
range in a way that would accelerate the time horizon for the species'
exposure or response to the threats. We examined the following threats:
habitat loss to development (Factor A); changes in fire frequency and
the composition and structure of vegetation (Factor A); excessive
herbivory by white-tailed deer and other ungulates (Factor C); and
demographic and genetic consequences of small, isolated populations
(Factor E), including cumulative effects.
All of the known threats are present throughout the bracted
twistflower's range, but to different degrees in different areas. We
identified the western portion of the species' range, consisting of two
EOs in Uvalde County, and determined that there is a concentration of
threats from browsing of white-tailed deer and other ungulates. These
threats are not unique to this area, but are acting at greater
intensity here (e.g., larger populations of white-tailed deer and other
ungulates). One EO is fairly large in size and is in medium condition
with a moderate level of genetic diversity. The other EO within Uvalde
County only has data from one observation in 1997, which documented
five plants, and is in low condition.
Although some threats to the bracted twistflower are concentrated
in Uvalde County, the best scientific and commercial data available do
not indicate that the concentration of threats, or the species'
responses to the concentration of threats, are likely to accelerate the
time horizon in which the species becomes in danger of extinction in
that portion of its range. As a result, the bracted twistflower is not
in danger of extinction now within Uvalde County. Since the larger
population in this portion is in medium condition, this portion is not
currently in danger of extinction. Therefore, we determine that the
species is likely to become in danger of extinction within the
foreseeable future throughout all of its range. This does not conflict
with the courts' holdings in Desert Survivors v. U.S. Department of the
Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D. Cal. 2018) and Center for
Biological Diversity v. Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz.
2017) because, in reaching this conclusion, we did not need to consider
whether any portions are significant and, therefore, did not apply the
aspects of the Final Policy's definition of ``significant'' that those
court decisions held were invalid.
Determination of Status
Our review of the best scientific and commercial data available
indicates that bracted twistflower meets the Act's definition of a
threatened species. Therefore, we are listing the bracted twistflower
as a threatened species in accordance with sections 3(20) and 4(a)(1)
of the Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition 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.
The recovery planning process begins with development of a recovery
outline made available to the public soon after a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions while a recovery plan is being developed.
Recovery teams (composed of species experts, Federal and State
agencies, nongovernmental organizations, and stakeholders) may be
established to develop and implement recovery plans. The recovery
planning process involves the identification of actions that are
necessary to halt and reverse the species' decline by addressing the
threats to its survival and recovery. The recovery plan identifies
recovery criteria for review of when a species may be ready for 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. Revisions of the plan may be
done to address continuing or new threats to the species, as new
substantive information becomes available. The recovery outline, draft
recovery plan, final recovery plan, and any revisions will be available
on our website as they are completed (<a href="https://www.fws.gov/program/endangered-species">https://www.fws.gov/program/endangered-species</a>), or from our Austin 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.
Following publication of this final rule, 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 bracted twistflower.
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 the bracted twistflower. 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.
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
[[Page 21856]]
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 must enter into consultation
with the Service.
Federal agency actions within the species' habitat that may require
conference or consultation or both as described in the preceding
paragraph include management and any other landscape-altering
activities on projects permitted by the Federal Highways
Administration, U.S. Department of Agriculture's Natural Resources
Conservation Service, U.S. Army Corps of Engineers, Department of
Defense's Joint Base San Antonio, and Federal Emergency Management
Agency.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed, those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a final listing
on proposed and ongoing activities within the range of a listed
species. The discussion below regarding protective regulations under
section 4(d) of the Act complies with our policy.
II. Final Rule Issued Under Section 4(d) of the Act
Background
Section 4(d) of the Act contains two sentences. The first sentence
states that the Secretary shall issue such regulations as she deems
necessary and advisable to provide for the conservation of species
listed as threatened species. The U.S. Supreme Court has noted that
statutory language similar to the language in section 4(d) of the Act
authorizing the Secretary to take action that she ``deems necessary and
advisable'' affords a large degree of deference to the agency (see
Webster v. Doe, 486 U.S. 592, 600 (1988)). Conservation is defined in
the Act to mean the use of all methods and procedures which are
necessary to bring any endangered species or threatened species to the
point at which the measures provided pursuant to the Act are no longer
necessary. Additionally, the second sentence of section 4(d) of the Act
states that the Secretary may by regulation prohibit with respect to
any threatened species any act prohibited under section 9(a)(1), in the
case of fish or wildlife, or section 9(a)(2), in the case of plants.
Thus, the combination of the two sentences of section 4(d) provides the
Secretary with wide latitude of discretion to select and promulgate
appropriate regulations tailored to the specific conservation needs of
the threatened species. The second sentence grants particularly broad
discretion to the Service when adopting one or more of the prohibitions
under section 9.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, courts have upheld, as a valid
exercise of agency authority, rules developed under section 4(d) that
included limited prohibitions against takings (see Alsea Valley
Alliance v. Lautenbacher, 2007 WL 2344927 (D. Or. 2007); Washington
Environmental Council v. National Marine Fisheries Service, 2002 WL
511479 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do
not address all of the threats a species faces (see State of Louisiana
v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative
history when the Act was initially enacted, ``once an animal is on the
threatened list, the Secretary has an almost infinite number of options
available to [her] with regard to the permitted activities for those
species. [She] may, for example, permit taking, but not importation of
such species, or [she] may choose to forbid both taking and importation
but allow the transportation of such species'' (H.R. Rep. No. 412, 93rd
Cong., 1st Sess. 1973).
The provisions of this 4(d) rule will promote conservation of the
bracted twistflower by prohibiting the following activities, except as
otherwise authorized or permitted: importing or exporting; certain acts
related to removing, damaging, and destroying; delivering, receiving,
carrying, transporting, or shipping in interstate or foreign commerce
in the course of commercial activity; and selling or offering for sale
in interstate or foreign commerce. The provisions of this rule are one
of many tools that we will use to promote the conservation of the
bracted twistflower.
As mentioned previously in Available Conservation Measures, 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.
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 Federal actions that are subject to
the section 7 consultation process are actions on State, Tribal, local,
or private lands that require a Federal permit (such as a permit from
the U.S. Army Corps of Engineers under section 404 of the Clean Water
Act (33 U.S.C. 1251 et seq.) or a permit from the Service under section
10 of the Act) or that involve some other Federal action (such as
funding from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat--and actions
on State, Tribal, local, or private lands that are not federally
funded, authorized, or carried out by a Federal agency--do not require
section 7 consultation.
This obligation does not change in any way for a threatened species
with a species-specific 4(d) rule. Actions that result in a
determination by a Federal agency of ``not likely to adversely affect''
continue to require the Service's written concurrence and actions that
are ``likely to adversely affect'' a species require formal
consultation and the formulation of a biological opinion.
Provisions of the 4(d) Rule
Exercising the Secretary's authority under section 4(d) of the Act,
we have developed a final rule that is designed to address the bracted
twistflower's conservation needs. As discussed previously under Summary
of Biological Status and Threats, we have concluded that the bracted
twistflower is likely to become in danger of extinction within the
foreseeable future primarily due to urban and residential land
development (Factor A), increases in woody plant cover (Factor A),
excessive herbivory (Factor C), and small, isolated populations (Factor
E). Section 4(d) requires the Secretary to issue such regulations as
she deems necessary and advisable to provide for the conservation of
each threatened species and authorizes the Secretary to include among
those protective regulations any of the prohibitions that section
9(a)(2) of the Act prescribes for endangered species. Our regulations
at 50 CFR 17.71 apply the prohibitions in section 9(a)(2) of the Act to
all threatened plants. However, if we promulgate species-specific
protective regulations for a given species, the species-specific
regulations replace 50 CFR 17.71. We find that the protections,
prohibitions, and exceptions in this final rule as a whole satisfy the
requirement in section 4(d) of the Act to issue regulations deemed
necessary and advisable to
[[Page 21857]]
provide for the conservation of the bracted twistflower.
The protective regulations in this 4(d) rule for bracted
twistflower incorporate prohibitions from section 9(a)(2) of the Act to
address the threats to the species. In particular, this 4(d) rule will
provide for the conservation of the bracted twistflower by prohibiting
the following activities, unless they fall within specific exceptions
or are otherwise authorized or permitted: importing or exporting;
certain acts related to removing, damaging, and destroying; delivering,
receiving, carrying, transporting, or shipping in interstate or foreign
commerce in the course of commercial activity; or selling or offering
for sale in interstate or foreign commerce.
To protect the species, in addition to the protections that apply
to Federal lands, the 4(d) rule prohibits a person from removing,
cutting, digging up, or damaging or destroying the species on non-
Federal lands in knowing violation of any law or regulation of any
State or in the course of any violation of a State criminal trespass
law. As most populations of the bracted twistflower occur off Federal
land, these protections in the 4(d) rule are key to its effectiveness.
For example, any damage to the species on non-Federal land in violation
of a Texas off-highway vehicle law will be prohibited by the 4(d) rule.
Additionally, any damage incurred by the species due to criminal
trespass on non-Federal lands will similarly violate the 4(d) rule.
These protective regulations will help to limit specific actions that
damage individual populations.
The exceptions to the prohibitions include all of the general
exceptions to the prohibitions set forth at 50 CFR 17.71 and 17.72.
Despite these prohibitions regarding threatened species, we may
under certain circumstances issue permits to carry out one or more
otherwise-prohibited activities, including those described above. The
regulations that govern permits for threatened plants state that the
Director may issue a permit authorizing any activity otherwise
prohibited with regard to threatened species (50 CFR 17.72). Those
regulations also state that the permit shall be governed by the
provisions of Sec. 17.72 unless a species-specific rule applicable to
the plant is provided in Sec. Sec. 17.73 to 17.78. Therefore, permits
for threatened species are governed by the provisions of Sec. 17.72
unless a species-specific 4(d) rule provides otherwise. However, under
our recent revisions to Sec. 17.71, the prohibitions in Sec. 17.71(a)
do not apply to any plant listed as a threatened species after
September 26, 2019. As a result, for threatened plant species listed
after that date, any protections must be contained in a species-
specific 4(d) rule. We did not intend for those revisions to limit or
alter the applicability of the permitting provisions in Sec. 17.72, or
to require that every species-specific 4(d) rule spell out any
permitting provisions that apply to that species and species-specific
4(d) rule. To the contrary, we anticipate that permitting provisions
would generally be similar or identical for most species, so applying
the provisions of Sec. 17.72 unless a species-specific 4(d) rule
provides otherwise would likely avoid substantial duplication. Under 50
CFR 17.72 with regard to threatened plants, a permit may be issued for
the following purposes: for scientific purposes, to enhance propagation
or survival, for economic hardship, for botanical or horticultural
exhibition, for educational purposes, or for other purposes consistent
with the purposes and policy of the Act.
We recognize the beneficial and educational aspects of activities
with seeds of cultivated plants, which generally enhance the
propagation of the species and, therefore, such activities will satisfy
permit requirements under the Act. We intend to monitor the interstate
and foreign commerce and import and export of these specimens in a
manner that will not inhibit such activities, providing the activities
do not represent a threat to the survival of the species in the wild.
In this regard, seeds of cultivated specimens will not be subject to
the prohibitions above, provided that a statement that the seeds are of
``cultivated origin'' accompanies the seeds or their container.
Propagation is currently taking place for the bracted twistflower
and will continue to be an important recovery tool. This will include
collecting seeds from wild populations, following Center for Plant
Conservation guidelines and the joint ``Policy Regarding Controlled
Propagation of Species Listed Under the Endangered Species Act'' (65 FR
56916; September 20, 2000), and propagating them for seed increase,
population augmentation, introduction, and research related to the
species' recovery.
We recognize the special and unique relationship with our State
natural resource agency partners in contributing to conservation of
listed species. State agencies often possess scientific data and
valuable expertise on the status and distribution of endangered,
threatened, and candidate species of wildlife and plants. State
agencies, because of their authorities and their close working
relationships with local governments and landowners, are in a unique
position to assist us in implementing all aspects of the Act. In this
regard, section 6 of the Act provides that we shall cooperate to the
maximum extent practicable with the States in carrying out programs
authorized by the Act. Therefore, any qualified employee or agent of a
State conservation agency that is a party to a cooperative agreement
with the Service in accordance with section 6(c) of the Act, who is
designated by his or her agency for such purposes, will be able to
conduct activities designed to conserve bracted twistflower that may
result in otherwise prohibited activities without additional
authorization.
Nothing in this 4(d) rule will change in any way the recovery
planning provisions of section 4(f) of the Act, the consultation
requirements under section 7 of the Act, or our ability to enter into
partnerships for the management and protection of the bracted
twistflower. However, interagency cooperation may be further
streamlined through planned programmatic consultations for the species
between us and other Federal agencies, where appropriate.
III. Critical Habitat
Background
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. Critical habitat is defined in
section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats,
[[Page 21858]]
and habitats used periodically, but not solely by vagrant individuals).
This critical habitat designation was proposed when the regulations
defining ``habitat'' (85 FR 81411; December 16, 2020) and governing the
4(b)(2) exclusion process for the Service (85 FR 82376; December 18,
2020) were in place and in effect. However, 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
bracted twistflower, we apply the regulations at 424.19 and the 2016
Joint Policy on 4(b)(2) exclusions (81 FR 7226; February 11, 2016).
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
result in destruction or adverse modification of the critical habitat,
the Federal action agency and the landowner are not required to abandon
the proposed activity, or to restore or recover the species; instead,
they must implement ``reasonable and prudent alternatives'' to avoid
destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat).
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species.
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 the 4(d) rule. 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 physical or biological
features 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
[[Page 21859]]
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 absence of 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.
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential to
the conservation of the bracted twistflower from studies of the
species' habitat, ecology, and life history as described below.
Additional information can be found in the SSA report available on
<a href="https://www.regulations">https://www.regulations</a>.gov and <a href="https://ecos.fws.gov/ecp/species/2856">https://ecos.fws.gov/ecp/species/2856</a>.
We have determined that the following physical or biological features
are essential to the conservation of the bracted twistflower:
Geological Substrate and Soils
The prevalent Cretaceous geological formations in the Edwards
Plateau of central Texas include the Edwards group of formations and
its equivalent, the Devils River formation, which replaces the Edwards
to the west and south; both of these formations overlie the Glen Rose
formation (Maclay and Small 1986, pp. 17-24). Karstic, porous
limestones are abundant in the Edwards and Devils River formations, and
conversely, the Glen Rose limestones have relatively little porosity.
The Edwards Aquifer occupies the porous upper strata, and many seeps
and springs occur along the Balcones Escarpment, where the boundary of
these upper formations with the Glen Rose is exposed at the surface.
Some units of the Edwards, Devils River, and Glen Rose formations are
dolomitic, meaning that, in addition to calcium, they also contain
significant amounts of magnesium. Bracted twistflower populations occur
in close proximity to the exposed boundary of the Edwards or Devils
River and Glen Rose formations (McNeal 1989, p. 15; Zippin 1997, p.
223; Carr 2001, p. 1; Pepper 2010, p. 5). Most populations are less
than 2 km (1.2 mi) from this boundary, as seen in less detailed, small-
scale geological maps (Fowler 2014, pp. 11-12). A detailed, large-scale
geological map of northern Bexar County (Clark et al. 2009, entire)
reveals that two bracted twistflower populations (Eisenhower City Park
and Rancho Diana) occur in a narrow stratum identified as a basal
nodular hydrostratigraphic member of the Kainer Formation, Edwards
Group (Clark et al. 2016, pp. 6-7). This stratum is immediately below a
dolomitic hydrostratigraphic member of the Kainer Formation, and
immediately above a cavernous hydrostratigraphic member of the Glen
Rose limestone (Service 2021, pp. 8-9, figures 6-8). Populations often
occur in horizontal bands where these strata are exposed along slopes.
Soils in the immediate vicinity of individual plants are very shallow
clays with abundant rock fragments.
Although we do not know why the species is associated with the
Edwards-Glen Rose boundary, Fowler (2014, p. 12) proposed two
hypotheses: (1) The species depends on increased seepage between these
formations; and (2) the species requires higher levels of magnesium
ions that leach from dolomitic limestone in the lower strata of the
Edwards formation. These hypotheses are not mutually exclusive.
Ecological Community
Bracted twistflower occurs in native, old-growth juniper-oak
woodlands and shrublands along the Balcones Escarpment. Individual
plants frequently occur near or under a canopy of Ashe juniper, Texas
live oak, Texas persimmon (Diospyros texana), Texas mountain laurel,
Texas red oak, or other trees. In many sites, bracted twistflower
inhabits dense thickets of evergreen sumac (Rhus virens), agarita
(Mahonia trifoliolata), Roemer acacia (Acacia roemeriana), Lindheimer
silk-tassel (Garrya ovata ssp. lindheimeri), thoroughwort (Ageratina
havanensis), oreja de rat[oacute]n (Bernardia myricifolia), or other
shrubs.
Bracted twistflower is a winter annual plant that persists only
where individuals produce enough seeds to sustain a reserve of viable
seeds in the soil. White-tailed deer and introduced ungulates heavily
browse the flower stalks of individual plants before they can set seed,
thus contributing to the decline of populations. Herbivory threatens
the species throughout its range, except where it is protected from
deer by fencing or intensive herd management (hunting) (McNeal 1989, p.
17; Damude and Poole 1990, pp. 52-53; Dieringer 1991, p. 341; Zippin
1997, pp. 39-197, 227; Leonard 2010, pp. 36-43; Fowler 2014, pp. 17,
19). The extremely high deer densities in the Edwards Plateau of Texas
exacerbate the species' vulnerability to herbivory (Zippin 1997, p.
227).
In sites that are protected from white-tailed deer, the most robust
bracted twistflower plants occur where woody plant cover is less dense
(Damude and Poole 1990, pp. 29-30; Poole et al. 2007, p. 470). The two
largest populations, Laurel Canyon and Rancho Diana, occur in
relatively open vegetation of low shrubs and sotol (Dasylirion
texanum), where there is little or no juniper cover. Laboratory and
field experiments demonstrated that growth and reproduction of bracted
twistflower benefits from higher light intensity and duration than it
receives in many of the extant populations (Fowler 2010, pp. 10-11;
Leonard 2010, p. 63; Ramsey 2010, p. 20); its persistence in dense
thickets may be due to increased herbivory of the plants growing in
more open vegetation (Leonard 2010, p. 63; Ramsey 2010, p. 22). Deer-
exclusion cages significantly increased the probability of survival,
reproduction, above-ground biomass, and seed set, compared to un-caged
plants, at a bracted twistflower population near Mesa Drive in Austin
where the deer population was very high (Zippin 1997, p. 60). In 2012,
the City of San Antonio Parks and Recreation Department (SAPRD)
protected the Rancho Diana population with a deer-fenced exclosure. In
August and September 2017, SAPRD personnel cut to ground level all
woody vegetation in a 760-square-meter (m\2\) (8,180-square-foot
(ft\2\)) plot within the exclosure. In May
[[Page 21860]]
2018, the number of bracted twistflower plants within the cleared plot
was 16 times greater, and seed production within the plot was 15 times
greater, than in any of 4 previous years (Cozort 2019, pers. comm). In
synthesis, shaded juniper thickets may serve as refugia from herbivory,
but they are not the species' optimal habitat. Bracted twistflower is
best adapted to microsites at canopy gaps and edges within the juniper-
oak woodland where it receives direct sunlight at least part of the
day. It is likely that wildfires occurred more frequently in bracted
twistflower habitats prior to European settlement, and that the more
recent reduction in fire frequency has allowed Ashe juniper to increase
in cover and density (Bray 1904, pp. 14-15, 23-24; Fonteyn et al. 1988,
p. 79; Service 2021, pp. 12, 29-30).
Bracted twistflower produces seeds primarily through outcrossing
(fertilization between different individuals), and therefore depends
heavily on pollinators, including a native leafcutter bee, Megachile
comata, for reproduction (Dieringer 1991, pp. 341-343). Halictid bees
(sweat bees) and other native bee species may also be effective
pollinators (Service 2021, p. 5). Therefore, bracted twistflower
habitats must also support populations of leafcutter bees and other
native bee species that effectively pollinate the species. Native bees
in turn require, as sources of pollen and nectar, a diverse, abundant
understory of native forb and shrub species that in the past was
periodically renewed by wildfires.
In summary, the essential physical and biological features of
bracted twistflower are:
(1) Karstic, dolomitic limestones underlain by less permeable
limestone strata, where perched aquifers seep to the surface along
slopes. These are often found within 2 km of the exposed boundary of
the Edwards or Devils River and Glen Rose geological formations;
(2) Native, old-growth juniper-oak woodlands and shrublands along
the Balcones Escarpment;
(3) Herbivory from white-tailed deer and introduced ungulates of
such low intensity that it does not severely deplete populations prior
to seed dispersal;
(4) Tree and shrub canopy gaps that allow direct sunlight to reach
the herbaceous plant layer at least 6 hours per day; and
(5) Viable populations of native bee species and the abundant,
diverse forb and shrub understory that support them.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection. The features essential to the conservation of this species
may require special management considerations or protections to reduce
the following threats: Habitat loss due to urban and residential
development, increased woody plant cover, severe herbivory by native
and introduced ungulates, and trampling and erosion from recreational
use. Management activities that could ameliorate these threats include
(but are not limited to) juniper thinning, prescribed fire, fencing to
exclude deer and other herbivores, herd management of local ungulate
populations, and protection from foot and bicycle traffic. These
management activities will protect the physical and biological features
essential for the conservation of the species by reducing herbivory,
maintaining open canopies, protecting the habitat from trampling and
erosion, and conserving diverse shrub and forb understory vegetation
that supports the species' native bee pollinators.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat. We are designating critical
habitat within occupied habitat in all three representation areas,
including areas that preserve the populations with the highest
resiliency. 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.
We considered the geographic areas occupied by the species at the
time of listing to consist of EOs with survey data within the past 7
years or areas in which we confirmed that habitat remained intact using
aerial imagery. We know that seeds can remain dormant and viable in the
soil of intact sites for at least 7 years. Due to the large proportion
of private lands within the range of the species, the majority of known
locations occur on publicly owned conservation lands that can be
accessed for surveys. Most of the critical habitat units have been
surveyed annually, and the habitats are protected by the cities of
Austin and San Antonio. We do not have recent surveys for two sites,
EOs 10 and 18 (Garner State Park and Medina Lake). However, we have
precise geographic coordinates for these populations collected with
Global Positioning System (GPS) instruments. In a Geographic
Information System (GIS), we have overlaid the geographic coordinates
of these sites on recent orthographically corrected aerial photographs
and have determined that the habitats remain intact.
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. We delineated each critical habitat unit around
areas where karstic, dolomitic limestones of the Edwards or Devils
River formations overlay the less permeable Glen Rose formation. The
elevation ranges and degree of slope of these geological strata vary
among EOs. However, because the exposed strata that support bracted
twistflower populations are nearly horizontal, we used the elevation
range where individuals have been observed at each EO to delineate this
essential geological feature over the short distances spanned by that
EO. Similarly, since seepage from overlying karst aquifers occurs on
slopes, we also used the range of slopes where individuals have been
observed at each EO to delineate this essential feature at that EO.
Thus, we combined the parameters of the observed elevation range and
slope range of the species at each EO to delimit each critical habitat
unit. However, we excluded any areas that lack natural vegetation, such
as roads and buildings, as determined through examination of recent
aerial photographs. We also did not designate critical habitat units at
EOs that are no longer occupied, or that no longer possess the
essential physical and biological features due to development or
significant disturbance. Finally, we did not extend critical habitat
units beyond areas that have been surveyed, because we cannot determine
if they contain the essential physical or biological features.
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
[[Page 21861]]
lack physical or biological features necessary for bracted twistflower.
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 rule have been excluded by
text in the rule and are not designated as critical habitat. Therefore,
a Federal action involving these lands will not trigger section 7
consultation with respect to critical habitat and the requirement of no
adverse modification unless the specific action will affect the
physical or biological features in the adjacent critical habitat.
We are designating as critical habitat areas that we have
determined are occupied at the time of listing (i.e., currently
occupied) and that contain one or more of the physical or biological
features that are essential to support life-history processes of the
species.
Units are designated based on one or more of the physical or
biological features being present to support bracted twistflower's
life-history processes. Some units contain all of the identified
physical or biological features and support multiple life-history
processes. Some units contain only some of the physical or biological
features necessary to support the bracted twistflower's particular use
of that habitat.
The 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">https://www.regulations</a>.gov at Docket No. FWS-R2-ES-2021-0013.
Final Critical Habitat Designation
We are designating three units as critical habitat for the bracted
twistflower. The critical habitat areas we describe below constitute
our current best assessment of areas that meet the definition of
critical habitat for the bracted twistflower. The three areas we
designate as critical habitat are: (1) Northeast Unit; (2) Central
Unit; and (3) Southwest Unit. Table 3 shows the critical habitat units,
the land ownership, and the approximate area of each unit. All
designated units are occupied.
Table 3--Critical Habitat Units for the Bracted Twistflower
[Area estimates reflect all land within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
Subunit Critical habitat size
(conservation -------------------------------
Unit area or property Property owner Occupied?
name) Acres Hectares
----------------------------------------------------------------------------------------------------------------
1. Northeast.......... 1a. Barton Creek City of Austin.. Yes................ 690.50 279.44
Greenbelt/
Wilderness Park
(EOs 17, 36).
1b. Bull Creek City of Austin.. Yes................ 2.32 0.94
District Park
(EO 35).
1c. Mount Bonnell City of Austin.. Yes................ 2.00 0.81
Park (EO 9).
1d. Ullrich Water City of Austin.. Yes................ 19.47 7.88
Treatment Plant
(Bee Creek Park)
(EO 7).
2. Central............ 2a. Eisenhower City of San Yes................ 78.16 31.63
Park (EO 23). Antonio.
2b. Rancho Diana City of San Yes................ 395.73 160.15
(EO 31). Antonio.
2c. Laurel Canyon Laurel C. Canyon Yes................ 39.59 16.02
Ranch Easement Ranch LP; City
(EO 25). of San Antonio
holds
conservation
easement.
2d. Medina River Private......... Yes................ 23.28 9.42
(EO 18).
3. Southwest.......... Garner State Park Texas Parks and Yes................ 345.22 139.71
(EO 10). Wildlife
Department.
-------------------------------
Totals:........... ................. ................ ................... 1,596.27 646.00
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum exactly due to rounding.
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for the bracted twistflower,
below.
Unit 1: Northeast
Unit 1 consists of approximately 715 ac (289 ha) of occupied
habitat within Travis County, Texas, and is composed of four subunits.
All four subunits are owned by the City of Austin with the majority of
the designated critical habitat occurring on lands managed for
conservation as part of the BCP. This unit contains the essential
physical and biological features of proximity to the geological
boundary, old-growth juniper-oak woodlands, tree and shrub canopy gaps,
and viable native bee populations. Some areas within this unit are
protected from deer herbivory. Threats occurring within this unit
include juniper encroachment, infrequent wildfire, white-tailed deer
herbivory, off-trail recreational uses, and small population sizes.
Special management needed for the bracted twistflower within this unit
includes white-tailed deer herd management, thinning of juniper trees,
and prescribed burning. For subunit descriptions, refer to the proposed
rule (86 FR 62668; November 10, 2021).
Unit 2: Central
Unit 2 consists of approximately 537 ac (217 ha) of occupied
habitat within Bexar and Medina Counties in Texas. This unit is
composed of four subunits and includes the largest known population of
bracted twistflower. Land ownership within this unit consists of City
of San Antonio owned properties and well as two privately-owned
properties, one of which has a conservation easement held by the City
of San Antonio. This unit contains the essential physical and
biological features of proximity to the geological boundary, old-growth
juniper-oak woodlands, protection from deer herbivory, tree and shrub
canopy gaps, and viable native bee populations.
Threats to this unit include herbivory from white-tailed deer,
juniper encroachment, infrequent wildlife, off-trail recreational uses,
and small population size.
Special management needed for the bracted twistflower within this
unit includes white-tailed deer herd management, thinning of juniper
trees, and prescribed burning.
[[Page 21862]]
Unit 3: Southwest
Unit 3 consists of occupied habitat within Uvalde County, Texas.
Garner State Park was donated by local landowners to the State of Texas
in 1941, and is managed by TPWD. One population of bracted twistflower
persists at this very heavily visited, 1,786-ac (723-ha) State park. We
are designating 345.22 ac (139.71 ha) as occupied critical habitat for
the bracted twistflower at Garner State Park (EO 10). This unit
contains the essential physical and biological features of proximity to
the geological boundary, old-growth juniper-oak woodlands, tree and
shrub canopy gaps, and viable native bee populations. Specific threats
include herbivory from white-tailed deer and introduced ungulates,
juniper encroachment into canopy gaps, off-trail recreational uses of
habitats, and infrequent wildfire. Special management needed for the
bracted twistflower within this unit includes white-tailed deer herd
management and thinning of juniper trees; if it can be conducted
safely, management could include prescribed burning.
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 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: (a) if the amount or extent of
taking specified in the incidental take statement is exceeded; (b) 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; (c) 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 written
concurrence; or (d) 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 physical or biological
features essential to the conservation of a listed species and provide
for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate section
7(a)(2) of the Act by destroying or adversely modifying such habitat,
or that may be affected by such designation.
Activities that the Services 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, actions that
would disturb the soil or underlying rock strata, reduce the diversity
and abundance of native bees and bee-pollinated plant species, or
diminish the perched aquifers that supply seep moisture to bracted
twistflower habitats. Such activities could include, but are not
limited to, excavation of soil or underlying rock strata with
bulldozers, graders, back-hoes, or excavators within habitats;
application of insecticides that kill or impair native bees;
application of herbicides that kill or damage native bee-pollinated
plants; and displacement of native juniper-oak woodlands with surface
cover, such as pavement and
[[Page 21863]]
buildings, that impede infiltration of rainwater into the soil. These
activities could deplete or destroy the soil seed reserve of viable
seeds of the bracted twistflower, diminish the abundance of the
species' pollinators and thereby reduce seed production and gene flow,
or alter the soil and hydrology so that it no longer supports the
germination, establishment, and reproduction of the bracted
twistflower.
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that the Secretary shall not designate as critical habitat any
lands or other geographical areas owned or controlled by the Department
of Defense (DoD), or designated for its use, that are subject to an
integrated natural resources management plan (INRMP) prepared under
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary
determines in writing that such plan provides a benefit to the species
for which critical habitat is proposed for designation.
In preparing this final rule, we have determined that the lands
within the critical habitat designation for the bracted twistflower are
not owned, managed, or used by the DoD.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from designated critical habitat based on
economic impacts, impacts on national security, or any other relevant
impacts. 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 (hereafter, the ``2016 Policy''; 81 FR 7226,
February 11, 2016), 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.
In considering whether to exclude a particular area from the
designation, we identify the benefits of including the area in the
designation, identify the benefits of excluding the area from the
designation, and evaluate whether the benefits of exclusion outweigh
the benefits of inclusion. If the analysis indicates that the benefits
of exclusion outweigh the benefits of inclusion, the Secretary may
exercise discretion to exclude the area only if such exclusion would
not result in the extinction of the species. In making the
determination to exclude a particular area, the statute on its face, as
well as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor. We describe below the process that we undertook for
taking into consideration each category of impacts and our analyses of
the relevant impacts.
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 draft economic analysis of the critical habitat designation and
related factors (IEc 2020, entire). The analysis, dated December 7,
2020, was made available for public review from November 10, 2021,
through January 10, 2022 (86 FR 62668). The economic analysis addressed
probable economic impacts of critical habitat designation for bracted
twistflower. 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. Additional information
relevant to the probable incremental economic impacts of critical
habitat designation for the bracted twistflower is summarized below and
available in the screening analysis for the bracted twistflower (IEc
2020, entire), available at <a href="https://www.regulations">https://www.regulations</a>.gov.
Future consultation activity within the critical habitat area is
likely to be very limited, but may include the following categories:
(1) Land restoration of enhancement; (2) agriculture; (3) development;
(4) transmission line construction; (5) oil or gas pipelines; (6)
transportation; and (7) stream modification. The majority (99 percent)
of the critical habitat area is within protected areas and conservation
lands. The consultation history indicates that few projects and
activities have occurred within critical habitat and within the broader
range of the species over the past 9 years. Future consultations within
the critical habitat units are anticipated to range from 0 to 0.1
formal consultations per year, 0.1 to 0.4 informal consultations per
year, and 0 to 0.9 technical assistance efforts per year. Based on the
average annual rate of consultations, the incremental administrative
costs of consultation for the critical habitat units may range from
$280 to $2,100 in an average year (IEc 2020, p. 15). We received no new
information pertaining to our economic analysis during the comment
period and have made no changes to our analysis of economic impacts in
this final rule.
We considered the economic impacts of the critical habitat
designation. The Secretary is not exercising her discretion to exclude
any areas from this designation of critical habitat for the bracted
twistflower based on economic impacts.
Exclusions Based on Impacts on National Security and Homeland Security
In preparing this rule, we determined that none of the lands within
the designated critical habitat for the bracted twistflower are owned
or managed by the DoD or Department of Homeland Security, and,
therefore, we anticipate no impact on national security or homeland
security. We did not receive any additional information during the
public comment period for the proposed designation regarding impacts of
the designation on national security or homeland security that would
support excluding any specific areas from this final critical habitat
designation under the authority of section 4(b)(2) of the Act and our
implementing regulations at 50 CFR 424.19.
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, safe harbor agreements (SHAs), or
candidate conservation agreements with assurances (CCAAs)--or whether
there are non-permitted conservation
[[Page 21864]]
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.
We received a request to exclude a portion of the subunit 1d:
Ullrich Water Treatment Plant, from the City of Austin. Although a
portion of this subunit is within the Balcones Canyonlands Preserve,
the portion requested for exclusion is outside the preserve and
therefore not covered by the Balcones Canyonlands Preserve Land
Management Plan. Because the area requested for exclusion occurs
outside the Balcones Canyonlands Preserve and is not protected under
the Balcones Canyonlands Preserve Land Management Plan, we determined
that it does not qualify for an exclusion based on a permitted plan and
are not excluding this area from critical habitat. The requester did
not present a reasoned rationale supporting their requests for
exclusion on any other basis, which is necessary for us to conduct an
exclusion analysis.
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
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 as understood in light of recent
court decisions, Federal agencies are required to evaluate the
potential incremental impacts of rulemaking on those entities directly
regulated by the rulemaking itself; in other words, the RFA does not
require agencies to evaluate the potential impacts to indirectly
regulated entities. The regulatory mechanism through which critical
habitat protections are realized is section 7 of the Act, which
requires Federal agencies, in consultation with the Service, to ensure
that any action authorized, funded, or carried out by the agency is not
likely to destroy or adversely modify critical habitat. Therefore,
under section 7, only Federal action agencies are directly subject to
the specific regulatory requirement (avoiding destruction and adverse
modification) imposed by critical habitat designation. Consequently, it
is our position that only Federal action agencies 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, the
Service certifies that this final critical habitat designation will not
have a significant economic impact on a substantial number of small
entities.
In summary, we have considered whether this final designation will
result in a significant economic impact on a substantial number of
small entities. For the above reasons and based on currently available
information, we certify that this final critical habitat designation
will not have a significant economic impact on a substantial number of
small business entities. Therefore, 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. The Office of Management and Budget (OMB) has
provided guidance for implementing this Executive Order that outlines
nine outcomes that may constitute ``a significant adverse effect'' when
compared to not taking the regulatory action under consideration. The
economic analysis finds that none of these criteria are relevant to
this analysis. Thus, based on information in the economic analysis,
energy-related impacts associated with bracted twistflower conservation
activities within critical habitat are not expected. As such, the
designation of critical habitat is not expected to significantly affect
energy supplies, distribution, or use. Therefore, this action is not a
[[Page 21865]]
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 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. By definition, Federal agencies are not
considered small entities, although the activities they fund or permit
may be proposed or carried out by small entities. The lands being
designated as critical habitat are primarily owned by the cities of
Austin and San Antonio or the State of Texas and none of these
government entities fits the definition of ``small governmental
jurisdiction.'' Consequently, we do not believe that the critical
habitat designation will significantly or uniquely affect small
government entities. As such, 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 bracted twistflower in a takings implications assessment.
The Act does not authorize the Service to regulate private actions on
private lands or confiscate private property as a result of critical
habitat designation. Designation of critical habitat does not affect
land ownership, or establish any closures, or restrictions on use of or
access to the designated areas. Furthermore, the designation of
critical habitat does not affect landowner actions that do not require
Federal funding or permits, nor does it preclude development of habitat
conservation programs or issuance of incidental take permits to permit
actions that do require Federal funding or permits to go forward.
However, Federal agencies are prohibited from carrying out, funding, or
authorizing actions that would destroy or adversely modify critical
habitat. A takings implications assessment has been completed and
concludes that this designation of critical habitat for the bracted
twistflower 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, this final 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 physical
or biological features of the habitat necessary for the conservation of
the species are specifically identified. This information does not
alter where and what federally sponsored activities may occur. However,
it may assist State and local governments in long-range planning
because they no longer have to wait for case-by-case section 7
consultations to occur.
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) of the Act 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
[[Page 21866]]
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 are
designating critical habitat in accordance with the provisions of the
Act. To assist the public in understanding the habitat needs of the
species, this final rule identifies the physical or biological features
essential to the conservation of the species. The designated areas of
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 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 and species-specific protective regulations
promulgated concurrently with a decision to list or reclassify a
species as threatened. The courts have upheld this position (e.g.,
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995) (critical
habitat); Center for Biological Diversity v. U.S. Fish and Wildlife
Service, 2005 WL 2000928 (N.D. Cal. Aug. 19, 2005) (concurrent 4(d)
rule)).
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 federally recognized
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 for the
bracted twistflower, 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">https://www.regulations</a>.gov and upon request from
the Austin Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this rule are the staff members of the Fish
and Wildlife Service's Species Assessment Team and the Austin
Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
unless otherwise noted.
0
2. In Sec. 17.12, amend paragraph (h) by adding an entry for
``Streptanthus bracteatus'' 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 and
Scientific name Common name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
Flowering Plants
* * * * * * *
Streptanthus bracteatus......... Bracted twistflower Wherever found.... T 88 FR [Insert Federal
Register page where
the document begins],
April 11, 2023; 50 CFR
17.73(h);\4d\ 50 CFR
17.96(a).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.73 by adding paragraph (h) to read as follows:
Sec. 17.73 Special rules--flowering plants.
* * * * *
(h) Streptanthus bracteatus (bracted twistflower).
(1) Prohibitions. The following prohibitions that apply to
endangered plants also apply to the bracted twistflower. Except as
provided under paragraph (h)(2) of this section, it is unlawful for any
person subject to the jurisdiction of the United States to commit, to
attempt to commit, to solicit another to commit, or cause to be
committed, any of the following acts in regard to this species:
(i) Import or export, as set forth at Sec. 17.61(b) for endangered
plants.
(ii) Remove and reduce to possession the species from areas under
Federal jurisdiction; maliciously damage or destroy the species on any
such area; or remove, cut, dig up, or damage or destroy the species on
any other area in knowing violation of any law or regulation of any
State or in the course of any violation of a State criminal trespass
law.
(iii) Interstate or foreign commerce in the course of commercial
activity, as set forth at Sec. 17.61(d) for endangered plants.
[[Page 21867]]
(iv) Sale or offer for sale, as set forth at Sec. 17.61(e) for
endangered plants.
(2) Exceptions from prohibitions. In regard to this species:
(i) You may conduct activities as authorized by permit under Sec.
17.72.
(ii) Any employee or agent of the Service or of a State
conservation agency that is operating a conservation program pursuant
to the terms of a cooperative agreement with the Service in accordance
with section 6(c) of the Act, who is designated by that agency for such
purposes, may, when acting in the course of official duties, remove and
reduce to possession from areas under Federal jurisdiction members of
bracted twistflower that are covered by an approved cooperative
agreement to carry out conservation programs.
(iii) You may engage in any act prohibited under paragraph (h)(1)
of this section with seeds of cultivated specimens, provided that a
statement that the seeds are of ``cultivated origin'' accompanies the
seeds or their container.
0
4. In Sec. 17.96, amend paragraph (a) by adding an entry for ``Family
Brassicaceae: Streptanthus bracteatus (bracted twistflower)'',
immediately after the entry for ``Family Brassicaceae: Physaria
thamnophila (Zapata bladderpod)'', to read as follows:
Sec. 17.96 Critical habitat--plants.
* * * * *
Family Brassicaceae: Streptanthus bracteatus (bracted twistflower)
(1) Critical habitat units are depicted for Bexar, Medina, Travis,
and Uvalde Counties, Texas, on the maps in this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of bracted twistflower consist of the
following components:
(i) Karstic, dolomitic limestones underlain by less permeable
limestone strata, where perched aquifers seep to the surface along
slopes. These are often found within 2 kilometers of the exposed
boundary of the Edwards or Devils River and Glen Rose geological
formations;
(ii) Native, old-growth juniper-oak woodlands and shrublands along
the Balcones Escarpment;
(iii) Herbivory from white-tailed deer and introduced ungulates of
such low intensity that it does not severely deplete populations prior
to seed dispersal;
(iv) Tree and shrub canopy gaps that allow direct sunlight to reach
the herbaceous plant layer at least 6 hours per day; and
(v) Viable populations of native bee species and the abundant,
diverse forb and shrub understory that support them.
(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
May 11, 2023.
(4) Data layers defining map units were created using U.S.
Geological Survey digital elevation models. For each unit/subunit, we
determined the range of occupied elevations and the range of occupied
slopes; critical habitat polygons consist of the intersection of the
occupied elevations and occupied slopes. 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 <a href="https://www.regulations">https://www.regulations</a>.gov at Docket No. FWS-R2-ES-2021-0013, 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:
Figure 1 to Streptanthus bracteatus (bracted twistflower) paragraph (5)
[GRAPHIC] [TIFF OMITTED] TR11AP23.004
[[Page 21868]]
(6) Unit 1: Northeast; Travis County, Texas.
(i) Subunit 1a: Barton Creek Greenbelt and Barton Creek Wilderness
Park.
(A) Subunit 1a consists of 690.5 acres (ac) (279.44 hectares (ha))
in Travis County and is composed of lands along Barton Creek owned by
the City of Austin Parks and Recreation Department and jointly managed
by the Parks and Recreation Department and Austin Water's Wildland
Conservation Division as a unit of the Balcones Canyonlands Preserve
(BCP) system.
(B) Map of Subunit 1a follows:
Figure 2 to Streptanthus bracteatus (bracted twistflower) paragraph
(6)(i)(B)
[GRAPHIC] [TIFF OMITTED] TR11AP23.005
[[Page 21869]]
(ii) Subunit 1b: Bull Creek District Park.
(A) Subunit 1b consists of 2.32 ac (0.94 ha) in Travis County and
is composed of lands owned by the City of Austin Parks and Recreation
Department and jointly managed by the Parks and Recreation Department
and Austin Water's Wildland Conservation Division as a unit of the BCP
system.
(B) Map of Subunit 1b follows:
Figure 3 to Streptanthus bracteatus (bracted twistflower) paragraph
(6)(ii)(B)
[GRAPHIC] [TIFF OMITTED] TR11AP23.006
[[Page 21870]]
(iii) Subunit 1c: Mount Bonnell Park.
(A) Subunit 1c consists of 2 ac (0.81 ha) in Travis County and is
composed of lands owned by the City of Austin Parks and Recreation
Department and jointly managed by the Parks and Recreation Department
and Austin Water's Wildland Conservation Division as a unit of the BCP
system.
(B) Map of Subunit 1c follows:
Figure 4 to Streptanthus bracteatus (bracted twistflower) paragraph
(6)(iii)(B)
[GRAPHIC] [TIFF OMITTED] TR11AP23.007
[[Page 21871]]
(iv) Subunit 1d: Ullrich Water Treatment Plant/Bee Creek Park.
(A) Subunit 1d consists of 19.47 ac (7.88 ha) in Travis County and
is composed of lands owned by the City of Austin Water Utility, a
portion of which is jointly managed by the Parks and Recreation
Department and Austin Water's Wildland Conservation Division as a unit
of the BCP system.
(B) Map of Subunit 1d follows:
Figure 5 to Streptanthus bracteatus (bracted twistflower) paragraph
(6)(iv)(B)
[GRAPHIC] [TIFF OMITTED] TR11AP23.008
[[Page 21872]]
(7) Unit 2: Central; Bexar and Medina Counties, Texas.
(i) Subunit 2a: Eisenhower Park.
(A) Subunit 2a consists of 78.16 ac (31.63 ha) in Bexar County and
is composed of lands owned by the City of San Antonio and managed by
San Antonio Parks and Recreation Department.
(B) Map of Subunit 2a follows:
Figure 6 to Streptanthus bracteatus (bracted twistflower) paragraph
(7)(i)(B)
[GRAPHIC] [TIFF OMITTED] TR11AP23.009
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(ii) Subunit 2b: Rancho Diana.
(A) Subunit 2b consists of 395.73 ac (160.15 ha) in Bexar County
and is composed of lands owned and managed by the City of San Antonio.
(B) Map of Subunit 2b follows:
Figure 7 to Streptanthus bracteatus (bracted twistflower) paragraph
(7)(ii)(B)
[GRAPHIC] [TIFF OMITTED] TR11AP23.010
(iii) Subunit 2c: Laurel Canyon Ranch Easement.
(A) Subunit 2c consists of 39.59 ac (16.02 ha) in Medina County and
is composed of private property owned by Laurel C. Canyon Ranch, LP.
The City
[[Page 21874]]
of San Antonio Edwards Aquifer Protection Program holds a conservation
easement on 222 ha (549 ac) of Laurel Canyon Ranch.
(B) Map of Subunit 2c follows:
Figure 8 to Streptanthus bracteatus (bracted twistflower) paragraph
(7)(iii)(B)
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(iv) Subunit 2d: Medina River.
(A) Subunit 2d consists of 23.28 ac (9.42 ha) in Medina County and
is composed of private property owned by Medina Ranch Inc.
(B) Map of Subunit 2d follows:
Figure 9 to Streptanthus bracteatus (bracted twistflower) paragraph
(7)(iv)(B)
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(8) Unit 3: Southwest; Garner State Park, Uvalde County, Texas.
(i) Unit 3 consists of 345.22 ac (139.71 ha) in Uvalde County and
is composed of lands within Garner State Park, which is managed by
Texas Parks and Wildlife Department.
(ii) Map of Unit 3 follows:
Figure 10 to Streptanthus bracteatus (bracted twistflower) paragraph
(8)(ii)
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* * * * *
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-07118 Filed 4-10-23; 8:45 am]
BILLING CODE 4333-15-P
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</html>Indexed from Federal Register on April 11, 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.