Proposed Rule2023-12129
Endangered and Threatened Wildlife and Plants; Endangered Species Status for Navasota False Foxglove and Designation of Critical Habitat
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Published
June 13, 2023
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), propose to list Navasota false foxglove (Agalinis navasotensis), a plant species from Grimes and Tyler Counties, Texas, as an endangered species under the Endangered Species Act of 1973, as amended (Act). This determination also serves as our 12-month finding on a petition to list Navasota false foxglove. After a review of the best available scientific and commercial information, we find that listing the species is warranted. We also propose to designate critical habitat for Navasota false foxglove under the Act. In total, approximately 1.9 acres (0.8 hectares) in Grimes and Tyler Counties, Texas, fall within the boundaries of the proposed critical habitat designation. In addition, we announce the availability of a draft economic analysis of the proposed designation of critical habitat for Navasota false foxglove. If we finalize this rule as proposed, it would add this species to the List of Endangered and Threatened Plants and extend the Act's protections to the species and its designated critical habitat.
Full Text
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[Federal Register Volume 88, Number 113 (Tuesday, June 13, 2023)]
[Proposed Rules]
[Pages 38455-38477]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-12129]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2022-0156; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BF85
Endangered and Threatened Wildlife and Plants; Endangered Species
Status for Navasota False Foxglove and Designation of Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list Navasota false foxglove (Agalinis navasotensis), a plant species
from Grimes and Tyler Counties, Texas, as an endangered species under
the Endangered Species Act of 1973, as amended (Act). This
determination also serves as our 12-month finding on a petition to list
Navasota false foxglove. After a review of the best available
scientific and commercial information, we find that listing the species
is warranted. We also propose to designate critical habitat for
Navasota false foxglove under the Act. In total, approximately 1.9
acres (0.8 hectares) in Grimes and Tyler Counties, Texas, fall within
the boundaries of the proposed critical habitat designation. In
addition, we announce the availability of a draft economic analysis of
the proposed designation of critical habitat for Navasota false
foxglove. If we finalize this rule as proposed, it would add this
species to the List of Endangered and Threatened Plants and extend the
Act's protections to the species and its designated critical habitat.
DATES: We will accept comments received or postmarked on or before
August 14, 2023. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. eastern time on the closing date. We must receive requests for a
public hearing, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by July 28, 2023.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. In the Search box, enter FWS-R2-ES-2022-0156,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the panel on the left side of
the screen, under the Document Type heading, check the Proposed Rule
box to locate this document. You may submit a comment by clicking on
``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R2-ES-2022-0156, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on <a href="https://www.regulations.gov">https://www.regulations.gov</a>. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: Supporting materials, such as
the species status assessment report, are available at <a href="https://fws.gov/species/navasota-false-foxglove-agalinis-navasotensis">https://fws.gov/species/navasota-false-foxglove-agalinis-navasotensis</a>, and <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R2-ES-2022-0156, or both. For the
critical habitat designation, the coordinates or plot points or both
from which the maps are generated are included in the decision file for
this critical habitat designation and are available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R2-ES-2022-0156 and on the
Service's website at <a href="https://fws.gov/species/navasota-false-foxglove-agalinis-navasotensis">https://fws.gov/species/navasota-false-foxglove-agalinis-navasotensis</a>.
FOR FURTHER INFORMATION CONTACT: Chuck Ardizzone, Project Leader, Texas
Coastal Ecological Services Field Office, U.S. Fish and Wildlife
Service, 17629 El Camino Real, Ste. 211, Houston, TX 77058; telephone:
(281) 286-8282. Individuals in the United States who are deaf,
deafblind, hard of hearing, or have a speech disability may dial 711
(TTY, TDD, or TeleBraille) to access telecommunications relay services.
Individuals outside the United States should use the relay services
offered within their country to make
[[Page 38456]]
international calls to the point-of-contact in the United States.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, a species warrants
listing if it meets the definition of an endangered species (in danger
of extinction throughout all or a significant portion of its range) or
a threatened species (likely to become endangered within the
foreseeable future throughout all or a significant portion of its
range). If we determine that a species warrants listing, we must list
the species promptly and designate the species' critical habitat to the
maximum extent prudent and determinable. We have determined that the
Navasota false foxglove meets the definition of an endangered species;
therefore, we are proposing to list it as such and proposing a
designation of its critical habitat. Both listing a species as an
endangered or threatened species and designating critical habitat can
be completed only by issuing a rule through the Administrative
Procedure Act rulemaking process (5 U.S.C. 551 et seq.).
What this document does. We propose to list the Navasota false
foxglove as an endangered species under the Act, and we propose the
designation of critical habitat for the species.
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 Navasota false
foxglove is endangered due to the following threats: the encroachment
of woody vegetation (Factor A) and the demographic consequences of few
(three) small populations (Factor E). Land use changes (Factor A),
consequences from global climate change (Factors A and E), and the
cumulative impacts from all of the above-mentioned influences are also
impacting the species' status.
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 protection; and (ii) specific areas
outside the geographical area occupied by the species at the time it is
listed, upon a determination by the Secretary that such areas are
essential for the conservation of the species. Section 4(b)(2) of the
Act states that the Secretary must make the designation on the basis of
the best scientific data available and after taking into consideration
the economic impact, the impact on national security, and any other
relevant impacts of specifying any particular area as critical habitat.
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other governmental agencies, Native
American Tribes, the scientific community, industry, or any other
interested parties concerning this proposed rule.
We particularly seek comments concerning:
(1) The species' biology, range, and population trends, including:
(a) Biological or ecological requirements of the species, including
habitat requirements;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns,
including the locations of any additional populations of this species;
(d) Historical and current population levels, and current and
projected trends; and
(e) Past and ongoing conservation measures for the species, its
habitat, or both.
(2) Threats and conservation actions affecting the species,
including:
(a) Factors that may be affecting the continued existence of the
species, which may include habitat modification or destruction,
overutilization, disease, predation, the inadequacy of existing
regulatory mechanisms, or other natural or manmade factors.
(b) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species.
(c) Existing regulations or conservation actions that may be
addressing threats to this species.
(3) Additional information concerning the historical and current
status of this species.
(4) Specific information on:
(a) The amount and distribution of Navasota false foxglove habitat;
(b) Any additional areas occurring within the range of the species,
in Grimes and Tyler Counties, Texas, that should be included in the
designation because they (i) are occupied at the time of listing and
contain the physical or biological features that are essential to the
conservation of the species and that may require special management
considerations, or (ii) are unoccupied at the time of listing and are
essential for the conservation of the species; and
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change; and
(d) Whether occupied areas are adequate for the conservation of the
species, as this will help us evaluate the potential to include areas
not occupied at the time of listing. Additionally, please provide
specific information regarding whether or not unoccupied areas would,
with reasonable certainty, contribute to the conservation of the
species and contain at least one physical or biological feature
essential to the conservation of the species. We also seek comments or
information regarding whether areas not occupied at the time of listing
qualify as habitat for the species.
(7) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(8) Additional information regarding land ownership within the
proposed critical habitat units
(9) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation, and the related benefits of including or excluding
specific areas.
(10) Information on the extent to which the description of probable
economic impacts in the draft economic analysis is a reasonable
estimate of the likely economic impacts and any additional information
regarding probable economic impacts that we should consider.
(11) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act. If you think we should exclude any
additional areas, please provide information supporting a benefit of
exclusion.
[[Page 38457]]
(12) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, do not provide substantial
information necessary to support a determination. Section 4(b)(1)(A) of
the Act directs that determinations as to whether any species is an
endangered or a threatened species must be made solely on the basis of
the best scientific and commercial data available, and section 4(b)(2)
of the Act directs that the Secretary shall designate critical habitat
on the basis of the best scientific information available.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via <a href="https://www.regulations.gov">https://www.regulations.gov</a>, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Our final determination may differ from this proposal because we
will consider all comments we receive during the comment period as well
as any information that may become available after this proposal. Based
on the new information we receive (and any comments on that new
information), we may conclude that the species is threatened instead of
endangered, or we may conclude that the species does not warrant
listing as either an endangered species or a threatened species. For
critical habitat, our final designation may not include all areas
proposed, may include some additional areas that meet the definition of
critical habitat, or may exclude some areas if we find the benefits of
exclusion outweigh the benefits of inclusion and exclusion will not
result in the extinction of the species. In our final rule, we will
clearly explain our rationale and the basis for our final decision,
including why we made changes, if any, that differ from this proposal.
Public Hearing
Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and local newspapers at least 15 days before the
hearing. We may hold the public hearing in person or virtually via
webinar. We will announce any public hearing on our website, in
addition to announcing them in the Federal Register. The use of virtual
public hearings is consistent with our regulations at 50 CFR
424.16(c)(3).
Previous Federal Actions
On June 25, 2007, we received a petition to list 475 species,
including Navasota false foxglove, from Forest Guardians (now WildEarth
Guardians). On December 16, 2009, we published a 90-day finding for 192
of those species, including the Navasota false foxglove (74 FR 66866).
We found that there was substantial information indicating that listing
the species may be warranted. The Navasota false foxglove was added to
our national listing workplan with a target completion date of fiscal
year 2023 for the 12-month finding. We completed a species status
assessment for the species in 2022.
Peer Review
A species status assessment (SSA) team prepared an SSA report for
the Navasota false foxglove. The SSA team was composed of Service
biologists, in consultation with other species experts. The SSA report
represents a compilation of the best scientific and commercial data
available concerning the status of the species, including the impacts
of past, present, and future factors (both negative and beneficial)
affecting the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review of
listing actions under the Act, we solicited independent scientific
review of the information contained in the Navasota false foxglove SSA
report. We sent the SSA report to eight independent peer reviewers,
including scientists, botanists, and consultants with a variety of
expertise in rare plants, conservation and restoration, and fire
management. We received review from two peer reviewers. Results of this
structured peer review process can be found at <a href="https://regulations.gov">https://regulations.gov</a>
under Docket No. FWS-R2-ES-2022-0156. In preparing this proposed rule,
we incorporated the results of these reviews, as appropriate, into the
SSA report, which is the foundation for this proposed rule.
Summary of Peer Reviewer Comments
As discussed in Peer Review, above, we received comments from two
peer reviewers on the draft SSA report. We reviewed all comments we
received from the peer reviewers for substantive issues and new
information regarding the information contained in the SSA report. The
peer reviewers generally concurred with our methods and conclusions,
and provided additional information, clarifications in terminology and
discussions of genetic diversity, and other editorial suggestions.
I. Proposed Listing Determination
Background
Agalinis (false foxglove) is a genus of about 70 species in North,
Central, and South America that until 2008 was aligned with members of
the family Scrophulariaceae (figwort). In 2008, it was shown to be more
closely related to Orobanchaceae (broomrape), which consists mostly of
hemiparasitic plants (plants that obtain part of their food by
parasitism; Pettengill and Neel 2008, p. 15).
Navasota false foxglove is a narrowly endemic, hemiparasitic,
annual plant known from only two counties in southeast Texas (Grimes
and Tyler Counties). Navasota false foxglove flowering begins in mid-
September and is triggered by short days when there are fewer hours of
sunlight (Reed et al. 2005, p. 7). Navasota false foxglove blooms from
mid-September to October, and seeds mature from October to early
November. Fruit maturation and seed dispersal occurs by November; other
Agalinis fruit typically contains between 50 and 180 seeds (Cunningham
and Parr 1990, p. 269). Plants are usually dead by December. This
species
[[Page 38458]]
is relatively hard to see when the plants are not in flower, and even
during flowering times they can be hard to see across the landscape.
They bloom every day in fall months, and flowers often drop by mid-
afternoon of the same day. Navasota false foxglove require full
sunlight and will not grow in solid stands of very dense vegetation
(Strong and Williamson 2015, p. 6). The species occurs on rocky
outcrops with well drained, shallow soils that have historically been
ungrazed and unplowed.
Navasota false foxglove is an annual herb from a few fibrous roots,
11-36 inches (2.7-9.1 decimeters) tall, often tinged with purple,
maroon, or bronze. The blooms are often purplish-pink in color. The
leaves and general appearance of Navasota false foxglove resemble
several other common false foxgloves that all have thin, thread-like
leaves (Canne-Hilliker and Dubrule 1993, pp. 426-431).
Navasota false foxglove is hemiparasitic (a plant that possesses
chlorophyll and typically carries out photosynthesis but is partially
parasitic on the roots or shoots of a plant host), and little bluestem
(Schizachyrium scoparium) is hypothesized to be one of the main plants
that it parasitizes (Reed 2019 pers. comm.). Host plants provided
needed nutrients for survival and reproduction of Navasota false
foxglove, especially in drought years.
Navasota false foxglove is found in three populations in two
counties in Texas and is most similar to Caddo false foxglove (Agalinis
caddoensis), a species presumed extinct from Louisiana. The status of
Navasota false foxglove as a distinct species was supported by DNA
barcoding research (Pettengill and Neel 2010, entire), but the
distinction and population genetics between the current sites in Grimes
and Tyler Counties, Texas, have not been analyzed. The Grimes County
and Tyler County populations are separated by more than 100 miles.
Land use has remained consistent since the populations were found.
The private landowners have allowed the Service and other individuals
from Texas A&M University to visit their property for surveys and
implementing habitat management projects.
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and the implementing
regulations in title 50 of the Code of Federal Regulations set forth
the procedures for determining whether a species is an endangered
species or a threatened species, issuing protective regulations for
threatened species, and designating critical habitat for endangered and
threatened species. In 2019, jointly with the National Marine Fisheries
Service, the Service issued a final rule that revised the regulations
in 50 CFR part 424 regarding how we add, remove, and reclassify
endangered and threatened species and the criteria for designating
listed species' critical habitat (84 FR 45020; August 27, 2019). On the
same day, the Service also issued final regulations that, for species
listed as threatened species after September 26, 2019, eliminated the
Service's general protective regulations automatically applying to
threatened species the prohibitions that section 9 of the Act applies
to endangered species (84 FR 44753; August 27, 2019).
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range, and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an endangered species or a threatened
species because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the species' expected response and
the effects of the threats--in light of those actions and conditions
that will ameliorate the threats--on an individual, population, and
species level. We evaluate each threat and its expected effects on the
species, then analyze the cumulative effect of all of the threats on
the species as a whole. We also consider the cumulative effect of the
threats in light of those actions and conditions that will have
positive effects on the species, such as any existing regulatory
mechanisms or conservation efforts. The Secretary determines whether
the species meets the definition of an ``endangered species'' or a
``threatened species'' only after conducting this cumulative analysis
and describing the expected effect on the species now and in the
foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as we can
reasonably determine that both the future threats and the species'
responses to those threats are likely. In other words, the foreseeable
future is the period of time in which we can make reliable predictions.
``Reliable'' does not mean ``certain''; it means sufficient to provide
a reasonable degree of confidence in the prediction. Thus, a prediction
is reliable if it is reasonable to depend on it when making decisions.
It is not always possible or necessary to define foreseeable future
as a particular number of years. Analysis of the foreseeable future
uses the best scientific and commercial data available and should
consider the timeframes applicable to the relevant threats and to the
species' likely responses to those threats in view of its life-history
characteristics. Data that are typically relevant to assessing the
species' biological response include species-specific factors such as
lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
[[Page 38459]]
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 proposed for listing as an endangered
or threatened species under the Act. However, it does provide the
scientific basis that informs our regulatory decisions, which involve
the further application of standards within the Act and its
implementing regulations and policies.
To assess Navasota false foxglove viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency is the ability of the species to withstand environmental and
demographic stochasticity (for example, wet or dry, warm or cold
years), redundancy is the ability of the species to withstand
catastrophic events (for example, droughts, large pollution events),
and representation is the ability of the species to adapt over time to
long-term changes in the environment (for example, climate conditions,
pathogens). In general, species viability will increase with increases
in resiliency, redundancy, and representation (Smith et al. 2018, p.
306). Using these principles, we identified the species' ecological
requirements for survival and reproduction at the individual,
population, and species levels, and described the beneficial and risk
factors influencing the species' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time. We use this information to inform our regulatory
decision.
The following is a summary of the key results and conclusions from
the SSA report; the full SSA report can be found at Docket No. FWS-R2-
ES-2022-0156 on <a href="https://www.regulations.gov">https://www.regulations.gov</a> and at <a href="https://www.fws.gov/office/texas-coastal-ecological-services">https://www.fws.gov/office/texas-coastal-ecological-services</a>.
Summary of Biological Status and Threats
In this discussion, we review the biological condition of the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability.
We evaluated the individual needs of Navasota false foxglove in
terms of the resource needs and/or the circumstances that are necessary
to complete each stage of the life cycle. The life history of Navasota
false foxglove is closely tied to its specific habitat requirements for
all stages of the species' life cycle. Table 1 summarizes the resources
that are needed by life stage. For further information about any
particular life stage or resource need, see chapter 2 of the SSA report
(Service 2022, pp. 8-24).
Table 1--Resource Needs by Life Stage
----------------------------------------------------------------------------------------------------------------
Resources and/or
circumstances needed for
Life stage individuals to complete Resource function References
each life stage
----------------------------------------------------------------------------------------------------------------
Seeds.............................. <bullet> Calcareous sandy Habitat Nutrition Seed Strong and Williamson
to clay loam soils that dispersal. 2015, pp. 5, 9; Canne-
are ungrazed, unplowed, Hilliker & Dubrule
shallow thin soils. 1993, p. 433.
<bullet> Limited woody
encroachment; open prairie
habitat..
<bullet> Full sun.
<bullet> Annual
precipitation events that
provide enough soil
moisture for germination.
Germination........................ <bullet> Host plants Habitat Nutrition..... Strong and Williamson
(growing root tips that 2015, pp. 5, 9; Canne-
produce exudate for Hilliker & Dubrule
development). 1993, p. 433;
<bullet> Annual Yatskievych 2021,
precipitation events that pers comm.
provide enough soil
moisture for germination..
<bullet> In drought years,
a host to parasitize to
gather more nutrients and
water..
<bullet> Disturbance from
periodic fires stimulates
new root growth in host
plants and therefore
stimulates germination of
Agalinis seeds.
<bullet> Calcareous,
shallow, sandy to clay
loam soils that are
ungrazed and unplowed.
<bullet> Limited woody
encroachment; open prairie
habitat.
<bullet> Full sun.
Seedlings.......................... <bullet> Calcareous, Habitat Nutrition..... Strong and Williamson
shallow, sandy to clay 2015, pp. 5, 8, 9;
loam soils that are Canne-Hilliker &
ungrazed and unplowed. Dubrule 1993, p. 433.
<bullet> Limited woody
encroachment; open prairie
habitat..
<bullet> Full sun
<bullet> Annual
precipitation events that
provide enough soil
moisture for germination.
Mature and reproductive adults..... <bullet> Short sun hour Habitat Nutrition Strong and Williamson
days to trigger flowering. Reproduction. 2015, pp. 5, 9; Canne-
<bullet> Full sun exposure; Hilliker & Dubrule
can maintain with shade up 1993, p. 433; Reed
to 10-15%.. 2021, pers. comm.
<bullet> Pollinators.......
<bullet> Host plant for
resources..
[[Page 38460]]
<bullet> Sparse surrounding
vegetation (adversely
affected if surrounding
vegetation is too thick).
<bullet> Calcareous,
shallow, sandy to clay
loam soils that are
ungrazed and unplowed.
<bullet> Limited woody
encroachment; open prairie
habitat.
<bullet> Annual
precipitation events that
provide enough soil
moisture for germination.
Fruit/capsule...................... <bullet> Pollination Habitat Nutrition Canne-Hilliker &
(selfing or pollinators). Reproduction. Dubrule 1993, p. 433;
<bullet> Host plant for Strong and Williamson
resources.. 2015, pp. 5, 9.
<bullet> Calcareous,
shallow, sandy to clay
loam soils that are
ungrazed and unplowed..
<bullet> Limited woody
encroachment; open prairie
habitat.
<bullet> Full sun.
<bullet> Annual
precipitation events that
provide enough soil
moisture for germination.
----------------------------------------------------------------------------------------------------------------
We identify the species' needs in terms of redundancy and
representation of the species. We evaluate the redundancy of this
species by the number and distribution of Navasota false foxglove
populations. Having multiple populations distributed across a larger
area reduces the risk of catastrophic events that may affect one or
more populations simultaneously, affecting the whole species. Fewer
populations distributed narrowly across the species' range would
increase catastrophic risk and lower redundancy. Representation of
Navasota false foxglove is based on the presence of multiple, self-
sustaining populations across the range of the species and their
contributions to providing adaptive capacity to the species in the face
of changing conditions. Navasota false foxglove requires a level of
genetic diversity that enables the species to adapt to environmental
change. We do not know if there is occupied habitat elsewhere within
Grimes County, Tyler County, or other areas of Texas. Therefore, we do
not know how many populations are necessary to provide sufficient
redundancy and representation to the species.
Stressors Affecting Navasota False Foxglove and Its Habitat
Encroachment of Woody Vegetation
Navasota false foxglove thrives in full sun along with its assumed
host plant, little bluestem. This species thrives in full sun and on
outcrops that are described as distinct islands surrounded by a sea of
Post Oak Savannah (Canne-Hilliker and Dubrule 1993). Woody vegetation
shades out areas of habitat that have previously provided full sun,
inhibiting plant growth. Woody vegetation from surrounding savannahs,
if not controlled, will invade these distinct islands of outcrops and
reduce full sun conditions, which Navasota false foxglove needs to
survive. Management, including prescribed fires, can prevent the
invasion of woody vegetation and stimulate root growth of the host
plant. Woody vegetation control has occurred in element occurrence (EO)
6674 (East), through both prescribed fires and mechanical removal;
subsequent surveys revealed much higher numbers of individuals. Habitat
improvements and prescribed fires have only occurred within EO 6674
(East), although woody vegetation occurs at the other two populations
as well.
Disturbance
Navasota false foxglove has adapted to different types of
disturbance including land clearing, road improvements, grazing,
vegetation removal, and prescribed fire. Some disturbance types are
beneficial; after a prescribed fire, the number of individuals the
following survey year had more than doubled, indicating this species
may be fire dependent. Although Navasota false foxglove may be able to
persist through different types of disturbances, the species occurs in
areas that are historically ungrazed and unplowed, indicating it is not
tolerant of land use changes.
All three Navasota false foxglove populations are near developed
roads or areas used for harvesting timber, areas that are vulnerable to
actions such as road construction, grading, and other ground-moving
activities. Grazing, another type of disturbance, has occurred on the
Grimes West population of Navasota false foxglove, where evidence of
hoof prints and livestock waste were observed. Individual livestock
have not been present during visits to this site. While several
individuals of Navasota false foxglove have been observed in these
areas, trampling could occur, but because livestock grazing is limited
and we know of no plans for it to increase, it likely does not pose a
current threat to the species.
Climate Change and Drought
Climate change has already begun, and continued greenhouse gas
emissions at or above current rates will cause further warming
(Intergovernmental Panel on Climate Change (IPCC) 2013, pp. 11-12).
Warming in the Southwest is expected to be greatest in the summer, and
annual mean precipitation is very likely to decrease in the Southwest
(IPCC 2013, pp. 11-12). In Texas, the number of extreme hot days (high
temperatures exceeding 95 degrees Fahrenheit ([deg]F)) are expected to
double by around 2050 (Kinniburgh et al. 2015, p. 83).
The Fifth Assessment Report of the IPCC (2013, p. 23) projects the
following changes by the end of the 21st century, relative to the 1986
to 2005 averages:
<bullet> It is virtually certain that most land areas will
experience warmer and/or fewer cold days and nights;
<bullet> It is virtually certain that most land areas will
experience warmer and/or more frequent hot days and nights;
<bullet> It is very likely that the frequency and/or duration of
warm spells and heat waves will increase in most land areas;
<bullet> It is very likely that the frequency, intensity, and/or
amount of heavy precipitation events will increase in mid-latitude land
masses; and
<bullet> It is likely that the intensity and/or duration of
droughts will increase on a regional to global scale.
[[Page 38461]]
Representative concentration pathways (RCPs) provide a framework
for modelling in the next stages of scenario-based research for
greenhouse gas emissions. These are plausible pathways toward reaching
each target of time-evolving emissions or concentrations of radiatively
active constituents (Moss et al. 2010, p. 752). RCPs provide scenarios
that include time series of emissions and concentrations of greenhouse
gases, aerosols, and chemically active gases. Within the term
``representative concentration pathway,'' the word ``representative''
signifies that each RCP provides only one of many possible scenarios
that would lead to the specific radiative-forcing characteristics. The
word ``pathway'' emphasizes that not only are the long-term
concentration levels something to consider, but the possible outcomes
of these trajectories over time (Moss et al. 2010, p. 752). RCP models
provide one of many possible scenarios for future conditions based on
specific radiative-forcing characteristics, for example, change in the
concentration of carbon dioxide or the output of the sun. Two RCP
scenarios were used in the SSA. One pathway was evaluated at RCP 4.5,
where the radiative forces are stabilized at 4.5 watts per square meter
by year 2100 and concentrations are constant after year 2150. The
second pathway evaluated was RCP 8.5, where the radiative forces are
greater than 8.5 watts per square meter by year 2100 and continue to
rise.
Depending on timing and intensity of drought events, Navasota false
foxglove could be adversely affected by increased mortality rates,
reduced reproductive output due to loss or reduced vigor of mature
plants, and reduced rates of seed germination and seedling recruitment.
Increases in soil temperatures and soil moisture evaporation in
response to predicted ambient warming could increase rates of soil seed
bank depletion by increasing seedling mortality rates (Ooi 2012, pp.
S54-S55) and diminish the resilience of Navasota false foxglove
populations by reducing the species' ability to maintain soil seed
banks. While climate has changed in recent decades in regions where the
Navasota false foxglove occurs, the rate of change likely will continue
to increase into the future.
The species retains the ability to rebound after drought, likely
due to the seed bank responding to rewetted conditions. Reviewing the
survey data from extreme drought years in Texas (i.e., 2011, the driest
year on record), abundance increased the year after the drought ended.
Species specialists hypothesize that the seed bank provides resiliency
by allowing the species to be dormant through dry years and then
germinating in years when conditions are suitable. We do not have
information regarding how long or how intense of a drought the species
can withstand.
Conservation Efforts and Regulatory Mechanisms
Of the three source features for Navasota false foxglove, all three
EOs occur entirely on privately owned land. The owners of the land
where the EO 6674 (East) population occurs protect the habitat for
conservation purposes and voluntarily allow researchers and scientists
on their property to conduct surveys. Employees of the Texas Parks and
Wildlife Department and the Service, as well as researchers from Texas
A&M University, have visited the EO 6674 (West) population several
times. This population is not currently being managed for Navasota
false foxglove, but it has new electric fencing to restrict cattle (as
noted during the fall 2020 site visit). The EO 9000 source feature is
currently owned by a timber company and has not been visited by
biologists in several years. The habitat descriptions and locations of
some other plant species specimens report the presence of Navasota
false foxglove, but these locations have not been verified nor surveyed
for Navasota false foxglove by specialists at this time.
Current Condition
It is very difficult to determine the population sizes and
demographic trends of an annual plant with wide annual variation in the
numbers of individuals that germinate from the seed bank, flower, and
set seed. In the case of EOs that have multiple source features, seed
germination pulses may not be synchronous at all source features; as
the maximum numbers observed at different areas may occur in different
years, the potential population size may be much greater than the
numbers observed in an entire EO in any single year. However, the
annual survey results for each EO represent the best available data
from which to assess population size, and regardless of year-to-year
variation, these populations are not large and occupy very small areas.
Small, isolated populations are more vulnerable to catastrophic losses
caused by random fluctuations in recruitment (demographic
stochasticity) or variations in rainfall or other environmental factors
(environmental stochasticity) (USFWS 2016, p. 20). Because these
populations occur over such small areas, any event that affects a
population is expected to affect the entire population, possibly
resulting in extirpation. In addition to population size, it is likely
that population density also influences resiliency, since reproduction
requires genetically compatible individuals to be clustered within the
forage ranges of the species' pollinators.
Population resiliency for the current condition of Navasota false
foxglove was derived from two habitat factors (host plant availability,
open canopy) and two demographic factors (population size and
connectivity). To rank these four factors, we described conditions that
were assumed to contribute to ``high,'' ``moderate,'' ``low,'' or
``very low'' levels of population resilience and provided each with a
quantified rank of 3, 2, 1, or 0, respectively (see table 2, below).
See chapter 4 of the SSA report for a full description of each factor
(Service 2022, p. 27-32).
Table 2--Current Condition Categories
----------------------------------------------------------------------------------------------------------------
Habitat factors Demographic factors
-------------------------------------------------------------------------------
Condition category Host plant Open canopy (% of Population
availability sun exposure) Population size connectivity
----------------------------------------------------------------------------------------------------------------
High (3)........................ Habitat supports >=75% open habitat >=1,667 Population located
LBS,\1\ and the individuals. within 0-0.25 km
plant occurs of another
throughout the occupied site.
occupied area.
Moderate (2).................... LBS occurs in some 50-75% open 834-1,667 Population located
of the occupied habitat. individuals. between 0.25 and
area. 0.5 km from
another occupied
site.
[[Page 38462]]
Low (1)......................... LBS has a low 25-50% open <=834 individuals. Population located
occurrence in the habitat. between 0.5 and 1
occupied area. km from another
occupied site.
Very Low (0).................... LBS does not occur <=25% open habitat 0 individuals..... Population located
in the occupied >1 km from
area. another occupied
site.
----------------------------------------------------------------------------------------------------------------
\1\ LBS stands for little bluestem (Schizachyrium scoparium).
The available survey data for Navasota false foxglove are limited
to ``presence/absence,'' and where population estimates are provided,
the data are infrequent and generally incomparable because survey
methodologies were not documented and changed over time. Therefore, we
cannot determine if Navasota false foxglove population numbers are
changing over time across the source features. In the absence of
current survey data for some populations (EO 9000), it was assumed that
if a historically known population site maintains habitat conditions
conducive to the species, the population is presumed extant. Therefore,
the current condition of the species may be overestimated.
The conservation principles of resiliency, redundancy, and
representation were used to summarize the current condition site scores
for Navasota false foxglove (see table 3, below). The resiliency of
each source feature was based on the survey data and condition of the
individual source features. Specifically, the site scores for the
extant populations within each source feature considered the total
number and size of extant populations in each area (i.e., redundancy
within the source feature), and other factors such as observed
population size, specific local stressors, and available survey data.
The species' redundancy and representation were assessed based on the
distribution of the species. As mentioned above, there can be some
uncertainty in population size of these source features. Our assessment
of the species' needs determined that populations with fewer than 834
individuals are considered to have low resiliency (Table 2). Based on
our survey results from the largest unit (Unit 1: E.O. 6674 (East)),
there has not been a survey year with more than 834 individuals since
the early 2000s. All three populations were ranked as a low for
population size due to several years in a row of surveys with fewer
than 834 individuals in all populations at each survey year.
Additionally, canopy conditions and connectivity are moderate or low in
all populations. Results of the current condition analysis indicate
that none of the populations are in high condition, one is in moderate
condition, and two are in low condition.
Table 3--Current Condition Site Scores
--------------------------------------------------------------------------------------------------------------------------------------------------------
Habitat factors Demographic factors
----------------------------------------------------------------------------------------------
Location (EO) Host plant Canopy openness (sun Population Final site score
availability exposure) Population size connectivity
--------------------------------------------------------------------------------------------------------------------------------------------------------
EO 6674 (East)..................... High.................. Moderate.............. Low.................. Moderate............. Moderate.
EO 6674 (West)..................... Low................... Moderate.............. Low.................. Moderate............. Low.
EO 9000............................ Low................... Moderate.............. Low.................. Very Low............. Low.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Future Conditions
As part of the SSA, we also developed two future condition
scenarios to capture the range of uncertainties regarding future
threats and the projected responses by the Navasota false foxglove. Our
scenarios assumed two different climate model scenarios and similar or
increasing effects from the influences on species viability into the
future. Because we determined that the current condition of the
Navasota false foxglove is consistent with an endangered species (see
Determination of Navasota False Foxglove's Status, below), we are not
presenting the results of the future scenarios in this proposed rule.
Please refer to the SSA report (Service 2022, p. 32-34) for the full
analysis of future scenarios.
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have
analyzed the cumulative effects of identified threats and conservation
actions on the species. To assess the current and future condition of
the species, we evaluate the effects of all the relevant factors that
may be influencing the species, including threats and conservation
efforts. Because the SSA framework considers not just the presence of
the factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative-effects analysis.
Determination of Navasota False Foxglove'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 an endangered
species or a threatened species because of any of the following
factors: (A) The present or threatened destruction, modification, or
[[Page 38463]]
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence.
Status Throughout All of Its Range
After evaluating threats to the species and assessing the
cumulative effect of the threats under the Act's section 4(a)(1)
factors, we determined that encroachment of woody vegetation (Factor
A), disturbance (Factor A), consequences from climate change (Factors A
and E), and the cumulative impacts from all of the above-mentioned
influences are threats to the Navasota false foxglove's continued
existence. Two of the three extant populations have low resiliency,
which makes them much less likely to be able to withstand stochastic
events such as drought and disturbance. The third population has
moderate resiliency.
A narrow endemic, Navasota false foxglove has little redundancy and
no adaptive capacity (representation), as it has few populations and is
inherently at a higher risk of extinction. Simply being a narrow
endemic does not, in and of itself, mean the species is in danger of
extinction and should be listed. Because this species is a narrow
endemic with few populations and population resiliency is either low
(two of three populations) or moderate (third population), reduction in
population resiliency can have an outsized influence on the species'
overall viability. The E.O. records of Navasota false foxglove have
been documented with a combined area of less than 2 acres. A single
event, such as a prolonged drought or a single development project,
could easily extirpate all or most of the remaining populations. Woody
vegetation is currently negatively affecting the populations, and
without woody vegetation removal or prescribed fire, the species could
be reduced or eliminated from these areas that become shaded.
Population resiliency has presumably declined given the sparse
number of individuals observed in recent surveys. The E.O. 9000 (Tyler)
population has low resiliency and little to no connectivity to the
other two populations, as it is greater than 100 miles away. Therefore,
the likelihood of the E.O. 9000 (Tyler) population being able to
recover from stochastic events, or be repopulated if it extirpated, is
greatly reduced or eliminated.
The species as a whole possesses little adaptive capacity. The lack
of connectivity and isolation of the populations has eliminated gene
flow, and the species retains little ability to withstand environmental
variation. As a whole, the species has limited representation and
redundancy, and low to moderate resiliency of the populations,
resulting in low species viability. Currently, Navasota false foxglove
populations are extremely vulnerable to woody vegetation encroachment,
disturbance, and environmental variation due to climate change, and the
loss of a population could cascade into the extinction of the species.
Thus, after assessing the best available information, we determine that
the Navasota false foxglove is in danger of extinction throughout all
of its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
within the foreseeable future throughout all or a significant portion
of its range. We have determined that the Navasota false foxglove is in
danger of extinction throughout all of its range and accordingly did
not undertake an analysis of any significant portion of its range.
Because the Navasota false foxglove warrants listing as endangered
throughout all of its range, our determination does not conflict with
the decision in Center for Biological Diversity v. Everson, 435 F.
Supp. 3d 69 (D.D.C. 2020) (Everson), which vacated the provision of the
Final Policy on Interpretation of the Phrase ``Significant Portion of
Its Range'' in the Endangered Species Act's Definitions of ``Endangered
Species'' and ``Threatened Species'' (79 FR 37578; July 1, 2014)
providing that if the Service determines that a species is threatened
throughout all of its range, the Service will not analyze whether the
species is endangered in a significant portion of its range.
Determination of Status
Our review of the best available scientific and commercial
information indicates that the Navasota false foxglove meets the Act's
definition of an endangered species. Therefore, we propose to list the
Navasota false foxglove as an endangered species in accordance with
sections 3(6) and 4(a)(1) of the Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened 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
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the time and cost of implementing recovery tasks. Revisions of the
plan may be done to address continuing or new threats to the species,
[[Page 38464]]
as new substantive information becomes available. If we list the
Navasota false foxglove, its recovery outline, draft recovery plan,
final recovery plan, and any revisions would 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 Texas Coastal Ecological Services Field Office
(see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
If this species is listed, funding for recovery actions will be
available from a variety of sources, including Federal budgets, State
programs, and cost-share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, the State of Texas would be eligible
for Federal funds to implement management actions that promote the
protection or recovery of the Navasota false foxglove. 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>.
Although the Navasota false foxglove is only proposed for listing
under the Act at this time, please let us know if you are interested in
participating in recovery efforts for this species. Additionally, we
invite you to submit any new information on this species whenever it
becomes available and any information you may have for recovery
planning purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as an
endangered or threatened species and with respect to its critical
habitat, if any is designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any action that is likely to jeopardize the
continued existence of a species proposed for listing or result in
destruction or adverse modification of proposed critical habitat. If a
species is listed subsequently, section 7(a)(2) of the Act requires
Federal agencies to ensure that activities they authorize, fund, or
carry out are not likely to jeopardize the continued existence of the
species or destroy or adversely modify its critical habitat. If a
Federal action may affect a listed species or its critical habitat, the
responsible Federal agency (action agency) must enter into consultation
with the Service.
Examples of actions that may be subject to the section 7 processes
are land management or other landscape-altering activities on Federal
lands administered by the Service, as well as 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. Examples of Federal agency actions that may
require consultation for the Navasota false foxglove could include any
other landscape-altering activities on Federal lands administered by
the Federal Highway Administration for any future construction and
maintenance of roads or highways. Given the difference in triggers for
conferencing and consultation, Federal agencies should coordinate with
the local Service field office (see FOR FURTHER INFORMATION CONTACT,
above) with any specific questions.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered plants.
The prohibitions of section 9(a)(2) of the Act, codified at 50 CFR
17.61, make it illegal for any person subject to the jurisdiction of
the United States to: import or export; remove and reduce to possession
from areas under Federal jurisdiction; maliciously damage or destroy on
any such area; remove, cut, dig up, or damage or destroy on any other
area in knowing violation of any law or regulation of any State or in
the course of any violation of a State criminal trespass law; deliver,
receive, carry, transport, or ship in interstate or foreign commerce,
by any means whatsoever and in the course of a commercial activity; or
sell or offer for sale in interstate or foreign commerce an endangered
plant. Certain exceptions apply to employees of the Service, other
Federal land management agencies, and State conservation agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered plants under certain circumstances. Regulations
governing permits are codified at 50 CFR 17.62. With regard to
endangered plants, a permit may be issued for scientific purposes or to
enhance the propagation or survival of the species. The statute also
contains certain exemptions from the prohibitions, which are found in
sections 9 and 10 of the Act.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a proposed
listing on proposed and ongoing activities within the range of the
species proposed for listing. Based on the best available information,
the following actions are unlikely to result in a violation of section
9, if these activities are carried out in accordance with existing
regulations and permit requirements; this list is not comprehensive:
(1) Normal agricultural and silvicultural practices, including
herbicide and pesticide use, that are carried out in accordance with
any existing regulations, permit and label requirements, and best
management practices; and
(2) Normal residential landscaping activities.
To the extent of what is currently known, trampling and other
activities that would result in habitat disturbance would be considered
likely to result in violation of section 9 of the Act in addition to
what is already described in the prohibitions found at 50 CFR 17.61.
Additional activities that will be considered likely to result in
violation of section 9 of the Act may be identified during coordination
with the local field office, Questions regarding whether specific
activities would constitute violation of section 9 of the Act should be
directed to the Texas Coastal Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
[[Page 38465]]
II. Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation also does not allow the
government or public to access private lands. Such designation does not
require implementation of restoration, recovery, or enhancement
measures by non-Federal landowners. Where a landowner requests Federal
agency funding or authorization for an action that may affect a listed
species or critical habitat, the Federal agency would be required to
consult with the Service under section 7(a)(2) of the Act. However,
even if the Service were to conclude that the proposed activity would
likely result in destruction or adverse modification of the critical
habitat, the Federal action agency and the landowner are not required
to abandon the proposed activity, or to restore or recover the species;
instead, they must implement ``reasonable and prudent alternatives'' to
avoid destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain 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 section 9 of the Act.
Federally funded or permitted projects affecting listed species outside
their designated critical habitat areas may still result in jeopardy
findings in some cases. These protections and conservation tools will
continue to contribute to recovery of the species. Similarly, critical
habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans
(HCPs), or other species conservation planning efforts if new
information available at the time of those planning efforts calls for a
different outcome.
Prudency Determination
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary shall designate critical habitat at the
time the species is determined to be an
[[Page 38466]]
endangered or threatened species. Our regulations (50 CFR 424.12(a)(1))
state that the Secretary may, but is not required to, determine that a
designation would not be prudent in the following circumstances:
(i) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(ii) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(iii) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States;
(iv) No areas meet the definition of critical habitat; or
(v) The Secretary otherwise determines that designation of critical
habitat would not be prudent based on the best scientific data
available.
As discussed earlier in this document, there is currently no
imminent threat of collection or vandalism identified under Factor B
for this species, and identification and mapping of critical habitat is
not expected to initiate any such threat. In our SSA report and
proposed listing determination for the Navasota false foxglove, we
determined that the present or threatened destruction, modification, or
curtailment of habitat or range is a threat to Navasota false foxglove
and that those threats in some way can be addressed by section 7(a)(2)
consultation measures. The species occurs wholly in the jurisdiction of
the United States, and we are able to identify areas that meet the
definition of critical habitat. Therefore, because none of the
circumstances enumerated in our regulations at 50 CFR 424.12(a)(1) have
been met and because the Secretary has not identified other
circumstances for which this designation of critical habitat would be
not prudent, we have determined that the designation of critical
habitat is prudent for the Navasota false foxglove.
Critical Habitat Determinability
Having determined that designation is prudent, under section
4(a)(3) of the Act we must find whether critical habitat for the
Navasota false foxglove is determinable. Our regulations at 50 CFR
424.12(a)(2) state that critical habitat is not determinable when one
or both of the following situations exist:
(i) Data sufficient to perform required analyses are lacking, or
(ii) The biological needs of the species are not sufficiently well
known to identify any area that meets the definition of ``critical
habitat.''
When critical habitat is not determinable, the Act allows the
Service an additional year to publish a critical habitat designation
(16 U.S.C. 1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological
needs of the species and habitat characteristics where this species is
located. This and other information represent the best scientific data
available and led us to conclude that the designation of critical
habitat is determinable for the Navasota false foxglove.
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 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 or a particular level
of nonnative species consistent with conservation needs of the listed
species. The features may also be combinations of habitat
characteristics and may encompass the relationship between
characteristics or the necessary amount of a characteristic essential
to support the life history of the species.
In considering whether features are essential to the conservation
of the species, we may consider an appropriate quality, quantity, and
spatial and temporal arrangement of habitat characteristics in the
context of the life-history needs, condition, and status of the
species. These characteristics include, but are not limited to, space
for individual and population growth and for normal behavior; food,
water, air, light, minerals, or other nutritional or physiological
requirements; cover or shelter; sites for breeding, reproduction, or
rearing (or development) of offspring; and habitats that are protected
from disturbance.
Navasota false foxglove needs well drained soils, such as rocky
outcrops and sandy loam over sandstone. Plants occupy open areas of the
outcrops where sun exposure is nearly constant (no more than 10 to 15
percent shade), and populations have been found in areas that have been
historically ungrazed and unplowed. Additionally, the species needs the
presence of the presumed host plant, little bluestem, to provide
nutrients during drought. When needed, Navasota false foxglove
parasitizes and extracts resources from its host plant, little
bluestem, for survival and reproduction.
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential to
the conservation of Navasota false foxglove from studies of the
species' habitat, ecology, and life history as described below.
Additional information can be found in the SSA report (Service 2022,
entire), which is available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket
No. FWS-R2-ES-2022-0156. We have determined that the following physical
or biological features are essential to the conservation of Navasota
false foxglove:
(1) Calcareous sandy to clay loam soils that are ungrazed,
unplowed, shallow thin soils.
(2) Open prairie habitat with limited woody encroachment.
(3) Annual precipitation events that provide enough soil moisture
to germinate.
(4) Full sun exposure (no more than 10 to 15 percent shade).
[[Page 38467]]
(5) Presence of the little bluestem (Schizachyrium scoparium) as
host plant.
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 the species
may require special management consideration or protection to reduce
the threat of woody encroachment. Special management considerations or
protection may be required within critical habitat areas to address
these threats. Management activities that could ameliorate these
threats include, but are not limited to, prescribed fire and manual
removal of woody encroachment. These management activities would
protect the physical or biological features for the species by opening
up the habitat for more sunlight and expanding the habitat area for the
species' survival. Additionally, these management activities would help
increase potential habitat and allow for an expanded seed bank for this
species.
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. While the Navasota false foxglove
needs additional areas to increase viability of the species, we are not
currently proposing to designate any areas outside the geographical
area occupied by the species because we have not identified any
unoccupied areas that meet the definition of critical habitat. We are
aware of no areas from which the species has been extirpated, and we do
not currently have information sufficient to determine which other
areas may be suitable for the species. We are proposing to designate
critical habitat in areas within the geographical area occupied by the
species at the time of listing. Within the three currently occupied
areas, the physical or biological features that are common across all
habitat types are limited woody encroachment, full sun exposure, host
plants, and annual precipitation events that provide enough soil
moisture to germinate. The Oakville formation and Catahoula formation
make up the rocky outcrop component within the occupied areas along
with fine sandy loam, sandy loam, and clay soils.
In summary, for areas within the geographical area occupied by the
species at the time of listing, we delineated critical habitat unit
boundaries using the following criteria:
The three critical habitat unit boundaries are directly related to
the presence of the species on the ground. The EO 6674 (East) unit
boundaries were refined by survey data from the fall of 2021. The EO
6674 (West) and EO 9000 critical habitat unit boundaries were refined
by using areas of presumed occupancy and information about suitable
soil type and drainage compatible to the species, due to the lack of
more recent survey data.
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands lack
physical or biological features necessary for Navasota false foxglove.
The scale of the maps we prepared under the parameters for publication
within the Code of Federal Regulations may not reflect the exclusion of
such developed lands. Any such lands inadvertently left inside critical
habitat boundaries shown on the maps of this proposed rule have been
excluded by text in the proposed rule and are not proposed for
designation as critical habitat. Therefore, if the critical habitat is
finalized as proposed, a Federal action involving these lands would not
trigger section 7 consultation with respect to critical habitat and the
requirement of no adverse modification unless the specific action would
affect the physical or biological features in the adjacent critical
habitat.
We propose to designate as critical habitat lands that we have
determined are occupied at the time of listing (i.e., currently
occupied) and that contain one or more of the physical or biological
features that are essential to support life-history processes of the
species. We are not aware of any additional historical locations where
the species was found. Additionally, we are unable to identify suitable
areas that would meet the species' needs outside of its currently
occupied range. Of areas that we analyzed as potentially suitable
areas, we concluded that we had no information to suggest any areas
would contribute to the long-term conservation of the species. We have
concluded that no unoccupied areas meet the definition of critical
habitat.
All three units in Grimes and Tyler Counties, Texas, are proposed
for designation based on one or more of the physical or biological
features being present to support Navasota false foxglove's life-
history processes. All three units in Grimes and Tyler Counties contain
all of the identified physical or biological features and support
multiple life-history processes.
The proposed critical habitat designation is defined by the map or
maps, as modified by any accompanying regulatory text, presented at the
end of this document under Proposed Regulation Promulgation. We include
more detailed information on the boundaries of the critical habitat
designation in the preamble of this document. We will make the
coordinates or plot points or both on which each map is based available
to the public on <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R2-ES-
2022-0156 and on our internet site at <a href="https://www.fws.gov/office/texas-coastal-ecological-services">https://www.fws.gov/office/texas-coastal-ecological-services</a>.
Proposed Critical Habitat Designation
We are proposing approximately 1.9 acres (ac) (0.8 hectares (ha))
in three units as critical habitat for the Navasota false foxglove. The
critical habitat areas we describe below constitute our current best
assessment of areas that meet the definition of critical habitat for
the Navasota false foxglove. The three areas we propose as critical
habitat are: (1) EO 6674 (East) Unit, (2) EO 6674 (West) Unit, and (3)
EO 9000 (Tyler) Unit. Table 4 shows the proposed critical habitat units
and the approximate area of each unit.
[[Page 38468]]
Table 4--Proposed Critical Habitat Units for Navasota False Foxglove
----------------------------------------------------------------------------------------------------------------
Area Landowner/land
Unit Area (acres) (hectares) manager(s) Occupied?
----------------------------------------------------------------------------------------------------------------
1. EO 6674 (East)................. 0.8 0.3 Private.............. Yes.
2. EO 6674 (West)................. 0.5 0.2 Private.............. Yes.
3. EO 9000 (Tyler)................ 0.6 0.2 Private.............. Yes.
--------------------------------
Total......................... 1.9 0.8
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
Unit 1: EO 6674 (East)
Unit 1 consists of 0.8 ac (0.3 ha) and is located 4 miles just to
the northeast of the town of Navasota, in Grimes County, Texas. Unit 1
is completely on private land and can be accessed by a public road.
Farm to Market Road 3090 runs along the eastern side of this unit, and
a portion of the unit is within the Texas Department of Transportation
right-of-way. Unit 1 consists of rolling hills with a rocky outcrop
(Oakville Formation) and well-drained soils. The area has edges of
woody vegetation that give way to open areas of full sunlight. This
unit is occupied and has been since the initial identification of the
Navasota false foxglove in 1993. It contains all of the physical or
biological features needed for the Navasota false foxglove. Special
management considerations may be required to reduce encroachment from
woody vegetation to maintain open prairie and full sun exposure.
Unit 2: EO 6674 (West)
Unit 2 consists of 0.5 ac (0.2 ha) and is located about 3.5 miles
northeast of the town of Navasota, in Grimes County, Texas. This area
is occupied and located about 0.9 miles to the west of Unit E.O. 6674
(East). The unit occurs along the Oakville formation that extends
across southeast Texas. This formation gives way to rocky outcrop areas
that have well-drained soils and areas of rolling hills. This unit is
just off County Road 403 in Grimes County and is owned by private
landowners. The area has been leased to a cattle association since
2019. It contains all of the physical or biological features needed for
the Navasota false foxglove. Special management considerations may be
required to reduce encroachment from woody vegetation to maintain open
prairie and full sun exposure.
Unit 3: EO 9000 (Tyler)
Unit 3 consists of 0.6 ac (0.2 ha) and is located approximately 7
miles to the northwest of Colmesneil, Texas, in Tyler County. This area
is occupied along a roadside right-of-way. This site is more than 100
miles to the northeast of Units 1 and 2 in Grimes County. This site is
located on the Catahoula formation along with rolling hills, well-
drained soils, and timber activity. This site has previously been
harvested for timber and is currently owned by a timber company. This
site is located just along the roadside of County Road 2845. It
contains all of the physical or biological features needed for the
Navasota false foxglove. Special management considerations may be
required to reduce encroachment from woody vegetation to maintain open
prairie and full sun exposure.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
We published a final rule revising the definition of destruction or
adverse modification on August 27, 2019 (84 FR 44976). Destruction or
adverse modification means a direct or indirect alteration that
appreciably diminishes the value of critical habitat as a whole for the
conservation of a listed species.
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 if any of the following four
conditions occur: (1) the amount or extent of taking specified in the
incidental take statement is exceeded; (2) new information reveals
effects of the action that may affect listed species or critical
habitat in a manner or to an extent not previously considered; (3) 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 (4) a
new species is listed or critical habitat designated that may be
affected by the identified action. The reinitiation requirement applies
only to actions that remain subject to some discretionary Federal
involvement or control. As provided in 50 CFR 402.16, the requirement
to reinitiate
[[Page 38469]]
consultations for new species listings or critical habitat designation
does not apply to certain agency actions (e.g., land management plans
issued by the Bureau of Land Management in certain circumstances.
Application of the ``Destruction or Adverse Modification'' Standard
The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat as a
whole for the conservation of the listed species. As discussed above,
the role of critical habitat is to support physical or biological
features essential to the conservation of a listed species and provide
for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate section
7(a)(2) of the Act by destroying or adversely modifying such habitat,
or that may be affected by such designation.
Activities that we may, during a consultation under section 7(a)(2)
of the Act, consider likely to destroy or adversely modify critical
habitat include, but are not limited to, actions that would permanently
destroy habitat and would result in complete destruction of habitat and
any viable seed bank for this species. Such activities could include,
but are not limited to, widening Farm to Market Road 3090 in Grimes
County, developing timber roads to access timber harvesting, and
allowing areas to become overgrown with woody vegetation. These
activities could reduce the amount of sunlight available for the
species' survival and could potentially destroy the habitat and any
viable seed bank in the area.
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that the Secretary shall not designate as critical habitat any
lands or other geographical areas owned or controlled by the Department
of Defense (DOD), or designated for its use, that are subject to an
integrated natural resources management plan (INRMP) prepared under
section 101 of the Sikes Act Improvement Act of 1997 (16 U.S.C. 670a),
if the Secretary determines in writing that such plan provides a
benefit to the species for which critical habitat is proposed for
designation. No DOD lands with a completed INRMP are within the
proposed critical habitat designation.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from designated critical habitat based on
economic impacts, impacts on national security, or any other relevant
impacts. 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). In our final designation, we will 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. In our final rules, we explain any decision to exclude
areas, as well as decisions not to exclude, to demonstrate that the
decision is reasonable. We describe below the process that we use for
taking into consideration each category of impacts and any initial
analyses of the relevant impacts.
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate the impacts that a specific critical habitat
designation may have on restricting or modifying specific land uses or
activities for the benefit of the species and its habitat within the
areas proposed. We then identify which conservation efforts may be the
result of the species being listed under the Act versus those
attributed solely to the designation of critical habitat for this
particular species. The probable economic impact of a proposed critical
habitat designation is analyzed by comparing scenarios both ``with
critical habitat'' and ``without critical habitat.''
The ``without critical habitat'' scenario represents the baseline
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource
users potentially affected by the designation of critical habitat
(e.g., under the Federal listing as well as other Federal, State, and
local regulations). Therefore, the baseline represents the costs of all
efforts attributable to the listing of the species under the Act (i.e.,
conservation of the species and its habitat incurred regardless of
whether critical habitat is designated). The ``with critical habitat''
scenario describes the incremental impacts associated specifically with
the designation of critical habitat for the species. The incremental
conservation efforts and associated impacts would not be expected
without the designation of critical habitat for the species. In other
words, the incremental costs are those attributable solely to the
designation of critical habitat, above and beyond the baseline costs.
These are the costs we use when evaluating the benefits of inclusion
and exclusion of particular areas from the final designation of
critical habitat should we choose to conduct a discretionary 4(b)(2)
exclusion analysis.
Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to
assess the costs and benefits of available regulatory alternatives in
quantitative (to the extent feasible) and qualitative terms. Consistent
with the E.O. regulatory analysis requirements, our effects analysis
under the Act may take into consideration impacts to both directly and
indirectly affected entities,
[[Page 38470]]
where practicable and reasonable. If sufficient data are available, we
assess to the extent practicable the probable impacts to both directly
and indirectly affected entities. Section 3(f) of E.O. 12866 identifies
four criteria when a regulation is considered a ``significant
regulatory action'', and requires additional analysis, review, and
approval if met. The criterion relevant here is whether the designation
of critical habitat may have an economic effect of $100 million or more
in any given year (section 3(f)(1)). Therefore, our consideration of
economic impacts uses a screening analysis to assess whether a
designation of critical habitat for the Navasota false foxglove is
likely to exceed the economically significant threshold.
For this particular designation, we developed an incremental
effects memorandum (IEM) considering the probable incremental economic
impacts that may result from this proposed designation of critical
habitat. The information contained in our IEM was then used to develop
a screening analysis of the probable effects of the designation of
critical habitat for the Navasota false foxglove (IEc 2022, entire). We
began by conducting a screening analysis of the proposed designation of
critical habitat in order to focus our analysis on the key factors that
are likely to result in incremental economic impacts. The purpose of
the screening analysis is to filter out particular geographic areas of
critical habitat that are already subject to such protections and are,
therefore, unlikely to incur incremental economic impacts. In
particular, the screening analysis considers baseline costs (i.e.,
absent critical habitat designation) and includes any probable
incremental economic impacts where land and water use may already be
subject to conservation plans, land management plans, best management
practices, or regulations that protect the habitat area as a result of
the Federal listing status of the species. Ultimately, the screening
analysis allows us to focus our analysis on evaluating the specific
areas or sectors that may incur probable incremental economic impacts
as a result of the designation. The presence of the listed species in
occupied areas of critical habitat means that any destruction or
adverse modification of those areas is also likely to jeopardize the
continued existence of the species. Therefore, designating occupied
areas as critical habitat typically causes little if any incremental
impacts above and beyond the impacts of listing the species. As a
result, we generally focus the screening analysis on areas of
unoccupied critical habitat (unoccupied units or unoccupied areas
within occupied units). Overall, the screening analysis assesses
whether any additional management or conservation efforts may incur
incremental economic impacts. This screening analysis combined with the
information contained in our IEM constitute what we consider to be our
draft economic analysis (DEA) of the proposed critical habitat
designation for the Navasota false foxglove; our DEA is summarized in
the narrative below.
As part of our screening analysis, we considered the types of
economic activities that are likely to occur within the areas likely
affected by the critical habitat designation. In our evaluation of the
probable incremental economic impacts that may result from the proposed
designation of critical habitat for the Navasota false foxglove, first
we identified, in the IEM dated July 20, 2022, probable incremental
economic impacts associated with vegetation management and prescribed
fire. We considered each industry or category individually.
Additionally, we considered whether their activities have any Federal
involvement. Critical habitat designation generally will not affect
activities that do not have any Federal involvement; under the Act,
designation of critical habitat only affects activities conducted,
funded, permitted, or authorized by Federal agencies. If we list the
species, in areas where the Navasota false foxglove is present, Federal
agencies would be required to consult with the Service under section 7
of the Act on activities they fund, permit, or implement that may
affect the species. If, when we list the species, we also finalize this
proposed critical habitat designation, Federal agencies would be
required to consider the effects of their actions on the designated
habitat, and if the Federal action may affect critical habitat, our
consultations would include an evaluation of measures to avoid the
destruction or adverse modification of critical habitat.
In our IEM, we attempted to clarify the distinction between the
effects that would result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the
Navasota false foxglove's critical habitat. Because the designation of
critical habitat for Navasota false foxglove is proposed concurrently
with the listing, it has been our experience that it is more difficult
to discern which conservation efforts are attributable to the species
being listed and those which would result solely from the designation
of critical habitat. However, the following specific circumstances in
this case help to inform our evaluation: (1) The essential physical or
biological features identified for critical habitat are the same
features essential for the life requisites of the species, and (2) any
actions that would result in sufficient harm or harassment to
constitute jeopardy to the Navasota false foxglove would also likely
adversely affect the essential physical or biological features of
critical habitat. The IEM outlines our rationale concerning this
limited distinction between baseline conservation efforts and
incremental impacts of the designation of critical habitat for this
species. This evaluation of the incremental effects has been used as
the basis to evaluate the probable incremental economic impacts of this
proposed designation of critical habitat.
The proposed critical habitat designation for the Navasota false
foxglove totals approximately 1.9 ac (0.8 ha) in Grimes and Tyler
Counties, Texas, and is divided into three units. All three units are
currently occupied by species. In these areas any actions that may
affect the species or its habitat would also affect designated critical
habitat, and it is unlikely that any additional conservation efforts
would be recommended to address adverse modification over and above
those recommended as necessary to avoid jeopardizing the continued
existence of Navasota false foxglove. Therefore, only administrative
costs are expected to result from the proposed critical habitat
designation. The only incremental impact of critical habitat
designation that we anticipate is the small (not expected to exceed
$2,800 per year) administrative effort required during section 7
consultation to document effects on the physical or biological features
of the critical habitat and whether the action appreciably diminishes
the value of critical habitat as a whole for the conservation of the
listed species (IEc 2022, p. 8). While this additional analysis will
require time and resources by the Federal action agency and the Service
(if a Federal nexus exists), it is believed that, in most
circumstances, these costs would predominantly be administrative in
nature and would not be significant.
We are soliciting data and comments from the public on the draft
economic analysis discussed above, as well as on all aspects of this
proposed rule and our required determinations. During the development
of a final designation, we will consider the information presented in
the economic analysis and any
[[Page 38471]]
additional information on economic impacts we receive during the public
comment period to determine whether any specific areas should be
excluded from the final critical habitat designation under the
authority of section 4(b)(2) of the Act and our implementing
regulations at 50 CFR 424.19 and the 2016 Policy. We may exclude an
area from critical habitat if we determine that the benefits of
excluding the area outweigh the benefits of including the area,
provided the exclusion will not result in the extinction of this
species.
Consideration of National Security Impacts
Section 4(a)(3)(B)(i) of the Act may not cover all DOD lands or
areas that pose potential national-security concerns (e.g., a DOD
installation that is in the process of revising its INRMP for a newly
listed species or a species previously not covered). If a particular
area is not covered under section 4(a)(3)(B)(i), then national-security
or homeland-security concerns are not a factor in the process of
determining what areas meet the definition of ``critical habitat.''
However, the Service must still consider impacts on national security,
including homeland security, on those lands or areas not covered by
section 4(a)(3)(B)(i), because section 4(b)(2) requires the Service to
consider those impacts whenever it designates critical habitat.
Accordingly, if DOD, Department of Homeland Security (DHS), or another
Federal agency has requested exclusion based on an assertion of
national-security or homeland-security concerns, or we have otherwise
identified national-security or homeland-security impacts from
designating particular areas as critical habitat, we generally have
reason to consider excluding those areas.
However, we cannot automatically exclude requested areas. When DOD,
DHS, or another Federal agency requests exclusion from critical habitat
on the basis of national-security or homeland-security impacts, we must
conduct an exclusion analysis if the Federal requester provides
credible information, including a reasonably specific justification of
an incremental impact on national security that would result from the
designation of that specific area as critical habitat. That
justification could include demonstration of probable impacts, such as
impacts to ongoing border-security patrols and surveillance activities,
or a delay in training or facility construction, as a result of
compliance with section 7(a)(2) of the Act. If the agency requesting
the exclusion does not provide us with a reasonably specific
justification, we will contact the agency to recommend that it provide
a specific justification or clarification of its concerns relative to
the probable incremental impact that could result from the designation.
If we conduct an exclusion analysis because the agency provides a
reasonably specific justification or because we decide to exercise the
discretion to conduct an exclusion analysis, we will defer to the
expert judgment of DOD, DHS, or another Federal agency as to: (1)
Whether activities on its lands or waters, or its activities on other
lands or waters, have national-security or homeland-security
implications; (2) the importance of those implications; and (3) the
degree to which the cited implications would be adversely affected in
the absence of an exclusion. In that circumstance, in conducting a
discretionary section 4(b)(2) exclusion analysis, we will give great
weight to national-security and homeland-security concerns in analyzing
the benefits of exclusion.
In preparing this proposal, we have determined that the lands
within the proposed designation of critical habitat for Navasota false
foxglove are not owned or managed by the DOD or DHS, and, therefore, we
anticipate no impact on national security or homeland security.
Consideration of Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security discussed above. 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 habitat conservation plans (HCPs), safe
harbor agreements (SHAs), or candidate conservation agreements with
assurances (CCAAs)--or whether there are non-permitted conservation
agreements and partnerships that may be impaired by designation of, or
exclusion from, critical habitat. In addition, we look at whether
Tribal conservation plans or partnerships, Tribal resources, or
government-to-government relationships of the United States with Tribal
entities may be affected by the designation. We also consider any
State, local, social, or other impacts that might occur because of the
designation.
Summary of Exclusions Considered Under Section 4(b)(2) of the Act
In preparing this proposal, we have determined that no HCPs or
other management plans for the Navasota false foxglove currently exist,
and the proposed designation does not include any Tribal lands or trust
resources or any lands for which designation would have any economic or
national security impacts. Therefore, we anticipate no impact on Tribal
lands, partnerships, or HCPs from this proposed critical habitat
designation, and thus, as described above, we are not considering
excluding any particular areas on the basis of the presence of
conservation agreements or impacts to trust resources.
However, if through the public comment period we receive
information that we determine indicates that there are potential
economic, national security, or other relevant impacts from designating
particular areas as critical habitat, then as part of developing the
final designation of critical habitat, we will evaluate that
information and may conduct a discretionary exclusion analysis to
determine whether to exclude those areas under authority of section
4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19.
If we receive a request for exclusion of a particular area and after
evaluation of supporting information we do not exclude, we will fully
describe our decision in the final rule for this action.
Required Determinations
Clarity of the Rule
We are required by E.O.s 12866 and 12988 and by the Presidential
Memorandum of June 1, 1998, to write all rules in plain language. This
means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
[[Page 38472]]
Regulatory Planning and Review (Executive Orders 12866 and 13563, and
14094)
Executive Order 12866, as reaffirmed by E.O. 13563 and E.O. 14094,
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 14094 reaffirms the principles of E.O. 12866 and
E.O. 13563 and states that regulatory analysis should facilitate agency
efforts to develop regulations that serve the public interest, advance
statutory objectives, and are consistent with E.O. 12866, E.O. 13563,
and the Presidential Memorandum of January 20, 2021 (Modernizing
Regulatory Review). Regulatory analysis, as practicable and
appropriate, shall recognize distributive impacts and equity, to the
extent permitted by law. We have developed this proposed rule in a
manner consistent with these requirements. E.O. 13563 emphasizes
further that regulations must be based on the best available science
and that the rulemaking process must allow for public participation and
an open exchange of ideas. We have developed this proposed rule in a
manner consistent with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine whether potential
economic impacts to these small entities are significant, we considered
the types of activities that might trigger regulatory impacts under
this designation as well as types of project modifications that may
result. In general, the term ``significant economic impact'' is meant
to apply to a typical small business firm's business operations.
Under the RFA, as amended, and as understood in light of recent
court decisions, Federal agencies are required to evaluate the
potential incremental impacts of rulemaking on those entities directly
regulated by the rulemaking itself; in other words, the RFA does not
require agencies to evaluate the potential impacts to indirectly
regulated entities. The regulatory mechanism through which critical
habitat protections are realized is section 7 of the Act, which
requires Federal agencies, in consultation with the Service, to ensure
that any action authorized, funded, or carried out by the agency is not
likely to destroy or adversely modify critical habitat. Therefore,
under section 7, only Federal action agencies are directly subject to
the specific regulatory requirement (avoiding destruction and adverse
modification) imposed by critical habitat designation. Consequently, it
is our position that only Federal action agencies would be directly
regulated if we adopt the proposed critical habitat designation. The
RFA does not require evaluation of the potential impacts to entities
not directly regulated. Moreover, Federal agencies are not small
entities. Therefore, because no small entities would be directly
regulated by this rulemaking, the Service certifies that, if made final
as proposed, the proposed critical habitat designation would not have a
significant economic impact on a substantial number of small entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if made final, the proposed
critical habitat designation would not have a significant economic
impact on a substantial number of small business entities. Therefore,
an initial regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. In our economic analysis, we did not find that this
proposed critical habitat designation would significantly affect energy
supplies, distribution, or use. Therefore, this action is not a
significant energy action, and no Statement of Energy Effects is
required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following finding:
(1) This proposed rule would not produce a Federal mandate. In
general, 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
[[Page 38473]]
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 are not likely to 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 proposed rule would significantly
or uniquely affect small governments because it will not produce a
Federal mandate of $100 million or greater in any year, that is, it is
not a ``significant regulatory action'' under the Unfunded Mandates
Reform Act. The designation of critical habitat imposes no obligations
on State or local governments and, 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 Navasota false foxglove in a takings implications
assessment. The Act does not authorize the Service to regulate private
actions on private lands or confiscate private property as a result of
critical habitat designation. Designation of critical habitat does not
affect land ownership, or establish any closures, or restrictions on
use of or access to the designated areas. Furthermore, the designation
of critical habitat does not affect landowner actions that do not
require Federal funding or permits, nor does it preclude development of
habitat conservation programs or issuance of incidental take permits to
permit actions that do require Federal funding or permits to go
forward. However, Federal agencies are prohibited from carrying out,
funding, or authorizing actions that would destroy or adversely modify
critical habitat. A takings implications assessment has been completed
for the proposed designation of critical habitat for Navasota false
foxglove, and it concludes that, if adopted, this designation of
critical habitat would not pose significant takings implications for
lands within or affected by the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this proposed rule does
not have significant Federalism effects. A federalism summary impact
statement is not required. In keeping with Department of the Interior
and Department of Commerce policy, we requested information from, and
coordinated development of this proposed critical habitat designation
with, appropriate State resource agencies. From a federalism
perspective, the designation of critical habitat directly affects only
the responsibilities of Federal agencies. The Act imposes no other
duties with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, the proposed rule does
not have substantial direct effects either on the States, or on the
relationship between the Federal government and the States, or on the
distribution of powers and responsibilities among the various levels of
government. The proposed designation may have some benefit to these
governments because the areas that contain the features essential to
the conservation of the species are more clearly defined, and the
physical or biological features of the habitat necessary for the
conservation of the species are specifically identified. This
information does not alter where and what federally sponsored
activities may occur. However, it may assist State and local
governments in long-range planning because they no longer have to wait
for case-by-case section 7 consultations to occur.
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) of the Act would 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 E.O. 12988 (Civil Justice Reform), the Office of
the Solicitor has determined that the rule would not unduly burden the
judicial system and that it meets the requirements of sections 3(a) and
3(b)(2) of the Order. We have proposed designating critical habitat in
accordance with the provisions of the Act. To assist the public in
understanding the habitat needs of the species, this proposed rule
identifies the physical or biological features essential to the
conservation of the species. The proposed areas of critical habitat are
presented on maps, and the proposed rule provides several options for
the interested public to obtain more detailed location information, if
desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not
required. We may not conduct or sponsor and you are not required to
respond to a collection of information unless it displays a currently
valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
Regulations adopted pursuant to section 4(a) of the Act are exempt
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et
seq.) and do not require an environmental analysis under NEPA. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This includes
listing, delisting, and reclassification rules, as well as critical
habitat designations. In a line of cases starting with Douglas County
v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), the courts have upheld this
position.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), E.O. 13175 (Consultation and Coordination
with Indian Tribal Governments), and the Department of the Interior's
manual at
[[Page 38474]]
512 DM 2, we readily acknowledge our responsibility to communicate
meaningfully with federally recognized Tribes on a government-to-
government basis. In accordance with Secretary's 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 proposed critical habitat designation for the
Navasota false foxglove, so no Tribal lands would be affected by the
proposed designation.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a> and upon request from
the Texas Coastal Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this proposed rule are the staff members of
the Fish and Wildlife Service's Species Assessment Team and the Texas
Coastal 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.
Proposed Regulation Promulgation
Accordingly, we propose to 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
``Agalinis navasotensis'' 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
* * * * * * *
Agalinis navasotensis........... Navasota false Wherever found.... E [Federal Register
foxglove. citation when
published as a final
rule]; 50 CFR
17.96(a).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. In Sec. 17.96, amend paragraph (a) by adding an entry for ``Family
Orobanchaceae: Agalinis navasotensis (Navasota false foxglove)''
immediately following the entry for ``Family Orobanchaceae: Castilleja
cinerea (ash-gray Indian paintbrush)'' to read as follows:
Sec. 17.96 Critical habitat--plants.
(a) Flowering plants.
* * * * *
Family Orobanchaceae: Agalinis navasotensis (Navasota false
foxglove)
(1) Critical habitat units are depicted for Grimes and Tyler
Counties, Texas, on the maps in this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of Navasota false foxglove consist of the
following components:
(i) Calcareous sandy to clay loam soils that are ungrazed,
unplowed, shallow thin soils.
(ii) Open prairie habitat with limited woody encroachment.
(iii) Annual precipitation events that provide enough soil moisture
to germinate.
(iv) Full sun exposure (no more than 10 to 15 percent shade).
(v) Presence of the little bluestem (Schizachyrium scoparium) as
host plant.
(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
the effective date of the final rule.
(4) Data layers defining critical habitat units were created using
stream segments from the U.S. Geological Survey National Hydrography
Dataset. The maps in this entry, as modified by any accompanying
regulatory text, establish the boundaries of the critical habitat
designation. The coordinates or plot points or both on which each map
is based are available to the public at the Service's internet site at
<a href="https://www.fws.gov/office/texas-coastal-ecological-services">https://www.fws.gov/office/texas-coastal-ecological-services</a> or at
<a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R2-ES-2022-0156.
(5) Index map follows:
Figure 1 to Family Orobanchaceae: Agalinis navasotensis (Navasota false
foxglove) paragraph (5)
[[Page 38475]]
[GRAPHIC] [TIFF OMITTED] TP13JN23.000
(6) Units EO 6674 (East) and EO 6674 (West); Grimes County, Texas.
(i) Unit EO 6674 (East) consists of approximately 0.8 acres (ac)
(0.3 hectares (ha)) on private land located east of Navasota, in
central-west Grimes County, Texas. Unit EO 6674 (East) is along a well-
drained ridge line that extends down to Farm to Market 3090. The Unit
EO 6674 (East) right-of-way is owned by the Texas Department of
Transportation.
(ii) Unit EO 6674 (West) consists of approximately 0.5 ac (0.2 ha)
on private land located east of Navasota, in central-west Grimes
County, Texas. This unit is just off Country Road 403. Unit EO 6674
(West) is a fenced area for cattle and extends along a shallow, well-
drained area along the side of a grazing allotment.
(iii) Map of Units EO 6674 (East) and EO 6674 (West) follows:
Figure 2 to Family Orobanchaceae: Agalinis navasotensis (Navasota false
foxglove) paragraph (6)(iii)
[[Page 38476]]
[GRAPHIC] [TIFF OMITTED] TP13JN23.001
(7) Unit EO 9000 (Tyler); Tyler County, Texas.
(i) Unit EO 9000 (Tyler) consists of approximately 0.6 ac (0.2 ha)
of private land northwest of Colmesneil, in northern Tyler County,
Texas. This unit is located along the roadside of County Road 2845.
Unit EO 9000 (Tyler) has previously been harvested for timber.
(ii) Map of Unit EO 9000 (Tyler) follows:
Figure 3 to Family Orobanchaceae: Agalinis navasotensis (Navasota false
foxglove) paragraph (7)(ii)
[[Page 38477]]
[GRAPHIC] [TIFF OMITTED] TP13JN23.002
* * * * *
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-12129 Filed 6-12-23; 8:45 am]
BILLING CODE 4333-15-P
</pre></body>
</html>Indexed from Federal Register on June 13, 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.