Proposed Rule2023-12132
Endangered and Threatened Wildlife and Plants; Endangered Species Status for Swale Paintbrush
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 8, 2023
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), propose to list the swale paintbrush (Castilleja ornata), a flowering plant species from New Mexico within the United States and the states of Chihuahua and Durango in Mexico, 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 the swale paintbrush. After a review of the best available scientific and commercial information, we find that listing the species is warranted. If we finalize this rule as proposed, it would add this species to the List of Endangered and Threatened Plants and extend the Act's protections to the species. We find that designating critical habitat for the swale paintbrush is not prudent at this time.
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[Federal Register Volume 88, Number 110 (Thursday, June 8, 2023)]
[Proposed Rules]
[Pages 37490-37504]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-12132]
[[Page 37490]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2022-0173; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BF79
Endangered and Threatened Wildlife and Plants; Endangered Species
Status for Swale Paintbrush
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list the swale paintbrush (Castilleja ornata), a flowering plant
species from New Mexico within the United States and the states of
Chihuahua and Durango in Mexico, 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 the swale
paintbrush. After a review of the best available scientific and
commercial information, we find that listing the species is warranted.
If we finalize this rule as proposed, it would add this species to the
List of Endangered and Threatened Plants and extend the Act's
protections to the species. We find that designating critical habitat
for the swale paintbrush is not prudent at this time.
DATES: We will accept comments received or postmarked on or before
August 7, 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 24, 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-2022-0173,
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-2022-0173, 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).
FOR FURTHER INFORMATION CONTACT: Shawn Sartorius, Field Supervisor,
U.S. Fish and Wildlife Service, New Mexico Ecological Services Field
Office, 2105 Osuna Road NE, Albuquerque, NM 87113; telephone 505-346-
2525. Individuals in the United States who are deaf, deafblind, hard of
hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services. Individuals
outside the United States should use the relay services offered within
their country to make international calls to the point-of-contact in
the United States.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, a species warrants
listing if it meets the definition of an endangered species (in danger
of extinction throughout all or a significant portion of its range) or
a threatened species (likely to become an endangered species in the
foreseeable future throughout all or a significant portion of its
range). If we determine that a species warrants listing, we must list
the species promptly and designate the species' critical habitat to the
maximum extent prudent and determinable. We have determined that the
swale paintbrush meets the definition of an endangered species;
therefore, we are proposing to list it as such. Listing a species as an
endangered or threatened species 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 swale paintbrush as
an endangered species under the Act.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined that habitat loss and
fragmentation, hydrological alteration, altered fire regimes, effects
from intensive grazing pressure, exotic plant invasion, climate change
impacts (i.e., drought and increased cool season temperatures), and
cumulative effects of multiple stressors are threats to the swale
paintbrush to the degree that listing it as an endangered species under
the Act is warranted. Additionally, future collection risk may have
compounding impacts on the species' viability.
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary), to the maximum extent prudent and determinable, to
designate critical habitat concurrent with listing. We have determined
that designating critical habitat for swale paintbrush is not prudent
due to the threat of collection and that increased collection risk
outweighs the benefits that would be afforded to the species from the
designation of 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 for pollination, reproduction, and dispersal;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns
and the locations of any additional populations of this species;
(d) Historical and current population levels, and current and
projected trends;
(e) Past and ongoing conservation measures for the species, its
habitat, or both; and
(f) Information on the species' biology, habitat, or status of
populations at historical locations or within suitable habitats in
Mexico.
(2) Factors that may affect the continued existence of the species,
which may include habitat modification or destruction, overutilization,
disease, predation, the inadequacy of existing regulatory mechanisms,
or other natural or manmade factors.
(3) Biological, commercial trade, or other relevant data concerning
any
[[Page 37491]]
threats (or lack thereof) to this species and existing regulations that
may be addressing those threats.
(4) Additional information concerning the historical and current
status of this species.
(5) Information regarding our determination that designating
critical habitat for the swale paintbrush is not prudent.
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 data available.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send 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 and information 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, we may consider proposing
areas of critical habitat if, after considering new information and
public comments, we determine that designating critical habitat is
prudent and determinable. 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 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 18, 2007, Forest Guardians (now WildEarth Guardians)
petitioned the Service to list 475 species in the southwestern United
States, including the swale paintbrush, as an endangered or a
threatened species under the Act. On December 16, 2009, the Service
published in the Federal Register (74 FR 66866) a partial 90-day
petition finding that the petition provided substantial information
indicating that the swale paintbrush may warrant listing under the Act
based on loss and degradation of suitable habitat (Factor A). This
document constitutes the 12-month finding on the petition to list the
swale paintbrush under the Act.
Peer Review
A species status assessment (SSA) team prepared an SSA report for
the swale paintbrush (Service 2023, entire). The SSA team was composed
of Service biologists, in consultation with other species experts. The
SSA report represents a compilation of the best scientific and
commercial data available concerning the status of the species,
including the impacts of past, present, and future factors (both
negative and beneficial) affecting the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review of
listing actions under the Act, we solicited independent scientific
review of the information contained within the swale paintbrush SSA
report. The Service sent the SSA report to four independent peer
reviewers and received two responses. Results of this structured peer
review process can be found at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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 Review 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 within the SSA report.
The peer reviewers generally concurred with our methods and conclusions
presented within the draft SSA report. They provided some additional
information, clarifications in terminology, further discussions and
interpretations of herbarium records, and feedback on stressors. We
incorporated the majority of the substantive comments into the swale
paintbrush SSA report, and thus this proposed rule. We outline the
substantive comments that we did not incorporate, or fully incorporate,
into the SSA report below.
(1) Comment: Both reviewers suggested alternative locations for the
georeferenced location of some herbarium records based upon their
knowledge and interpretation of the collection notes for the specimen
in question, other specimens collected by the same collector, and
specimens collected by other collectors that were known to be
collecting on the same trip.
Response: We incorporated the new information for the records in
question into the SSA report, where appropriate. Where alternate
collection site locations were proposed, we considered both our
originally georeferenced location and the alternate site as potential
collection locations for the record. Most of the alternate locations
were located within our 10-kilometer (6.2-mile) buffer zone, with the
exception of the Palmer 320 site, which was located 20.1 kilometers
(12.5 miles) south-southwest of the originally georeferenced locality.
Since the buffer zone analyses were designed to approximate the
disturbance patterns for a larger geographic area and consider the
positional uncertainty in our georeferenced locations, we did not re-
[[Page 37492]]
run the disturbance analyses on the alternate collection sites. We
assumed that the percent, intensity, and trends in disturbance would be
roughly equivalent for all sites within the larger buffered area.
However, we added additional discussion to our disturbance analysis
narrative and overall summaries, where appropriate, to include
information about disturbance in the near vicinity of the alternate
collection locations.
We also received information about one previously unknown herbarium
record within the Animas Valley of New Mexico, the Cowan Ranch site.
Both peer reviewers alerted us to the omission of this site, and we
added the Cowan Ranch record to our assessments throughout the SSA
report. The Cowan Ranch site is also considered within this proposed
rule.
(2) Comment: One reviewer questioned the inclusion versus exclusion
of some of the herbarium specimens as swale paintbrush records.
Specifically, they questioned our treatment of Castilleja palmeri and
C. pediaca as synonyms of C. ornata (swale paintbrush). They noted that
two primary online reference databases for plants (i.e., the Missouri
Botanical Garden's Tropicos database and the Royal Botanic Gardens,
Kew's Plants of the World database) do not recognize C. palmeri and C.
pediaca as synonyms of C. ornata; however, they acknowledged that the
researchers who annotated the type specimens considered these species
synonyms. Thus, they requested that we include additional records that
were labeled as C. palmeri and C. pediaca in herbarium records as swale
paintbrush within our analyses and add some clarifying language in our
consideration of taxonomy.
Response: We consulted with an expert in Castilleja systematics to
verify the accuracy of all of the swale paintbrush records that we
considered in our analyses as well as the additional records mentioned
by the reviewer. After our discussions and consideration of the
information provided through peer review, we added two of the suggested
records as swale paintbrush and kept one record, Palmer 376, as
``likely not swale paintbrush'' within our SSA report. We did not
include the Palmer 376 record because the species identity of the C.
palmeri type collection remains an open question. This specimen is
likely not swale paintbrush (C. ornata) given that the specimen and
typical swale paintbrush specimens have differences in morphology and
the collection is much farther south than known swale paintbrush
collections. Further, this C. palmeri record was described in the same
paper as some swale paintbrush specimens, and the author considered
them to be separate species (Eastwood 1909, pp. 570-571). Thus, it was
recommended to treat ambiguous C. palmeri specimens as likely not swale
paintbrush until further specimens could be studied (Egger 2022a, pers.
comm.; Egger 2022b, pers. comm.).
(3) Comment: One reviewer suggested that we consider soil
formations and the geological history of the species' range within our
assessments of swale paintbrush. They suggested that swale paintbrush
occurrence may be associated with pluvial Pleistocene lakes, such as
the Cloverdale Lake in the Animas Valley and the Bavicora Lake in
Chihuahua, or alluvial filled canyon bottoms.
Response: Although there is potential for up to four of the
historical collection sites being associated with some of the
historical pluvial or alluvial geologic features, this observation does
not appear to be diagnostic for the species across its range. Given the
large uncertainty in the georeferenced locations for the historical
sites, especially those within Mexico, any associations based on those
locations may be spurious. Thus, we did not include these pluvial and
alluvial features as a potentially diagnostic character for swale
paintbrush occupancy. However, we updated and clarified our soil type
associations discussion to include the soil types observed at alternate
sites.
(4) Comment: One reviewer questioned whether we could speak
strongly to aspects of the swale paintbrush's ecology given a lack of
research on the topic. Specifically, they questioned whether we could
state if the species relies on seasonal inundation, fire, and grazing
as well as the timing of those impacts.
Response: We acknowledge that there is inherent uncertainty within
our SSA report with regard to the swale paintbrush ecology given the
scarcity of information on this species. The bulk of published studies
pertain to the species' taxonomy rather than the species' ecology. Most
observations for the species occurred from limited observations of
swale paintbrush at a single site over the last 30 years. Thus, we used
information from other species within the genus Castilleja, information
from other herbaceous plants within Madrean desert ecosystems, and
observations of swale paintbrush habitat over the last decade to inform
our assessments. For species that have limited data, such as swale
paintbrush, data from a surrogate species are informative for assessing
that status of the species and/or threats to the species' habitat;
however, we acknowledge our uncertainties related to our assessment and
use of surrogate information throughout the SSA report, particularly in
chapter 6 (Service 2023, entire).
The full list of peer reviewer comments and the SSA report (Service
2023, entire), which incorporates the feedback from peer and partner
reviews, are available for public review at <a href="https://www.regulations.gov">https://www.regulations.gov</a>
under Docket No. FWS-R2-ES-2022-0173.
I. Proposed Listing Determination
Background
A thorough review of the taxonomy, life history, and ecology of the
swale paintbrush (Castilleja ornata) is presented in the SSA report
(Service 2023, entire). The swale paintbrush (also known as the glowing
Indian paintbrush and the ornate paintbrush) is an annual species of
flowering plant in the family Orobanchaceae. There is no taxonomic
uncertainty surrounding the validity of swale paintbrush as a species
(Egger 2002 pp. 193, 195; Integrated Taxonomic Information System
(ITIS) 2022, unpaginated); thus, we recognize swale paintbrush as a
valid species and, therefore, a listable entity under the Act.
The swale paintbrush is native to the grassland ecosystems of
Hidalgo County, New Mexico, in the United States and to the eastern
Sierra Madre Occidental in Chihuahua and Durango in Mexico (McIntosh
1994, pp. 329-330). The species has been historically documented from
13 sites: 2 sites within Hidalgo County, New Mexico; 10 sites in
Chihuahua, Mexico; and 1 site in Durango, Mexico. Swale paintbrush was
first observed from a site in Chihuahua, Mexico, in 1887, but not
discovered in New Mexico until 1993 (Service 2023, pp. 6-11). The swale
paintbrush was last observed in Mexico in 1985 and New Mexico in 2021.
Currently, the species is only known to occur at a single site in the
Animas Valley of Hidalgo County, New Mexico: the Gray Ranch site.
Additional surveys within suitable habitat in the vicinity of known
sites have not yielded additional locations for the species (Roth 2017,
p. 3; Roth 2020, pp. 5, 7; Service 2023, unpublished data). The current
status of swale paintbrush at the other historical sites is unknown.
Given the species' overall rarity, little is known about the
habitat requirements for swale paintbrush. Across the species'
historical range, swale paintbrush has been observed in relatively
level, seasonally wet grassland habitats at elevations ranging
[[Page 37493]]
from approximately 1,500-2,300 meters (m) (4,920-7,550 feet (ft))
(Service 2023, pp. 6-20). Species within the genus Castilleja are root
hemiparasites, meaning that plant vigor depends on exploitation of host
plants for carbon, nitrogen, and other nutrients (Heckard 1962, p. 29).
Castilleja plants begin to establish connections with host plant roots
(via structures called haustoria) as seedlings (Heckard 1962, p. 28).
For swale paintbrush, alkali sacaton (Sporobolus airoides) and blue
grama (Bouteloua gracilis) are thought to be the primary host plants
within the Animas Valley populations.
Swale paintbrush individuals have one or a few erect stems that
stand 20-50 centimeters (cm) (7.9-19.7 inches (in)) in height. Plants
have oblong leaves with strongly wavy leaf margins and floral bracts
are typically off-white to very pale yellow (New Mexico Rare Plant
Technical Council (NMRPTC) 1999, unpaginated), although reddish phases
of the plant have been observed within herbarium records. Across the
range, aspects of the swale paintbrush's life cycle seem timed to
monsoon season precipitation patterns. Plants germinate between April
and June, flower between late-May and late-August (coincident with
monsoonal rainfall), and set seed in late August through October
(NMRPTC 1999, unpaginated). The longevity of swale paintbrush in the
seedbank is unknown; however, the longevity of surrogate Castilleja
species is up to 5 years in storage and 2 years in the wild (Service
2023, pp. 22-24).
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 the foreseeable
future as a particular number of years. Analysis of the foreseeable
future uses the best scientific and commercial data available and
should consider the timeframes applicable to the relevant threats and
to the species' likely responses to those threats in view of its life-
history characteristics. Data that are typically relevant to assessing
the species' biological response include species-specific factors such
as lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent our decision
on whether the species should be 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 swale paintbrush viability, we used the three
conservation biology principles of resiliency, redundancy,
[[Page 37494]]
and representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency is the ability of the species to withstand environmental and
demographic stochasticity (e.g., wet or dry, warm or cold years),
redundancy is the ability of the species to withstand catastrophic
events (e.g., droughts, large pollution events), and representation is
the ability of the species to adapt to both near-term and long-term
changes in its physical and biological environment (e.g., 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 swale paintbrush SSA report; the full SSA report can be found at
Docket FWS-R2-ES-2022-0173 on <a href="https://www.regulations.gov">https://www.regulations.gov</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 note that, by using the
SSA framework to guide our analysis of the scientific information
documented in the SSA report, we have not only analyzed individual
effects on the species, but we have also analyzed their potential
cumulative effects. We incorporate the cumulative effects into our SSA
analysis when we characterize the current and future condition of the
species. To assess the current and future condition of the species, we
undertake an iterative analysis that encompasses and incorporates the
threats individually and then accumulates and evaluates the effects of
all the factors that may be influencing the species, including threats
and conservation efforts. Because the SSA framework considers not just
the presence of the factors, but to what degree they collectively
influence risk to the entire species, our assessment integrates the
cumulative effects of the factors and replaces a standalone cumulative
effects analysis. For a full description of our analyses, see the swale
paintbrush SSA report (Service 2023, entire).
Species Needs
The individual, population-level, and species-level needs of the
swale paintbrush are summarized in tables 1 through 3, below. For
additional information, please see the SSA report (Service 2023,
chapter 2).
Table 1--The Ecological Requisites for Survival and Reproductive Success
of Swale Paintbrush Individuals
------------------------------------------------------------------------
Life stage Requirements Description
------------------------------------------------------------------------
Seeds--germination............ Suitable abiotic <bullet> Winter
conditions. temperatures below 2
degrees Celsius (36
degrees Fahrenheit)
for cold
stratification.
<bullet> Suitable
warmth, light, and
soil moisture for
germination of
seeds; cool season
precipitation
supports germination
soil moisture.
Seedlings and Vegetative Suitable biotic <bullet> Adequate
Plants--establishment and and abiotic monsoonal rainfall
growth. conditions. June through August,
the critical
rainfall period for
swale paintbrush,
for growth and
establishment.
<bullet> Proximity of
surrounding plants,
likely alkali
sacaton (Sporobolus
airoides) and/or
blue grama
(Bouteloua
gracilis), for
increased water and
nutrient uptake via
parasitic haustoria.
<bullet> Lack of
herbivory throughout
germination,
establishment, and
growth periods.
Flowering Plants--reproduction Pollination...... <bullet> Presence of
suitable pollinators
during the flowering
season (June to
September).
<bullet> Lack of
herbivory through
flower production
(June to September)
and seed set (July
to October).
------------------------------------------------------------------------
Table 2--Population-Level Requisites Necessary for a Healthy Population
of Swale Paintbrush
------------------------------------------------------------------------
Resiliency type Requirements Detail
------------------------------------------------------------------------
Demographic................... Population growth <bullet> The long-
rate ([lambda]). term [lambda] needs
to be high enough to
rebound from
periodic population
crashes, i.e., on
average [lambda]
>1.0.
Population size <bullet> Sufficiently
(N). large N to withstand
periodic stochastic
events and
population crashes.
<bullet> The N
required may vary
geographically
across populations.
Habitat....................... Precipitation.... <bullet> Adequate
quantity and timing
of cool season
rainfall to allow
for germination and
establishment.
<bullet> Adequate
quantity and timing
of monsoonal
rainfall during the
critical rainfall
period of swale
paintbrush (June
through August) to
allow for
germination,
establishment,
growth, survival,
and reproduction.
Habitat.......... <bullet> Presence of
host species, likely
alkali sacaton, for
hemiparasitic
relationships and
increased uptake of
water and nutrients.
[[Page 37495]]
<bullet> Minimal to
no nonnative
vegetation that
outcompete swale
paintbrush, its host
species, or
pollinator forage
and host plants for
soil nutrients,
light, and water
resources.
<bullet> Absence of
persistent chemical
contaminants that
interfere with swale
paintbrush's, host
species', or
pollinator species'
physiological
functionality.
<bullet> Limited
levels of herbivory
across all life
stages.
<bullet> Natural
processes, such as
hydrological cycles
and periodic
disturbances, that
maintain grassland
integrity (e.g.,
natural fire return
intervals of low
intensity,
seasonally
appropriate fires
that maintain canopy
gaps, enhance grass
and forb growth, and
prevent colonization
by woody species).
Pollination...... <bullet> Presence of
suitable
pollinator(s).
<bullet> Sufficient
soil moisture and
nutrients for
production of
flowers and nectar
resources.
<bullet> An abundance
and diversity of
native flowering
plants within the
habitat to attract
pollinators and
maintain genetic
connectivity between
swale paintbrush
patches.
------------------------------------------------------------------------
Table 3--Species-Level Ecology of Swale Paintbrush: Requirements for
Long-Term Viability
[Ability to maintain self-sustaining populations over a biologically
meaningful timeframe]
------------------------------------------------------------------------
Species-level
3 Rs requisites Description
------------------------------------------------------------------------
Resiliency.................... Self-sustaining Self-sustaining
populations populations are
across the demographically,
species' range. genetically, and
physiologically
robust; have
sufficient quantity
of high-quality
habitat; and are
free of, or have
manageable, threats.
Redundancy.................... Sufficient Sufficient
distribution of distribution to
populations to guard against
spread risk. catastrophic events
wiping out portions
of the species'
adaptive diversity
and the species as a
whole (i.e., to
reduce covariance
among populations);
spread out
geographically but
also ecologically
(different
ecological
settings).
Representation................ Maintain adaptive Populations
diversity of the maintained across
species. spatial and
environmental
gradients to
maintain ecological
and genetic
diversity.
Maintain Maintain evolutionary
evolutionary drivers (gene flow,
processes. natural selection,
genetic drift) to
mimic historical
patterns.
------------------------------------------------------------------------
Risk Factors for the Swale Paintbrush
The primary factors influencing swale paintbrush viability are
habitat loss and fragmentation, hydrological alteration, altered fire
regimes, effects from intensive grazing pressure, exotic plant
invasion, climate change impacts (i.e., drought and increased cool
season temperatures), and cumulative effects of multiple stressors.
Additionally, future collection risk may have compounding impacts on
the species' viability. The majority of information pertaining to these
threats are based on the New Mexico portion of the species' range;
however, based on visual inspections of aerial imagery and the limited
information we have on the historical sites, we believe these are
threats to this species rangewide. These stressors and their effects to
swale paintbrush are summarized below.
Habitat Loss and Fragmentation
Habitat loss (Factor A) results in mortality of active plants,
within-site seedbank loss, reduction in available habitat, overall
decline in occupied area and abundance, increased edge effects, and
decreased genetic exchange (Oostermeijer 2003, p. 3 and references
therein). Edge effects include reduced wildlife use and travel (and the
associated decrease in genetic exchange), reduced infiltration of
precipitation, altered surface and subsurface hydrology, increased
human activities, and exotic plant invasion (Forman and Alexander 1998,
pp. 210, 223; Bhattacharya et al. 2003, p. 37; Raiter et al. 2018, pp.
445-446; Sawyer et al. 2020, p. 934). The combined effects of habitat
loss and edge effects can lead to fragmented and small populations that
have reduced genetic exchange and hence reduced reproductive potential
and adaptive capacity (Oostermeijer 2003, p. 1 and reference therein).
Major sources of habitat loss and fragmentation within swale
paintbrush's range include conversion to agriculture and development
associated with human habitation and transportation.
Hydrological Alteration
Swale paintbrush relies on cool season precipitation, monsoon
precipitation, and a suitable surface/subsurface hydrology to complete
its life cycle and maintain its seedbank. Thus, this species is
sensitive to hydrological alterations (Factor A), such as artificial
drought and emergence season inundation. Artificial drought occurs when
upslope obstacles to, or diversions of, surface flows starve downslope
areas that would have otherwise received those flows (Raiter et al.
2018, pp. 445-446; Roth 2020, p. 5; Nichols and Degginger 2021,
entire). One report suggests that disturbance altered local hydrology
in the Gray Ranch area, starving previously occupied patches of
habitat, and rendering them unsuitable for the species (Roth 2020, p.
5). Alternately, downslope obstacles to surface flows may permanently
or seasonally flood upslope areas that would have otherwise shed flows
to downslope areas. Prolonged inundation causes forb mortality,
reducing forb cover and increasing graminoid (grass-like) cover and
height (Insausti et al. 1999, pp. 267, 269-271). If inundation
interrupts the species' annual lifecycle, existing seedbanks may become
[[Page 37496]]
depleted and/or seedbank replenishment may be thwarted, depending on
the timing, intensity, and/or duration of flooding (Insausti et al.
1999, p. 272).
Altered Fire Regime
Fire intensity, frequency, and seasonality (Factor A) have direct
and indirect influences on swale paintbrush. Swale paintbrush relies
heavily on canopy gaps and mineralized soil nutrient inputs for
establishment and growth. Fire fosters these conditions and also
reduces the cover of woody vegetation. It stimulates the growth of
other grasses, including blue grama (which is one of swale paintbrush's
host plants), and forbs (which support pollinators and, hence, swale
paintbrush pollination) (Johnson 2000, unpaginated; Anderson 2003,
unpaginated; Lybbert et al. 2017, p. 1030; Sam 2020, p. 69; Bestelmeyer
et al. 2021, p. 181).
Prehistoric fire return intervals in Madrean ecosystems range from
2.5-10 years. Grasslands, a key ecosystem for swale paintbrush, are
more likely to convert to shrublands or woodlands when fire return
intervals exceed 10 years. Fire management regimes and grazing
intensity (described below) affect fire frequency, and these habitats
are sensitive to fire suppression and herbivore removal of fine fuels,
which decrease fire frequency and may lead to increased intensity of
fires when they do occur (Kaib et al. 1996, pp. 253, 260; Swetnam and
Baisan 1996, pp. 23, 25; Brown and Archer 1999, pp. 2393-2394; Poulos
et al. 2013, pp. 3-4, 8; NatureServe 2021, unpaginated). Excessive fire
frequency, though less likely to occur, may also have detrimental
impacts on swale paintbrush populations. For example, alkali sacaton's
post-fire recovery time is 2-4 years, and high fire frequency can lower
pollinator abundance and diversity (Johnson 2000, unpaginated; Carbone
et al. 2019, p. 7). In turn, decreased pollinator abundance and
diversity results in decreased pollination rates of swale paintbrush,
which then leads to decreased reproduction and seedbank replenishment.
Uncharacteristic fire seasonality is likely to adversely affect
swale paintbrush. While a spring fire season is characteristic of the
Sierra Madre Occidental and adjacent Madrean ecosystems, a summer fire
season is characteristic of the rest of the desert southwest (Swetnam
et al. 2001, pp. 5, 8; Poulos et al. 2013, p. 8). Current natural
ignitions for the historical Gray Ranch area are reported to rarely
start before the middle of April or after the middle of July (Brown
1998, p. 250). However, fire prescriptions for the Animas Valley area
are timed to avoid the breeding seasons of several wildlife species,
potentially pushing prescription burns into mid-August, swale
paintbrush's reproductive season (Malpai Borderlands Group (MBG) 2008,
pp. 63-116). If fire interrupts the species' annual lifecycle, existing
seedbanks may become depleted and/or seedbank replenishment may be
thwarted.
Effects of Intensive Grazing
Swale paintbrush occurs in grasslands that are used for grazing.
While spring grazing helps to create the canopy gaps that this species
needs for establishment, excessive grazing pressure that results in
significant canopy loss increases the potential for evaporation,
erosion, and nutrient loss (Factor A) (Li et al. 2007, pp. 318, 329-
331). These effects can reduce swale paintbrush productivity both
directly and indirectly through impacts on the productivity of
symbiotic and host species (Pimentel and Kounang 1998, pp. 419-421).
Palatability of species in the genus Castilleja is considered poor for
horses, poor to fair for cattle, and fair to good for sheep (New Mexico
State University n.d., unpaginated). However, the swale paintbrush's
slender stem morphology and erect growth habitat make them vulnerable
to trampling by livestock when habitats are grazed during the plant's
growing season. If grazing or trampling interrupt the species' annual
lifecycle, existing seedbanks may become depleted and/or seedbank
replenishment may be thwarted, depending on the timing, intensity, and/
or duration of the grazing. Winter-spring grazing is least likely to
affect swale paintbrush survival and reproduction directly. Excessive
herbivory during winter-spring could result in shifting the fire season
further into the growing season, which could have negative impacts on
seedbank replenishment and viability.
Exotic Plant Invasion
Exotic plants (Factor A) can become introduced to, and dispersed
within, grassland habitats by the travel of both humans and animals.
Invasive exotic plants could reduce the availability of canopy gaps
and/or outcompete swale paintbrush for available gaps, soil moisture,
and soil nutrients, potentially both depleting the existing seedbank
and reducing seedbank replenishment. Co-occurring noxious plant species
also increase the risks of herbicide exposure. For a list of documented
introduced species within the Gray Ranch area, see the SSA report
(Service 2023, pp. 29-30). Introduced species in the vicinity of the
sites in Mexico are unknown.
Climate Change Impacts
Climate change (Factor E) has the potential to affect all of the
following factors: drought (and associated increases in grazing
pressure), flood, fire, and vulnerability to exotic plant invasion. The
New Mexico sites are classified as an Apacherian-Chihuahuan Semi-Desert
Grassland and Steppe ecological system within the EPA level 3 Madrean
Archipelago ecoregion and the EPA level 4 Madrean Basin Grasslands
ecoregion. This system is highly vulnerable to future climate changes.
The remaining historical collection sites in Mexico are in Chihuahuan
Semi-Desert Grassland and Steppe ecological systems within Sierra Madre
Occidental ecoregions, which are moderately vulnerable to future
climate changes. Projections for the Cloverdale HUC 08 watershed
predict increasing temperatures and less available soil moisture, which
would be akin to prolonged drought. The elevated temperatures and
increased aridity projected across swale paintbrush's historical range
render these systems vulnerable to conversion to shrub-steppe
(Caracciolo et al. 2016, pp. 2-3; NatureServe 2021, unpaginated). These
changes are likely to impact swale paintbrush populations at the
northern- and southern-most extents of this species' range, including
the verified extant population in New Mexico. Increased growing season
aridity may stress the germination, establishment, growth, and
reproduction of swale paintbrush plants, and increased winter
temperatures may reduce swale paintbrush's capacity to overcome seed
dormancy before seeds in the soil seedbank become unviable. The
combined effects of increased soil seedbank loss and reduced seedbank
replenishment leads to smaller population sizes, and, thus, the species
would be more susceptible to environmental and demographic
stochasticity.
Collection Risk
A future threat to the species is the emerging risk of collection
(Factor B). Although no illegal collection events of swale paintbrush
have been documented, other species within the genus Castilleja are
horticulturally desirable. Many Castilleja species are readily
available via online companies, and yellow-bracted species,
aesthetically similar to swale paintbrush, are marketed as rare.
[[Page 37497]]
Currently, due to the species' rarity and limited distribution and
risks of illegal collection to rare species, swale paintbrush locality
data below the county level are not publicly available through online
databases (e.g., SEINet, Natural Heritage New Mexico, New Mexico Rare
Plants website). If the location of known occupied habitat became
publicly available, risk of illegal collection could increase. There is
a history of illegal collection occurring for other species at or
within the near vicinity of the Gray Ranch site. These collection
efforts targeted the Sonoran Desert toad (Bufo alvarius; New Mexico
Department of Game and Fish 2020, pp. 78-79), New Mexico ridge-nosed
rattlesnake (Crotalus willardi obscurus; Harris Jr. and Simmons 1975,
p. 6; Malpai Borderlands Group 2008, p. 60), and Mexican hog-nosed
snake (Heterodon kennerlyi; Medina 2021, pers. comm.). For the New
Mexico ridge-nosed rattlesnake specifically, collection over the period
of 1961-1974 may have resulted in the loss of 130 individuals from the
population (Service 2008, p. 37) and researchers encountered 15 illegal
collectors from six states during a single season (Harris Jr. and
Simmons 1975, p. 6). Swale paintbrush is easier to detect and collect
than these mobile, camouflaged species. Thus, given the desirability of
paintbrush species for horticultural use, the increased desirability of
rare species, the inability of this species to evade detection and
collection, and the history of illegal collection in the vicinity of
the Gray Ranch, illegal collection is a potential future emerging
threat for this species, especially if the location of known occupied
habitat becomes publicly available. Further, given the small known
extant range and population size of this species, its annual duration
and reliance on frequent seedbank replenishment, and risks to its
seedbank from stochastic events and other ongoing threats to the
species, effects from collection (removal of plants and damage to
habitat), illegal collection would be deleterious to swale paintbrush.
Cumulative Effects
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report (Service 2023,
entire), 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.
In summary, swale paintbrush is likely adapted to withstand
stochastic stressor events individually and intermittently. However,
increased intensity, frequency, co-occurrence of, or consecutive
occurrence of, and synergistic effects between, stochastic stressor
events increases this species risk. Given swale paintbrush's annual
duration, reliance on frequent seedbank replenishment, and its low seed
longevity, as few as two consecutive years of adverse environmental
conditions or human-caused or natural adverse stochastic events could
have catastrophic consequences for this species.
Current Condition
The swale paintbrush was historically documented from 13 sites in
the United States and Mexico: 2 sites in the Animas Valley of Hidalgo
County, New Mexico, and 11 sites in the eastern Sierra Madre Occidental
of Chihuahua and northern Durango in Mexico. Currently, only one site--
the Gray Ranch site--is known to exist within the Animas Valley of
Hidalgo County, New Mexico, and the species was last observed at this
site in 2021. The last observations of historical sites were 1993 in
New Mexico and 1985 in Mexico.
We assessed the swale paintbrush's current condition using a two-
pronged approach. First, for all known occupied and historically
collected swale paintbrush sites, we derived the amount and intensity
of disturbed area and currently protected areas within the vicinity of
each site using aerial imagery from the period of 2000 to 2020. Then,
we used these data to estimate the possibility of swale paintbrush
occupancy within the vicinity of the historical location and assigned
each site into one of four categories: (1) known extant, (2) possibly
extant, (3) possibly extirpated, and (4) presumed extirpated. Known
extant means that the population has been observed within the last
decade. Possibly extant means that the site is only known from
herbarium records but has a reasonable potential for rediscovery;
evidence of habitat loss or degradation is not substantial enough to
presume complete loss of swale paintbrush habitat since the time of
collection. Possibly extirpated means that the population is known only
from herbarium records and has a low potential for rediscovery;
evidence of habitat loss or degradation is substantial enough that loss
of the species at the site is possible. Presumed extirpated means that
the population is only known from herbarium records and has a very low
potential for rediscovery; evidence of habitat loss or alteration is
significant enough to presume complete loss of suitable habitat since
the time of collection.
Second, we conducted a more detailed assessment of the resiliency
for the known occupied site at the Gray Ranch in the Animas Valley.
Briefly, we considered the demographic factors (population abundance,
occupied area, and count of patches within the last 2 years) and
habitat factors (surface disturbance, herbicide exposure, fire regime,
grazing regime, inundation seasonality, growing season canopy cover,
and precipitation history). We assigned each factor into three
condition categories; (1) high (factor values that are compatible with
stable to increasing populations); (2) moderate (factor values that
contribute to minimal rates of decline), or (3) low (factor values that
contribute to high rates of decline). Our methodology and evaluations
of viability are described in more detail in the swale paintbrush SSA
report (Service 2023, chapter 4).
Based on our assessment of swale paintbrush's current conditions
across all sites, one site, the Gray Ranch site, is known extant, four
sites ranked as possibly extant, six sites ranked as possibly
extirpated, and two sites ranked as presumed extirpated. Of the four
possibly extant sites, swale paintbrush plants were last observed at
the sites in 1899, 1903, 1979, and 1993. Although potentially suitable
habitat may remain at some of the historical sites, particularly the
four possibly extant sites, the size and abundance (i.e., resiliency)
of the historical sites are unknown and we cannot reasonably assume
anything about the status of the species at these sites. Thus, the
swale paintbrush has no verifiable redundancy and very limited
representation throughout its known range.
Based on our detailed assessment of current condition, swale
paintbrush has moderate to high resiliency at the Gray Ranch site. The
most recent survey in September 2021 documented a minimum abundance of
6,000 plants--higher than our range of provisional minimum viable
population sizes (1,500-5,000 plants)--distributed across 2 patches and
28 acres of habitat in the Animas Valley. Generally, the site has
moderate amounts of surface disturbance that would have limited
influence on pollinator visitation rates. There has been no recent
herbicide
[[Page 37498]]
exposure within 300 meters of swale paintbrush patches within the last
15 years. Grazing during the species' active season within recent years
has been avoided, and the disturbance regime (fire return intervals,
inundation seasonality, grazing regime) combined with the recent
precipitation history, have maintained favorable canopy cover that
allows for swale paintbrush growth, establishment, and recent seedbank
replenishment within the core of the population area.
Although the Gray Ranch site is considered to have moderate to high
resiliency currently, the small area that the species is known to
occupy increases its risk of extirpation due to catastrophic events.
The swale paintbrush is at risk of impacts from cumulative impacts of
multiple stressors because it is an annual species with a provisional
seedbank viability of 2 years in the wild and frequent replenishment of
the seedbank is essential to population persistence. Replenishment of
the seedbank with viable seeds requires flower production, successful
pollination, and ovule maturation, all of which are impacted by
stochastic and catastrophic events such as: habitat loss and
fragmentation (Factor A), hydrological alteration (Factor A), altered
fire regimes (Factor A), effects from intensive grazing pressure
(Factor A), exotic plant invasion (Factor A), climate change impacts
(i.e., drought and increased cool season temperatures; Factor E), and
cumulative effects of multiple stressors. Additionally, future
collection risk (Factor B) may have compounding impacts on the species'
viability.
Drought is the primary threat to the species, as increased
frequency, intensity, and/or duration of drought can lead to decreased
swale paintbrush survival through direct (e.g., drought stress,
trampling, or herbivory) and indirect (e.g., increased grazing pressure
within the habitat, increased fire risk, delayed post-fire recovery)
mortality. Although grazing and fires help maintain canopy gaps,
grazing and/or fires during the growing season can result in decreased
swale paintbrush survival. Currently, grazing during the growing season
is generally avoided at the Gray Ranch site; however, this site is used
as a grass-banking pasture and may experience increased grazing
pressure during times of drought. Grazing during the active season can
result in trampling and mortality of the species. Growing season fires
result in swale paintbrush mortality and, depending on the duration and
intensity of the fire, prolonged recovery times for native vegetation.
Decreased recovery times leave soils vulnerable to evaporation,
erosion, nutrient loss, and invasive species establishment, all of
which lead to decreased swale paintbrush survival.
Taken altogether, the swale paintbrush has moderate to high
resiliency within 1 population and unknown resiliency across the other
12 historical sites. Although our analyses reflect our best assessment
of the current conditions of disturbance at or in the vicinity of our
estimates of historical site locations, the status of historically
collected sites at Cowan Ranch of the Animas Valley and in the eastern
Sierra Madre Occidental of Mexico is unknown. Rangewide, specimens were
collected from 1887-2021, with the most recent record from Mexico being
collected in 1985. Additionally, outside of the known extant New Mexico
site, there have been no reported estimates of abundance with the
exception of qualitative reports of ``occasional'' for the distribution
at the Keil 13388 site and ``few plants'' for Palmer 320 (Palmer 1906,
unpaginated; Keil 1978, unpaginated; Service 2023, p. 19). Thus, we
cannot reasonably conclude anything about the health or resiliency of
any site except for the Gray Ranch site. Accordingly, swale paintbrush
has limited to no redundancy, depending on the status of the species at
the historical sites. Even if swale paintbrush remains extant at sites
outside of Gray Ranch, the majority of sites are isolated and there is
limited potential for interpopulation rescue in the event of local
extirpations. Finally, the swale paintbrush has limited representation.
The Gray Ranch site exists at the northern periphery of the species'
range and contains only a small portion of the historical genetic and
ecological diversity of the species.
Future Condition
As part of the SSA, we also developed future condition scenarios to
capture the range of uncertainties regarding future threats and the
projected responses by the swale paintbrush. Our future condition
assessments considered the projected impacts of increased habitat
disturbance and climate changes across the swale paintbrush's
historical range. Specifically, we considered the upper and lower
bounds of plausible impacts of environmental variables related to
aridity during the growing and reproductive seasons and seed chilling
and cold stratification during the cool season. Because we determined
that the current condition of the swale paintbrush is consistent with
an endangered species (see Determination of Swale Paintbrush's Status,
below), we are not presenting the results of the future scenarios in
this proposed rule. Please refer to the SSA report (Service 2023,
chapter 5) for the full analysis of future scenarios.
Conservation Efforts and Regulatory Mechanisms
Below is a brief description of conservation measures and
regulatory mechanisms currently in place. Please see the SSA report for
a more detailed description (Service 2023, chapter 3).
Swale paintbrush is listed as an endangered species by the state of
New Mexico. In New Mexico, swale paintbrush exists on lands managed for
livestock production in an ecologically responsible manner by the
Animas Foundation (Brown 1998, p. 248). The Nature Conservancy (TNC),
the former landowners of the Gray Ranch site, retains a conservation
easement prohibiting development on the lands formerly known as the
Gray Ranch (TNC 2022, unpaginated). While the easement does not ensure
that range improvements will avoid adverse effects to swale paintbrush,
it ensures that the covered areas will remain open space.
The Animas Foundation is a member of the Malpai Borderlands Group,
a private, nonprofit organization that is dedicated to maintaining or
increasing rangeland health and the viability of traditional
livelihoods that maintain rangelands as open space (Malpai Borderlands
Group 1994, p. 2; Brown 1998, p. 249; Malpai Borderlands Group 2008,
pp. 1-2). Malpai Borderlands Group activities related to use,
maintenance, and enhancement of rangelands fall within the scope of a
habitat conservation plan (HCP) for all privately owned and State-trust
rangelands in the Malpai Borderlands of Southern Arizona and New
Mexico. Although the swale paintbrush is not a covered species under
this plan, the species may benefit from the plan's covered activities
and associated conservation measures (Service 2023, pp. 35-36, table 3-
1). These covered activities and associated conservation measures have
the potential to maintain and enhance swale paintbrush habitat by
restoring fire, minimizing erosion, and controlling invasive and exotic
plant species. The Animas Foundation's participation in the HCP, beyond
the grassbanking program, is unknown.
Finally, we have partnered with the Animas Foundation, the State of
New Mexico, and Albuquerque Bio Park to conduct and maintain ex situ
seed collections of swale paintbrush from the Gray Ranch site.
Currently, 77 maternal lines have been collected and retained in
offsite storage institutions for
[[Page 37499]]
germination studies, grow out, seed increase, and potential
reintroduction efforts.
Determination of Swale Paintbrush'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
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence.
Status Throughout All of Its Range
After evaluating threats to the species and assessing the
cumulative effect of the threats under the Act's section 4(a)(1)
factors, we found that the swale paintbrush's distribution has declined
from historical conditions. The swale paintbrush was documented from 13
sites historically: 2 sites in the Animas Valley of Hidalgo County, New
Mexico, and 11 sites in the eastern Sierra Madre Occidental of
Chihuahua and northern Durango in Mexico. Of the 13 historical sites,
only 1 site--the Gray Ranch site within the Animas Valley of Hidalgo
County, New Mexico--is currently known to be extant. Swale paintbrush
plants were last observed at the Gray Ranch site in September of 2021
with a minimum abundance of 6,000 plants distributed across 28 acres of
habitat. Of the 12 other historical sites, our analyses found that four
sites ranked as ``possibly extant,'' six sites ranked as ``possibly
extirpated,'' and two sites ranked as ``presumed extirpated.'' Although
potentially suitable habitat may remain at some of the historical
sites, the size and abundance (i.e., resiliency) of the historical
sites is unknown, and we do not have information that these sites are
resilient, stable, or able to contribute to the viability of the
species.
Although the Gray Ranch site is considered to have moderate to high
resiliency currently--based on the most recent abundance exceeding the
minimum viable population size and habitat conditions of the Animas
Valley being generally favorable--the small area that the species is
known to occupy increases its risk of extirpation due to catastrophic
events. The swale paintbrush is at risk from cumulative impacts of
multiple stressors because it is an annual species with a provisional
seedbank viability of 2 years and frequent replenishment of the
seedbank is essential to population persistence. Replenishing the
seedbank with viable seeds requires flower production, successful
pollination, and ovule maturation, all of which are impacted by these
stochastic and catastrophic events such as habitat loss and
fragmentation (Factor A), hydrological alteration (Factor A), altered
fire regimes (Factor A), effects from intensive grazing pressure
(Factor B), exotic plant invasion (Factor A), climate change impacts
(i.e., drought and increased cool season temperatures; Factor E), and
cumulative effects of multiple stressors. Additionally, future
collection risk (Factor B) may have compounding impacts on the species'
viability.
Drought is the primary threat to the species, as increased
frequency, intensity, and/or duration of drought can lead to decreased
swale paintbrush survival through direct and indirect mortality.
Although grazing and fires can help maintain canopy gaps, grazing and/
or fires during the growing season can result in decreased swale
paintbrush survival. Currently, grazing during the growing season is
avoided at the Gray Ranch site; however, this site is used as a grass-
banking pasture and may experience increased grazing pressure during
times of drought. Grazing during the active season can result in
trampling and mortality of the species. Growing season fires result in
swale paintbrush mortality and, depending on the duration and intensity
of the fire, prolonged recovery times for native vegetation. Decreased
recovery times leave soils vulnerable to evaporation, erosion, nutrient
loss, and invasive species establishment, all of which lead to
decreased swale paintbrush survival. Thus, decreased swale paintbrush
survival results in decreased seedbank replenishment and, by extension,
decreased seedbank viability, which increases the species' risk of
extinction.
Overall, swale paintbrush has limited viability due to its limited
resiliency, lack of redundancy, and limited representation at the
species level. The species currently occurs at a single site at the
northern periphery of its known historical range, and is vulnerable to
the impacts of catastrophic events. Given its limited distribution, the
species likely contains only a small portion of its historical genetic
and ecological diversity, and thus swale paintbrush has limited
capacity to adapt to long-term environmental changes (representation).
Even if swale paintbrush is extant at sites outside of the Gray Ranch,
the majority of these potentially extant historical sites are isolated,
and thus there is limited potential for interpopulation rescue in the
event of local extirpations.
Accordingly, we find that the swale paintbrush is presently in
danger of extinction throughout all of its range based on small
population size and the species' risk from a number of contemporary
threats. The risk of extinction is high due to a small population with
no known potential for recolonization from nearby sources (no
redundancy) and the species having limited viability within the
seedbank. We do not find that a threatened status is warranted for the
swale paintbrush because the species occupies a small geographic range
that is currently vulnerable to stressors with the potential for
catastrophic synergistic consequences. Thus, the species' limited
resiliency, lack of redundancy, and limited representation currently
place the species in danger of extinction, and these contemporary
threats are only projected to increase in frequency, severity, extent,
and/or duration into the future.
Thus, after assessing the best available information, we determine
that swale paintbrush is in danger of extinction throughout all of its
range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. We have determined that the swale paintbrush 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 swale paintbrush 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
[[Page 37500]]
Species Act's Definitions of ``Endangered Species'' and ``Threatened
Species'' (79 FR 37578; July 1, 2014) providing that if the Services
determine that a species is threatened throughout all of its range, the
Services will not analyze whether the species is endangered in a
significant portion of its range.
Determination of Status
Our review of the best available scientific and commercial
information indicates that the swale paintbrush meets the Act's
definition of an endangered species. Therefore, we propose to list the
swale paintbrush 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 cost of implementing recovery tasks. Revisions of the plan may
be done to address continuing or new threats to the species, as new
substantive information becomes available. The recovery outline, draft
recovery plan, final recovery plan, and any revisions will be available
on our website as they are completed (<a href="https://www.fws.gov/program/endangered-species">https://www.fws.gov/program/endangered-species</a>), or from our New Mexico 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 New Mexico would be
eligible for Federal funds to implement management actions that promote
the protection or recovery of the swale paintbrush. 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 swale paintbrush 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 of the Act is titled Interagency Cooperation and mandates
all Federal action agencies to use their existing authorities to
further the conservation purposes of the Act and to ensure that their
actions are not likely to jeopardize the continued existence of listed
species or adversely modify critical habitat. Regulations implementing
section 7 are codified at 50 CFR part 402.
Section 7(a)(2) states that each Federal action agency shall, in
consultation with the Secretary, ensure that any action they authorize,
fund, or carry out is not likely to jeopardize the continued existence
of a listed species or result in the destruction or adverse
modification of designated critical habitat. Each Federal agency shall
review its action at the earliest possible time to determine whether it
may affect listed species or critical habitat. If a determination is
made that the action may affect listed species or critical habitat,
formal consultation is required (50 CFR 402.14(a)), unless the Service
concurs in writing that the action is not likely to adversely affect
listed species or critical habitat. At the end of a formal
consultation, the Service issues a biological opinion, containing its
determination of whether the Federal action is likely to result in
jeopardy or adverse modification.
In contrast, section 7(a)(4) of the Act requires Federal agencies
to confer with the Service on any 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 critical
habitat proposed to be designated for such species. Although the
conference procedures are required only when an action is likely to
result in jeopardy or adverse modification, action agencies may
voluntarily confer with the Service on actions that may affect species
proposed for listing or critical habitat proposed to be designated. In
the event that the subject species is listed or the relevant critical
habitat is designated, a conference opinion may be adopted as a
biological opinion and serve as compliance with section 7(a)(2).
Examples of actions for the swale paintbrush that may be subject to
conference and consultation procedures under section 7 are land
management or other landscape-altering activities on Federal lands
administered by the Bureau of Land Management and the U.S. Forest
Service as well as actions on
[[Page 37501]]
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 swale
paintbrush could include direct participation in Federal permits or
funding for habitat maintenance or restoration treatments, emergency
response activities (such as for fire), range improvement projects, and
public infrastructure maintenance or development (such as
transportation infrastructure and border barricades). Given the
difference in triggers for conferencing and consultation, Federal
agencies should coordinate with the local Service Field Office (see FOR
FURTHER INFORMATION CONTACT) 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 commit, to attempt to commit, to solicit another
to commit or to cause to be committed any of the following with an
endangered plant: (1) import to or export from, the United States; (2)
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; (3) deliver, receive, carry, transport, or ship
in interstate or foreign commerce, by any means whatsoever and in the
course of a commercial activity; (4) or sell or offer for sale in
interstate or foreign commerce. Certain exceptions to these
prohibitions apply to employees or agents 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 for endangered plants are codified at 50 CFR 17.62.
With regard to endangered plants, a permit may be issued for scientific
purposes or for enhancing the propagation or survival of the species.
The statute also contains certain exemptions from the prohibitions,
which are found in sections 9 and 10 of the Act.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed, specific activities that will not result
in violation of section 9 of the Act. To the extent possible,
activities will be considered likely to result in violation will also
be identified in as specific a manner as possible. 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.
As discussed above, certain activities that are prohibited under
section 9 may be permitted under section 10 of the Act. In addition, to
the extent currently known, the following activities will not be
considered likely to result in violation of section 9 of the Act:
(1) Normal residential landscaping activities on non-Federal lands
that do not occur within known swale paintbrush habitat;
(2) Cool season livestock grazing (November to April) that is
conducted in a manner that does not result in degradation of swale
paintbrush habitat; and
(3) Collection occurring under a Federal permit for scientific or
recovery purposes.
This list is intended to be illustrative and not exhaustive;
additional activities that will not be considered likely to result in
violation of section 9 of the Act may be identified during coordination
with the local field office, and in some instances (e.g., with new
information), the Service may conclude that one or more of the
activities identified here will be considered likely to result in
violation of section 9.
To the extent currently known, the following is a list of examples
of activities that will be considered likely to result in violation of
section 9 of the Act in addition to what is already clear from the
descriptions of prohibitions found at 50 CFR 17.61:
(1) Removing, cutting, digging up, or damaging or destroying swale
paintbrush in knowing violation of any law or regulation of the State
of New Mexico or in the course of any violation of a State criminal
trespass law; and
(2) Unauthorized collecting, handling, possessing, selling,
delivering, carrying, or transporting of swale paintbrush in interstate
or foreign commerce, by any means whatsoever and in the course of a
commercial activity.
This list is intended to be illustrative and not exhaustive;
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, and in some instances (e.g., with new or
site-specific information), the Service may conclude that one of more
activities identified here will not be considered likely to result in
violation of section 9. Questions regarding whether specific activities
would constitute a violation of section 9 of the Act should be directed
to the New Mexico Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
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
[[Page 37502]]
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. Rather, designation requires that,
where a landowner requests Federal agency funding or authorization for
an action that may affect an area designated as critical habitat, the
Federal agency consult with the Service under section 7(a)(2) of the
Act. If the action may affect the listed species itself (such as for
occupied critical habitat), the Federal agency would have already been
required to consult with the Service even absent the designation
because of the requirement to ensure that the action is not likely to
jeopardize the continued existence of the species. Even if the Service
were to conclude after consultation that the proposed activity is
likely to 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 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.
We find that designating critical habitat for the swale paintbrush
is not prudent under the criterion set forth at 50 CFR 424.12(a)(1)(i).
Although no known illegal collection events of swale
[[Page 37503]]
paintbrush have been documented, other species within the genus
Castilleja are horticulturally desirable. Many Castilleja species are
readily available via online companies, and yellow-bracted species,
aesthetically similar to swale paintbrush, are marketed as rare. There
is a history of illegal collection occurring for other species at or
within the near vicinity of the Gray Ranch site. These collection
efforts involved the Sonoran Desert toad (New Mexico Department of Game
and Fish 2020, pp. 78-79), New Mexico ridge-nosed rattlesnake (Harris
Jr. and Simmons 1975, p. 6; Malpai Borderlands Group 2008, p. 60), and
Mexican hog-nosed snake (Medina 2021, pers. comm.). Swale paintbrush is
easier to detect and collect than these mobile, camouflaged species.
Additionally, swale paintbrush locality data are not published within
online databases due to the species' rarity and limited distribution.
Designation of critical habitat requires the publication of maps and a
narrative description of specific critical habitat areas in the Federal
Register. The degree of detail necessary to properly designate critical
habitat is considerably greater than the general descriptions of
location provided in this proposal to list the swale paintbrush as an
endangered species. We find that the publication of maps and
descriptions outlining the locations would further facilitate
unauthorized collection by providing currently unavailable precise
location information. Overall, given the small known extant range and
population size of this species, its annual duration and reliance on
frequent seedbank replenishment, and risks to its seedbank from
stochastic events and other ongoing threats to the species, effects
from collection (removal of plants and damage to habitat), illegal
collection would be deleterious to swale paintbrush. As such, we have
determined that the increased collection risk to the swale paintbrush
outweighs the benefits that would be afforded to the species from the
designation of critical habitat. Therefore, in accordance with 50 CFR
424.12(a)(1), we determine that designation of critical habitat is not
prudent for the swale paintbrush.
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.
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 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 contacted all Tribal entities with documented cultural
interests in Hidalgo County, New Mexico--the Hopi Tribe, the White
Mountain Apache Tribe, the Mescalero Apache Tribe, and the Fort Sill
Apache Tribe--to provide notice of our status review, solicit
information, and invite participation in the SSA process. We will
continue to work with Tribal entities during the development of a final
listing determination for the swale paintbrush.
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> under Docket No. FWS-R2-
ES-2022-0173 and upon request from the New Mexico 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 New
Mexico 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, in paragraph (h), amend the List of Endangered and
Threatened Plants by adding an entry for ``Castilleja ornata'' in
alphabetical order under FLOWERING PLANTS to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
[[Page 37504]]
----------------------------------------------------------------------------------------------------------------
Listing citations and
Scientific name Common name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
Flowering Plants
* * * * * * *
Castilleja ornata.............. swale paintbrush.. Wherever found.... E [Federal Register
citation when
published as a final
rule].
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-12132 Filed 6-7-23; 8:45 am]
BILLING CODE 4333-15-P
</pre></body>
</html>Indexed from Federal Register on June 8, 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.