Proposed Rule2024-05700
Endangered and Threatened Wildlife and Plants; Endangered Species Status for Bushy Whitlow-Wort and Designation of Critical Habitat
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
March 19, 2024
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), propose to list the bushy whitlow-wort (Paronychia congesta), a perennial herbaceous plant species from northwestern Jim Hogg County in south Texas, as an endangered species under the Endangered Species Act of 1973, as amended (Act). This determination also serves as our 12-month finding on a petition to list the bushy whitlow-wort. After a review of the best available scientific and commercial information, we find that listing the species is warranted. We also propose to designate critical habitat for the bushy whitlow-wort under the Act. In total, approximately 41.96 acres (16.98 hectares) in Jim Hogg County, Texas, fall within the boundaries of the proposed critical habitat designation. We announce the availability of a draft economic analysis (DEA) of the proposed designation of critical habitat for bushy whitlow-wort. If we finalize this rule as proposed, it would extend the Act's protections to the species and its designated critical habitat.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 54 (Tuesday, March 19, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 54 (Tuesday, March 19, 2024)]
[Proposed Rules]
[Pages 19526-19546]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-05700]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2023-0102; FXES1111090FEDR-245-FF09E21000]
RIN 1018-BF72
Endangered and Threatened Wildlife and Plants; Endangered Species
Status for Bushy Whitlow-Wort and Designation of Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list the bushy whitlow-wort (Paronychia congesta), a perennial
herbaceous plant species from northwestern Jim Hogg County in south
Texas, as an endangered species under the Endangered Species Act of
1973, as amended (Act). This determination also serves as our 12-month
finding on a petition to list the bushy whitlow-wort. After a review of
the best available scientific and commercial information, we find that
listing the species is warranted. We also propose to designate critical
habitat for the bushy whitlow-wort under the Act. In total,
approximately 41.96 acres (16.98 hectares) in Jim Hogg County, Texas,
fall within the boundaries of the proposed critical habitat
designation. We announce the availability of a draft economic analysis
(DEA) of the proposed designation of critical habitat for bushy
whitlow-wort. If we finalize this rule as proposed, it would extend the
Act's protections to the species and its designated critical habitat.
DATES: We will accept comments received or postmarked on or before May
20, 2024. 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 May 3, 2024.
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-2023-0102,
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
[[Page 19527]]
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-2023-0102, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on <a href="https://www.regulations.gov">https://www.regulations.gov</a>. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: Supporting materials, such as
the species status assessment report, are available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R2-ES-2023-0102. For the proposed
critical habitat designation, the coordinates or plot points or both
from which the maps are generated are included in the decision file for
this critical habitat designation and are available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R2-ES-2023-0102.
FOR FURTHER INFORMATION CONTACT: Chuck Ardizzone, Field Supervisor,
Texas Coastal Ecological Services Field Office, 17629 El Camino Real,
Suite 211, Houston, TX 77058; telephone 281-286-8282. Individuals in
the United States who are deaf, deafblind, hard of hearing, or have a
speech disability may dial 711 (TTY, TDD, or TeleBraille) to access
telecommunications relay services. Individuals outside the United
States should use the relay services offered within their country to
make international calls to the point-of-contact in the United States.
In compliance with the Providing Accountability Through Transparency
Act of 2023, please see Docket No. FWS-R2-ES-2023-0102 on <a href="https://www.regulations.gov">https://www.regulations.gov</a> for a document that summarizes this proposed rule.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act (16 U.S.C. 1531 et
seq.), 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 within the foreseeable future throughout
all or a significant portion of its range). If we determine that a
species warrants listing, we must list the species promptly and
designate the species' critical habitat to the maximum extent prudent
and determinable. We have determined that the bushy whitlow-wort meets
the Act's definition of an endangered species; therefore, we are
proposing to list it as such and proposing a designation of its
critical habitat. Both listing a species as an endangered or threatened
species and making a critical habitat designation 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 bushy whitlow-wort
as an endangered species under the Act, and we propose the designation
of critical habitat for the species.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined that the bushy whitlow-wort is
endangered due to threats from wind energy development (Factor A) and
the demographic and genetic consequences of low population redundancy
and small population sizes (Factor E).
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. Section 3(5)(A) of
the Act defines critical habitat as (i) the specific areas within the
geographical area occupied by the species, at the time it is listed, on
which are found those physical or biological features (I) essential to
the conservation of the species and (II) which may require special
management considerations or protections; and (ii) specific areas
outside the geographical area occupied by the species at the time it is
listed, upon a determination by the Secretary that such areas are
essential for the conservation of the species. Section 4(b)(2) of the
Act states that the Secretary must make the designation on the basis of
the best scientific data available and after taking into consideration
the economic impact, the impact on national security, and any other
relevant impacts of specifying any particular area as critical habitat.
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 nutrition, reproduction, or pollination;
(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; and
(e) Past and ongoing conservation measures for the species, its
habitat, or both.
(2) Threats and conservation actions affecting the species,
including:
(a) Factors that may be affecting the continued existence of the
species, which may include habitat modification or destruction,
overutilization, disease, predation, the inadequacy of existing
regulatory mechanisms, or other natural or manmade factors;
(b) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species; and
(c) Existing regulations or conservation actions that may be
addressing threats to this species.
(3) Additional information concerning the historical and current
status of this species.
(4) Specific information on:
(a) The amount and distribution of bushy whitlow-wort habitat;
(b) Any additional areas that should be included in the critical
habitat designation because they (i) are occupied at the time of
listing and contain the physical or biological features that are
essential to the conservation of the species and that may require
special management considerations or protection, or (ii) are unoccupied
at the time of listing and are essential for the conservation of the
species;
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change; and
(d) Whether occupied areas are adequate for the conservation of the
[[Page 19528]]
species. We seek this information to help us evaluate the potential to
include areas not occupied at the time of listing in the critical
habitat designation. Please provide specific information regarding
whether or not unoccupied areas would, with reasonable certainty,
contribute to the conservation of the species and contain at least one
physical or biological feature essential to the conservation of the
species. We also seek comments or information regarding whether areas
not occupied at the time of listing qualify as habitat for the species.
(5) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(6) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation, and the related benefits of including or excluding
specific areas.
(7) Information on the extent to which the description of probable
economic impacts in the draft economic analysis is a reasonable
estimate of the likely economic impacts and any additional information
regarding probable economic impacts that we should consider.
(8) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act. If you think we should exclude any
additional areas, please provide information supporting a benefit of
exclusion.
(9) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, do not provide substantial
information necessary to support a determination. Section 4(b)(1)(A) of
the Act directs that determinations as to whether any species is an
endangered or a threatened species must be made solely on the basis of
the best scientific and commercial data available, and section 4(b)(2)
of the Act directs that the Secretary shall designate critical habitat
on the basis of the best scientific 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 determinations may differ from this proposal because we
will consider all comments we receive during the comment period as well
as any information that may become available after this proposal. Based
on the new information we receive (and, if relevant, any comments on
that new information), we may conclude that the species is threatened
instead of endangered, or we may conclude that the species does not
warrant listing as either an endangered species or a threatened
species. For critical habitat, our final designation may not include
all areas proposed, may include some additional areas that meet the
definition of critical habitat, or may exclude some areas if we find
the benefits of exclusion outweigh the benefits of inclusion and
exclusion will not result in the extinction of the species. In our
final rule, we will clearly explain our rationale and the basis for our
final decisions, 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
We recognized the bushy whitlow-wort as a candidate for listing
under the Act in 1975 (40 FR 27824; July 1, 1975) and 1985 (50 FR
39526; September 27, 1985). The species was removed from the candidate
list twice, in 1980 (45 FR 82480; December 15, 1980) and 2006 (71 FR
53756; September 12, 2006), due to insufficient information about its
biological vulnerability and threats.
In 2007, we received a petition to list 475 species, including
bushy whitlow-wort, in the southwestern United States as endangered or
threatened under the Act. In 2009, in response to this petition, we
published a 90-day finding that the petitioned action may be warranted
(74 FR 66866; December 16, 2009). Therefore, we initiated review of the
status of the species to determine if the petitioned action is
warranted.
Peer Review
A species status assessment (SSA) team prepared an SSA report for
the bushy whitlow-wort. The SSA team was composed of Service
biologists, in consultation with other species experts. The SSA report
represents a compilation of the best scientific and commercial data
available concerning the status of the species, including the impacts
of past, present, and future factors (both negative and beneficial)
affecting the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review of
listing actions under the Act, we solicited independent scientific
review of the information contained in the bushy whitlow-wort SSA
report. We sent the SSA report to eight independent peer reviewers and
received no responses. We did, however, receive one review from Texas
Parks and Wildlife Department, which provided information on wind
turbines near bushy whitlow-wort populations. This information prompted
us to reevaluate the immediacy of the threat of wind development, as
further discussed below.
[[Page 19529]]
I. Proposed Listing Determination
Background
The SSA report (USFWS 2023, pp. 1-7) presents a thorough review of
the taxonomy, life history, and ecology of bushy whitlow-wort
(Paronychia congesta).
Bushy whitlow-wort is a perennial herbaceous plant in the carnation
family (Caryophyllaceae) that has only been found in a very small area
of northwestern Jim Hogg County in south Texas. The Texas Parks and
Wildlife Department's (TPWD's) Natural Diversity Database (TXNDD)
maintains geographic and population data of bushy whitlow-wort and
other plant and animal species of conservation concern in Texas. These
data are organized by standard geographical units for populations and
habitats called ``element occurrences'' (EOs). Only two small EOs of
bushy whitlow-wort have been found, and they are referred to as E.O. 1
and E.O. 2. The two EOs cover a total area of 41.96 acres (ac) (16.98
hectares (ha)) and are only 1.3 miles (mi) (2.1 kilometers (km)) apart;
when the disturbed areas of the Farm to Market (FM) 649 right-of-way
(ROW), unpaved ranch roads, and cleared pipeline ROWs are removed, the
occupied area is 41.96 acres (16.98 hectares). There are only 12
documented observations of the two EOs from 1963 through 2020. The
maximum numbers of individuals observed at the two EOs are about 2,000
individuals at E.O. 1 in 1987, and 1,904 individuals at E.O. 2 in 1994
(TXNDD 2017, unpaginated). At other times, surveyors recorded from 0 to
633 individuals (TXNDD 2017, unpaginated). This variation may have been
due, in part, to the withering of the diminutive plant's stems during
drought, making them undetectable; at most, the tufted mounds of
foliage stand less than 10 inches (in) (25 centimeters (cm)) tall.
The few recorded observations of bushy whitlow-wort have yielded
some, but limited, information about its life history. The species
flowers from spring to late summer, in response to rainfall, and
produces tiny, one-seeded fruits. We know nothing about the
pollinators, pollination biology, seed dispersal, seed dormancy, seed
germination, rates of recruitment, mortality, demographic trends,
reproductive age, or lifespan of bushy whitlow-wort. However, the woody
rootstocks reveal that the species is clearly perennial, and possibly
long-lived. Therefore, it is possible that, if bushy whitlow-wort does
have low or sporadic recruitment, this may be compensated by long
average lifespans.
The two documented populations of bushy whitlow-wort occupy nearly
barren, exposed, sloping outcrops of calcareous rock and/or indurated
caliche along the boundary of the Goliad and Catahoula geological
formations. ``Caliche'' is a word of Spanish origin that generally
refers to soils or minerals of whitish appearance. However, the term
has a specific geological meaning, referring to soil strata of calcium
carbonate that precipitated as water evaporated from the soil. In
contrast, limestone consists of calcium carbonate deposits that formed
in ocean sediments. Caliche strata often form in arid regions; those of
the Goliad formation formed in an arc parallel to the present Gulf of
Mexico (Baskin and Hulbert 2008, pp. 93, 96-97).
This geological transition zone from the Goliad to Catahoula
formations is known locally as the Bordas Escarpment. In the vicinity
of the bushy whitlow-wort populations, elevations drop about 151 feet
(ft) (46 meters (m)) from northeast to southwest; these slopes occur
along the uppermost reaches of the Arroyo Vele[ntilde]o watershed, a
seasonal watercourse that flows into the Rio Grande at Zapata, Texas.
The Goliad formation contains deposits of clay, sandstone, marl,
caliche, limestone, and conglomerate. The older Catahoula formation
contains deposits of clay, mudstone, volcanic tuff (i.e. rock formed
from volcanic ash), volcanic conglomerate, sandstone, and sand, with
some gypsum and calcareous concretions. In some places, outcrops of
Goliad caliche overlie deep beds of Catahoula tuff. These tuff deposits
are often calichified (Galloway et al. 1977, p. 37). Bushy whitlow-wort
is likely to be a geo-endemic species that is restricted to exposed
outcrops of Goliad formation caliche or calcareous rock; alternatively,
it may be even more highly restricted to exposed calcareous tuff that
occurs in specific places along the Goliad-Catahoula boundary. The
species is likely to be a geo-endemic that is uniquely adapted to the
soil or geological features that occur there.
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). Our analysis for
this decision applied the regulations that are currently in effect,
which include the 2019 revisions. However, we proposed further
revisions to these regulations on June 22, 2023 (88 FR 40764). In case
those revisions are finalized before we make a final status
determination for this species, we have also undertaken an analysis of
whether the decision would be different if we were to apply those
proposed revisions. We concluded that the decision would have been the
same if we had applied the proposed 2023 regulations. The analyses
under both the regulations currently in effect and the regulations
after incorporating the June 22, 2023, proposed revisions are included
in our decision file.
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.
[[Page 19530]]
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 bushy whitlow-wort's viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency is the ability of the species to withstand environmental and
demographic stochasticity (for example, wet or dry, warm or cold
years), redundancy is the ability of the species to withstand
catastrophic events (for example, droughts, large pollution events),
and representation is the ability of the species to adapt to both near-
term and long-term changes in its physical and biological environment
(for example, climate conditions, pathogens). In general, species
viability will increase with increases in resiliency, redundancy, and
representation (Smith et al. 2018, p. 306). Using these principles, we
identified the species' ecological requirements for survival and
reproduction at the individual, population, and species levels, and
described the beneficial and risk factors influencing the species'
viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time which we then used to inform our regulatory decision.
The following is a summary of the key results and conclusions from
the SSA report; the full SSA report can be found at Docket No. FWS-R2-
ES-2023-0102 on <a href="https://www.regulations.gov">https://www.regulations.gov</a> and at <a href="https://ecos.fws.gov/ecp/species/6441">https://ecos.fws.gov/ecp/species/6441</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.
Species Needs
Our knowledge of the requirements of bushy whitlow-wort individuals
is limited because the species has been observed on very few occasions
and in only two places. We know nothing about the breeding system,
pollinators, pollination biology, seed dispersal, seed dormancy, seed
germination, rates of recruitment, mortality, demographic trends,
reproductive age, or lifespan. Although we have no data on the
reproductive age or average lifespans of individuals, the woody
rootstocks are evidence that individuals are perennial and possibly
long-lived.
Individuals flower as early as April or as late as August in
response to rainfall; the timing and amount of rainfall are likely to
be important. Although we have no data to quantify these requirements,
the average annual precipitation in the area where bushy whitlow-wort
occurs is 23.8 in (60.4 cm), with the greatest amounts from May to July
and September to October (NCDC 2020, entire). The average daily maximum
temperature exceeds 95 degrees Fahrenheit ([deg]F) (35 degrees Celsius
([deg]C)) from June through August, and the average frost-free period
is from February 8 to December 11 (307 days) (Texas Almanac 2020, p.
2).
Bushy whitlow-wort is adapted to the hot, semi-arid, subtropical
climate of the Tamaulipan shrublands of south Texas, where the dominant
vegetation consists of dense, spiny shrubs reaching 4 to 6 ft (1.2 to
1.8 m) in height. However, within this shrubland ecosystem, the species
has only been found in nearly barren rocky outcrops, along slopes of
the Bordas Escarpment. These outcrops consist of calcified volcanic
tuff formed
[[Page 19531]]
along the exposed contact of the Goliad and Catahoula geological
formations. The sites are mostly barren because it is difficult for
roots to penetrate the calcified tuff, and the nearly white rocks
reflect and intensify sunlight. Since the species has not been found
elsewhere, it appears to require this type of substrate. Since not
found elsewhere, the species may be more specifically restricted to
outcrops of exposed calichified volcanic tuff in discrete locations
along the boundary of the Goliad and Catahoula geological formations.
The occupied sites occur in areas classified as Zapata soils and
Cuevitas-Randado association; these soil types, or soils with very
similar descriptions, occur in at least six other south Texas counties.
We developed a potential habitat model based on the distribution of
the geological, soil, and slope features because the bushy whitlow-wort
is likely a geo-endemic that is uniquely adapted to such features. The
model is based on only two population sites, and is a hypothesis based
on the very limited available data on the species' habitat and
distribution. This model indicates that a range of thousands to tens of
thousands of hectares of potential habitat exist in south Texas; the
largest clusters of potential habitat are in Webb, Jim Hogg, Zapata,
and Starr Counties. Based on available botanical surveys, we estimate
that less than 1 percent of this potential habitat has been surveyed by
botanists qualified to identify the species. Nevertheless, extensive
plant surveys have been conducted where caliche outcrops occur on
tracts of the Lower Rio Grande Valley National Wildlife Refuge in
southern Starr and southwestern Hidalgo Counties, and bushy whitlow-
wort has never been reported there.
Accordingly, while the model indicates a large potential range, the
fact that the species has been found in very limited portions of this
range, even when surveyed, indicates that the potential range is
smaller than the model would suggest. A reason for such limitation may
be that the calcification of volcanic tuff deposits is a phenomenon
that occurs sporadically along the boundary of the Goliad and Catahoula
formations, and if we assume that bushy whitlow-wort is more
specifically restricted to outcrops of calcareous tuff, its potential
habitats would be only a small portion of the estimated potential
habitat. This model could be improved if this species had been
documented at more sites or by using additional geographic layers that
explain the species' distribution. However, we are not aware of a data
layer that specifically delineates areas of exposed calcareous tuff or
any other geographic data layers that explain the distribution of bushy
whitlow-wort. While this potential habitat model helps us determine
where the species may be found and helps guide future surveys, the best
available information indicates that the species is unlikely to occur
throughout the areas predicted by the model.
In order to characterize the viability of bushy whitlow-wort, we
evaluated population needs for resiliency, redundancy, and
representation. For habitat and demographic factors influencing
resiliency, we assessed the habitat condition, the number of mature
individuals, and the demographic trends of the populations.
For habitat condition, we consider high-quality habitats to be
those that have undisturbed soil and geologic profiles and intact
native vegetation. Prior soil or geological disturbance and less than
20 percent invasive plant cover characterize populations with moderate
habitat quality, while recent or extensive soil or geological
disturbance and greater than 20 percent invasive plant cover is
considered characteristic of populations with low-quality habitat.
A bushy whitlow-wort population with high resiliency would be large
enough to have a high probability of surviving a prescribed period of
time. The minimum viable population (MVP) is defined as a population
that would have greater than 90 percent probability of persistence over
100 years (Mace and Lande 1991, p. 151). Using a method for estimating
plant MVPs (Pavlik 1996, p. 137) that incorporates our knowledge of
various life-history factors, we estimate that the MVP for bushy
whitlow-wort is approximately 1,300 reproductively mature individuals
(USFWS 2023, p. 20). Based on this information, we estimate that a high
condition population would have more than 1,300 individuals, a moderate
condition population would range from 650 to 1,300 individuals, and a
low condition population would have fewer than 650 individuals.
Stable or increasing demographic trends over time are indicative of
populations in good condition. This means that recruitment of new
individuals is at least as great as mortality. Population resiliency
also relies on sufficient numbers of individuals that are not too
closely related or too widely dispersed for effective pollination,
outcrossing, and seed production. Thus, high condition populations have
greater net recruitment than net mortality over a 10-year period, while
low resiliency populations have lower net recruitment than net
mortality. If such demographic trends are unknown, we considered this
to be indicative of moderate condition.
Determination of population sizes and numbers requires a method for
delineating populations. However, we currently have no data to estimate
the extent of gene flow for bushy whitlow-wort through pollination and
seed dispersal. We adopted a provisional minimum separation distance of
0.6 mi (1.0 km) to delineate populations of bushy whitlow-wort, based
on standards applied by TXNDD and NatureServe when the limits of gene
flow are unknown (NatureServe 2002, p. 26).
Redundancy indicates the number of populations and their
distribution over the species' range. Species that have more
populations distributed over a broader geographic range have a greater
chance of surviving catastrophic events. Greater redundancy increases
the probability that at least some populations will survive
catastrophic events, such as extended drought. These populations should
be distributed over the species' known range. For bushy whitlow-wort,
we know of only two populations located 1.3 mi (2.1 km) apart.
Representation refers to the breadth of genetic diversity and
environmental adaptation necessary to conserve long-term adaptive
capability. Populations must have enough genetic diversity to be able
to adapt and survive when threatened by new pathogens, competitors, or
changing environmental conditions. Furthermore, inbreeding increases
within populations that lack genetic diversity; if the species is
susceptible to inbreeding depression, this would lead to a loss of
individual fitness, reduced reproductive output, higher mortality, and
population decline. If the breeding system requires outcrossing, seed
production and recruitment would decline within populations that lack
genetic diversity. We do not know of any differentiation in
representation in the two bushy whitlow-wort populations.
Threats
The development of new oil and gas wells and infrastructure is a
source of threats to the known populations of bushy whitlow-wort that
is of low immediacy, but potentially high severity and large extent.
Wind energy development is a severe source of threats throughout the
species' range. These sources of threats can cause long-term impacts to
the natural landscape, including the loss of native vegetative cover
and soil compaction, and may include contamination of sites with
[[Page 19532]]
petroleum or chemical wastes used in drilling operations. In addition,
the proliferation of roads supporting this development accelerates the
spread of invasive plants, such as buffelgrass (Pennisetum ciliare).
These threats, their sources, and their effects to bushy whitlow-wort
are summarized below.
We also considered other threats to the species. Urban and
residential development and cattle grazing are not significant sources
of threats to the species. Climate changes will likely affect bushy
whitlow-wort in complex ways, but we cannot currently project the net
effect of positive and negative interactions.
Loss of Native Vegetative Cover and Soil Compaction
The development of new oil and gas wells, wind turbine sites, and
associated access roads, pipelines, and power lines requires the
complete removal of existing vegetation and the restructuring of the
soil profile with bulldozers, road graders, and steam rollers. Even
after well sites are abandoned, the compaction caused by the operation
of heavy machinery and tractor-trailers impedes plant growth for many
years. Plants do not establish or grow well in compacted soils because
their roots cannot penetrate far into compacted material. Soil
compaction also impedes the infiltration of water into the soil,
leading to increased runoff and the formation of gully erosion, which
may remove soil and uproot vegetation well beyond the original
construction sites.
Invasive Species
Nonnative, invasive grass species displace native plants by
competing for water, nutrients, and light, and their dense root systems
prevent germination of native plant seeds (Texas Invasives 2019,
unpaginated). Buffelgrass is a perennial bunchgrass introduced from
Africa in 1946 that has been widely planted in south Texas for
livestock forage. It is now one of the most abundant introduced grasses
in south Texas. Buffelgrass rapidly colonizes disturbed soils, such as
along roadways, and the wind-borne seeds allow it to spread further
into intact habitats; it often creates homogeneous monocultures by out-
competing native plants for essential resources (Best 2009, p. 310;
Lyons et al. 2013, p. 8), and it produces phytotoxins in the soil that
inhibit the growth of neighboring native plants (Vo 2013, unpaginated).
Both EO 1 and EO 2 are close to FM 649 and are vulnerable to
buffelgrass colonization. EO 2 is bisected by highway FM 649, which
converted about 1.6 ha (4.0 ac) of habitat to pavement and graded
right-of-way. In 2014, no bushy whitlow-wort individuals were observed
during a survey of the public ROW of FM 649 where it transects EO 2
(Strong and Williamson 2015, p. 126; TXNDD 2017, unpaginated). However,
this ROW had recently been graded and was partially colonized by
buffelgrass. Bushy whitlow-wort may have been eradicated from the ROW
by disturbance and buffelgrass competition.
Oil and Gas Development
Bushy whitlow-wort habitat occurs within areas of extensive oil and
gas exploration and extraction. An area of intensive energy development
in northern Zapata County is about 13 mi (21 km) west of the bushy
whitlow-wort populations. Occupied and potential bushy whitlow-wort
habitats are also about 18.6-31.0 mi (30-50 km) southeast of the Eagle
Ford shale area of oil and natural gas production. Large reserves of
oil and natural gas remain in the Eagle Ford shale, and fluctuation in
petroleum markets may lead to new well production there, and perhaps
also in the vicinity of bushy whitlow-wort habitats. We cannot project
the likelihood of if or when this will occur. Petroleum and gas
development in the Eagle Ford shale is not likely to have a direct
effect on bushy whitlow-wort habitats, since they are physically
separated, but renewed development of petroleum reserves that may
underlie these habitats could cause their destruction and degradation.
Oil and gas well development includes road building and ROW
maintenance, and it increases the risk of contamination of these
habitats. As a result, there are long-term impacts to the natural
landscape, including the loss of native vegetative cover and soil
compaction, as well as the potential contamination of sites with
petroleum or chemical wastes used in drilling operations. In addition,
the proliferation of roads supporting this development accelerates the
spread of invasive plants, such as buffelgrass.
Contaminants
Petroleum or chemical wastes used in drilling operations can
contaminate sites either through direct impacts to existing plants, or
indirectly through soil contamination. Soil contamination may lead to
absorption of toxic materials, which may result in death of individual
plants or may impact a plant's uptake of nutrients that are necessary
for its growth and overall health.
Wind Energy Development
The occupied and potential habitats of bushy whitlow-wort are
closely aligned with areas of the highest average wind speed in South
Texas; consequently, they have high potential for wind energy
development. Wind power generation continues to grow in south Texas,
including major new proposed wind farms in Jim Hogg and Zapata Counties
(Contreras 2019, entire; Bordas Renewable Energy 2020, unpaginated;
Corso 2020, entire). Wind farm development entails land clearing for
arrays of wind turbines, access roads, and power lines. Since 2015,
more than 1,000 wind turbines (Hoen et al. 2018, entire) have been
constructed in the seven-county area of south Texas where we identified
potential habitat, and new construction continues at a very rapid pace.
Twenty-one turbines are located from 0.5 to 2.6 mi (0.8 to 4.2 km) from
the known EOs of bushy whitlow-wort, and about 20 new turbines have
been proposed, but not yet permitted, within this immediate area. In
other regions of the United States, only about 19 percent of proposed
wind projects are completed (DOE 2021, p. 3); nevertheless, Texas has
installed more wind capacity than any other U.S. State in recent years
(DOE 2022, p. 6), and the Electric Reliability Council of Texas, Inc.
(ERCOT) projects total wind generation capacity additions ranging from
13,700 megawatts (MW) to 27,100 MW, the equivalent of 4,500 to 9,000
turbines, over the next 15 years in their long-term system assessment
(ERCOT 2022, p. 7). The development of new wind farms and the
concomitant land disturbance is an immediate threat to the known
populations of bushy whitlow-wort, and a single development project
could easily destroy a large portion of the species' known resources.
Grazing and Other Agricultural Uses
The two known occupied habitats of bushy whitlow-wort have been
used for livestock grazing for many years. Given that cattle are not
attracted to the barren rock outcrops where the species occurs, the
impact of trampling should be negligible, and we conclude that cattle
grazing is not a significant threat to the species' survival. The very
shallow soils of occupied populations are underlaid by indurated
caliche along steep slopes and are not suitable for row crops or other
agricultural uses. Thus, we do not anticipate habitat losses due to a
change in agricultural use.
[[Page 19533]]
Urban Development
One of the two EOs was bisected by highway FM 649 in 1954; we
estimate that the highway construction and ROW destroyed about 4.03 ac
(1.63 ha) of habitat. We are not aware of planned highway construction
that would affect the occupied habitats. Due to the low population
density in rural Jim Hogg County and the distance to population
centers, currently there are no projected habitat losses to urban and
residential development.
Climate Changes
To evaluate how the climate of bushy whitlow-wort habitats may
change, we used the National Climate Change Viewer (U.S. Geological
Survey 2020, unpaginated) to compare past and projected future climate
parameters of annual mean maximum temperature, annual mean
precipitation, and annual evaporative deficit for Jim Hogg County,
Texas. The magnitude of projected changes varies widely, depending on
which scenario of future greenhouse gas emissions is used.
We do not know how these projected climate changes, forecast by the
range of models and emissions scenarios, will affect the interactions
of bushy whitlow-wort with its habitat and associated plant and animal
community. Higher temperatures and increasing evaporative deficit could
reduce the species' growth, reproduction, and survival. Alternatively,
these changes could increase the areas of nearly barren, exposed
outcrops, thus increasing the amount of available habitat. Warmer
winters might extend the growing season to the species' benefit.
Climate changes might affect bushy whitlow-wort differently from
species it competes with, such as the introduced, invasive buffelgrass.
Thus, although it is likely that the projected climate changes will
affect the viability of bushy whitlow-wort, we cannot confidently
project what the net result of beneficial and detrimental effects will
be.
Current Conditions
To assess resiliency, we considered habitat quality, the number of
mature individuals, and the demographic trends of the two populations.
Habitats have been moderately disturbed in the past by gravel roads and
petroleum infrastructure (EO 1) and a highway ROW (EO 2) but are
otherwise intact. Additionally, habitats have been minimally disturbed
by invasive plant cover due to their isolated location and rocky
nature. Given this level of disturbance and minimal invasive plant
cover, we consider current habitat to be in the moderate-quality
condition category.
Surveyors estimated about 2,000 individuals at EO 1 in 1987 and
extrapolated 1,904 individuals at EO 2 in 1994. The only recent census,
in 2014, detected 633 individuals in a very small portion of one EO,
representing less than 5 percent of the total area of the EOs. Although
we do not know the current size of either population, since the
habitats are relatively intact, the best available information
indicates that both exceed the MVP level of 1,300 individuals,
resulting in a high-condition category for this demographic factor
(USFWS 2023, p. 31).
We have no information on demographic trends. However, given
continued presumed presence of the bushy whitlow-wort at the two EOs,
we assumed that net recruitment is approximately equal to net mortality
resulting in a moderate-condition category for this demographic factor
(USFWS 2023, p. 31). Combining the current conditions of these habitat
and demographic factors (i.e. moderate condition for habitat quality,
high condition for number of mature individuals, and moderate condition
for demographic trends) we conclude that bushy whitlow-wort has two
moderately resilient populations.
Bushy whitlow-wort has low redundancy with only two known
moderately resilient populations located 1.3 mi (2.1 km) apart. The
degree of representation remains unknown, and we do not know of any
differentiation in representation in the two populations. Additionally,
small, isolated populations are more vulnerable to catastrophic losses
caused by random fluctuations in recruitment (demographic
stochasticity) or variations in rainfall or other environmental factors
(environmental stochasticity) (USFWS 2016, p. 20). Small,
reproductively isolated populations are susceptible to the loss of
genetic diversity, to genetic drift, and to inbreeding (Barrett and
Kohn 1991, pp. 3-30). There may not have been any recent gene flow
between the two known populations of bushy whitlow-wort, and they may
already suffer from genetic bottlenecks, genetic drift, inbreeding, and
loss of allelic diversity (USFWS 2023, p. 25).
Future Scenarios
As part of the SSA, we also developed three future scenarios to
capture the range of uncertainties regarding future threats and the
projected responses by bushy whitlow-wort. Our scenarios assumed energy
development and climate change would have either limited or no impacts
on the species or extensive adverse impacts in the future. Because we
determined that the current condition of the bushy whitlow-wort is
consistent with an endangered species (see Determination of Bushy
Whitlow-Wort's Status, below), we are not presenting the results of the
future scenarios in this proposed rule. Please refer to the SSA report
(USFWS 2023, pp. 32-35) for the full analysis of future scenarios.
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have
analyzed the cumulative effects of identified threats and conservation
actions on the species. To assess the current and future condition of
the species, we evaluate the effects of all the relevant factors that
may be influencing the species, including threats and conservation
efforts. Because the SSA framework considers not just the presence of
the factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative effects analysis.
Determination of Bushy Whitlow-Wort'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 there are only two known EOs of bushy whitlow-
wort with a combined occupied area of
[[Page 19534]]
41.96 ac (16.98 ha) (the area we consider occupied does not include the
FM 649 ROW, the beds of unpaved ranch roads, or cleared pipeline ROWs).
With only two moderately resilient populations and the small area of
occurrence, the species is extremely vulnerable to both natural and
anthropogenic impacts. Since the two EOs are only 1.3 mi (2.1 km)
apart, this vulnerability is exacerbated by their close proximity.
Bushy whitlow-wort currently has low population redundancy, as only
two EOs of bushy whitlow-wort have been documented. The demographic and
genetic consequences of small population sizes (Factor E) put the
species at a higher risk of extinction due to the threats described
above. A single event, such as prolonged drought, or a single
development project could easily destroy a large portion of the
species' known remaining resources. The close proximity of the two EOs
increases this vulnerability.
In particular, the occupied habitats of bushy whitlow-wort are
closely aligned with areas of high potential for wind energy
development (Factor A), and major proposed wind farms in Jim Hogg and
Zapata Counties will entail land clearing for arrays of wind turbines,
access roads, and power lines, thereby reducing available habitat for
bushy whitlow-wort. The development of new wind farms and the
concomitant clearing of habitat is an immediate, severe threat to the
known populations of bushy whitlow-wort and potential habitat
throughout the species' range. We used the best scientific and
commercial data available to analyze the bushy whitlow-wort's current
conditions. Based on this information we have concluded that the
species is in danger of extinction throughout all of its range due to
the severity, extent, and immediacy of threats currently impacting the
species. We find that a threatened species status is not appropriate
because bushy whitlow-wort has an extremely limited geographic range,
the species' populations are very small, those populations are
currently at risk of losing habitat from ongoing wind energy
development. The threats to the species are currently ongoing and
occurring across the entire range of the species. Due to the limited
number of populations and the immediate threats to those populations,
the species is in danger of extinction currently. Thus, after assessing
the best available information, we determine that the bushy whitlow-
wort is in danger of extinction throughout all of its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
within the foreseeable future throughout all or a significant portion
of its range. We have determined that the bushy whitlow-wort 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 bushy whitlow-wort 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), which vacated the provision of the Final
Policy on Interpretation of the Phrase ``Significant Portion of Its
Range'' in the Endangered Species Act's Definitions of ``Endangered
Species'' and ``Threatened Species'' (79 FR 37578; July 1, 2014)
providing that if the Service determines that a species is threatened
throughout all of its range, the Service will not analyze whether the
species is endangered in a significant portion of its range.
Determination of Status
Our review of the best available scientific and commercial
information indicates that the bushy whitlow-wort meets the Act's
definition of an endangered species. Therefore, we propose to list the
bushy whitlow-wort 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 Texas Coastal Ecological Services
Field Office (see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
[[Page 19535]]
If this species is listed, funding for recovery actions will be
available from a variety of sources, including Federal budgets, State
programs, and cost-share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, the State of Texas would be eligible
for Federal funds to implement management actions that promote the
protection or recovery of the bushy whitlow-wort. 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 bushy whitlow-wort 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) of the
Act.
Examples of discretionary actions for the bushy whitlow-wort 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 Texas Department of Transportation (TxDOT),
including maintenance of the ROW of Highway FM 649 or other highway
maintenance activities, within the vicinity of the known bushy whitlow-
wort populations, as well as actions on State, Tribal, local, or
private lands within the vicinity of the known bushy whitlow-wort
populations 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. Federal agencies should coordinate with the
local Service Field Office (see FOR FURTHER INFORMATION CONTACT) with
any specific questions on section 7 consultation and conference
requirements.
II. Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that each Federal action agency 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
[[Page 19536]]
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 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.
Physical or Biological Features Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species, and
which may require special management considerations or protection. The
regulations at 50 CFR 424.02 define ``physical or biological features
essential to the conservation of the species'' as the features that
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, prey,
vegetation, symbiotic species, or other features. A feature may be a
single habitat characteristic or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity. For example,
physical features essential to the conservation of the species might
include gravel of a particular size required for spawning, alkaline
soil for seed germination, protective cover for migration, or
susceptibility to flooding or fire that maintains necessary early-
successional habitat characteristics. Biological features might include
prey species, forage grasses, specific kinds or ages of trees for
roosting or nesting, symbiotic fungi, or absence of a particular level
of nonnative species consistent with conservation needs of the listed
species. The features may also be combinations of habitat
characteristics and may encompass the relationship between
characteristics or the necessary amount of a characteristic essential
to support the life history of the species.
In considering whether features are essential to the conservation
of the species, we may consider an appropriate quality, quantity, and
spatial and temporal arrangement of habitat characteristics in the
context of the life-history needs, condition, and status of the
species. These characteristics include, but are not limited to, space
for individual and population growth and for normal behavior; food,
water, air, light, minerals, or other nutritional or physiological
requirements; cover or shelter; sites for breeding, reproduction, or
rearing (or development) of offspring; and habitats that are protected
from disturbance.
Surface Geology
The two documented populations of bushy whitlow-wort occupy exposed
slopes of calcareous rock and/or indurated caliche along the boundary
of the Goliad geological formation and the Catahoula and Frio Clay
(undivided) geological formation (Turner 1983, p. 5;
[[Page 19537]]
Damude and Poole 1990, pp. 9, 10, 12; Poole et al. 2007, p. 333).
Soils
Soils in the vicinity of the known bushy whitlow-wort populations
are classified as Zapata soils (Soil Conservation Service 1974, p. 17;
Natural Resources Conservation Service (NRCS) 2020, unpaginated). The
representative Zapata soil profile consists of grayish-brown fine sandy
loam at and near the surface (0 to 2 in (0 to 5 cm) deep); brown sandy
clay loam below that (2 to 8 in (5 to 20 cm) deep); and indurated,
laminar, pinkish-white caliche below that (more than 8 in (20 cm)
deep). The occupied sites are also very near or overlay areas of
Cuevitas-Randado Association soils. A representative profile has brown
and reddish-brown fine sandy loam near the surface (from 1 to 9 in (2.5
to 23 cm) deep), and indurated, laminar, white caliche below that (more
than 9 in (23 cm) deep). Clearly, Zapata and Cuevitas-Randado
Association soils are very similar. Although the immediate area of
occupied sites has very little soil, such areas of exposed rock are
included within these soil map unit polygons.
Plant Community
The plant community associated with bushy whitlow-wort is an open
shrubland with the tallest plants reaching 4 to 6 ft (1.2 to 1.8 m) in
height (Damude and Poole 1990, pp. 12, 13). Within this shrubland
community, bushy whitlow-wort occurs primarily in nearly barren
openings on exposed limestone, caliche, or calcareous tuff, where the
nearly white rocks reflect and intensify sunlight.
Nonnative, invasive grass species displace native plants by
competing for water, nutrients, and light, and their dense root systems
prevent germination of native plant seeds (Texas Invasives 2019,
unpaginated). Buffelgrass is widely planted in south Texas for
livestock forage and frequently displaces native grasses and herbaceous
plants (Best 2009, pp. 310-311).
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential to
the conservation of bushy whitlow-wort from studies of the species'
habitat, ecology, and life history as described below. Additional
information can be found in the SSA report (USFWS 2023, entire;
available on <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No. FWS-R2-ES-
2023-0102). We have determined that the following physical or
biological features are essential to the conservation of bushy whitlow-
wort:
(1) Exposed outcrops of calcified tuff,
(2) Undisturbed or minimally disturbed soil horizons, and
(3) Openings within shrubland communities that do not contain or
have low levels of buffelgrass.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection.
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: Nonnative, invasive grass; ROW construction and
maintenance from energy development; and road and utility construction.
Habitats have been moderately disturbed in the past by gravel roads,
petroleum infrastructure, and a highway ROW, but they are otherwise
intact. Management activities that could ameliorate these threats
include, but are not limited to: Nonnative, invasive grass control;
protection from activities that disturb the soil; and propagation and
reintroduction of plants in restorable areas. These management
activities would protect the physical or biological features for the
species by reducing soil disturbance, limiting the impacts of
competition with buffelgrass, and potentially increasing population
sizes.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat. We are not currently proposing to
designate any areas outside the geographical area occupied by the
species because we have not identified any unoccupied areas that meet
the Act's definition of critical habitat. Bushy whitlow-wort needs
additional populations to reduce the likelihood of extinction, but
there are no public lands in the area and we have limited access to
privately owned lands and little information regarding lands that would
be good candidates for introductions in the species' range. Therefore,
we are not able to identify additional locations that contain at least
one of the physical or biological features essential to the
conservation of the species and that may have a reasonable certainty of
contributing to conservation at this time.
In summary, for areas within the geographical area occupied by the
species at the time of listing, we delineated critical habitat unit
boundaries using the E.O. boundaries established by the TXNDD; however,
we did not include areas of disturbed soils (the ROW of FM 649,
roadbeds of unpaved ranch roads, and cleared pipeline ROWs) that no
longer contain the physical and biological features and that, due to
repeated disturbance, are unlikely to be restored in the future.
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands lack
physical or biological features necessary for bushy whitlow-wort. The
scale of the maps we prepared under the parameters for publication
within the Code of Federal Regulations may not reflect the exclusion of
such developed lands. Any such lands inadvertently left inside critical
habitat boundaries shown on the maps of this proposed rule have been
excluded by text in the proposed rule and are not proposed for
designation as critical habitat. Therefore, if the critical habitat is
finalized as proposed, a Federal action involving these lands would not
trigger section 7 consultation with respect to critical habitat and the
requirement of no adverse modification unless the specific action would
affect the physical or biological features in the adjacent critical
habitat.
We propose to designate as critical habitat lands that we have
determined are occupied at the time of listing (i.e., currently
occupied) and that contain one or more of the physical or biological
features that are essential to support the life-history processes of
the species.
Units are proposed for designation based on one or more of the
physical or biological features being present to support bushy whitlow-
wort's life-history processes. Both proposed units contain all of the
identified physical or biological features and support multiple life-
history processes.
The proposed critical habitat designation is defined by the map, as
modified by any accompanying regulatory text, presented at the end of
[[Page 19538]]
this document under Proposed Regulation Promulgation. We include more
detailed information on the boundaries of the critical habitat
designation in the preamble of this document. We will make the
coordinates or plot points or both on which each map is based available
to the public on <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R2-ES-
2023-0102.
Proposed Critical Habitat Designation
We are proposing two units as critical habitat for bushy whitlow-
wort. The critical habitat areas we describe below constitute our
current best assessment of areas that meet the definition of critical
habitat for bushy whitlow-wort. The two areas we propose as critical
habitat are TXNDD EOs in Jim Hogg County. The table below shows the
proposed critical habitat units and the approximate area of each unit.
All units are occupied.
Table of Proposed Critical Habitat Units for Bushy Whitlow-Wort
[Area estimates reflect all land within critical habitat unit boundaries.]
----------------------------------------------------------------------------------------------------------------
Size of unit in acres
Critical habitat unit Land ownership by type (hectares) Occupied?
----------------------------------------------------------------------------------------------------------------
1. EO 1.............................. Private................ 35.38 (14.32) Yes.
2. EO 2.............................. Private................ 6.57 (2.66) Yes.
-------------------------
Total............................ ....................... 41.96 (16.98) .......................
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
We present brief descriptions of the two proposed units, and
reasons why they meet the definition of critical habitat for bushy
whitlow-wort, below.
Unit 1: E.O. 1
Unit 1 consists of 35.38 ac (14.32 ha) in a geographic cluster of
three polygons on private land within the boundaries of E.O. 1 in
northwest Jim Hogg County. In this proposed unit, we do not include the
FM 649 ROW or unvegetated roadbeds that are frequently driven on or are
maintained by road grading, as these areas no longer contain the
essential physical and biological features and they are unlikely to be
restored in the future. Unit 1 was delineated through observation of
recent orthographically corrected aerial photographs (USDA-FPAC-BC-APFO
Aerial Photography Field Office 2018, unpaginated). The unit is
occupied by the species and contains all of the physical or biological
features essential to the conservation of bushy whitlow-wort. Areas
adjacent to this unit contain a public ROW that is affected by
invasive, nonnative buffelgrass. Therefore, special management may be
required to reduce invasion of nonnative species.
Unit 2: E.O. 2
Unit 2 consists of 6.57 ac (2.66 ha) in a geographic cluster of 10
polygons on private land within the boundaries of E.O. 2 in northwest
Jim Hogg County. In this proposed unit, we do not include unvegetated
roadbeds that are frequently driven on or are maintained by road
grading, as these areas no longer contain the essential physical and
biological features and they are unlikely to be restored in the future.
Unit 2 was delineated through observation of recent orthographically
corrected aerial photographs (USDA-FPAC-BC-APFO Aerial Photography
Field Office 2018, unpaginated). The unit is occupied by the species
and contains all of the physical or biological features essential to
the conservation of bushy whitlow-wort. This unit has been moderately
disturbed in the past by gravel roads and petroleum infrastructure.
Therefore, special management may be required to reduce invasion of
nonnative species.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they authorize, fund, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
We published a final rule revising the definition of destruction or
adverse modification on August 27, 2019 (84 FR 44976). Destruction or
adverse modification means a direct or indirect alteration that
appreciably diminishes the value of critical habitat as a whole for the
conservation of a listed species.
Compliance with the requirements of section 7(a)(2) of the Act is
documented through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during formal consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood
of jeopardizing the continued existence of the listed species and/or
avoid the likelihood of destroying or adversely modifying critical
habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 set forth requirements for Federal
agencies to reinitiate consultation if any of the following four
conditions occur: (1) the amount or extent of taking specified in the
incidental take statement is exceeded; (2) new information reveals
effects of the action that may affect
[[Page 19539]]
listed species or critical habitat in a manner or to an extent not
previously considered; (3) the identified action is subsequently
modified in a manner that causes an effect to the listed species or
critical habitat that was not considered in the biological opinion or
written concurrence; or (4) a new species is listed or critical habitat
designated that may be affected by the identified action. The
reinitiation requirement applies only to actions that remain subject to
some discretionary Federal involvement or control. As provided in 50
CFR 402.16, the requirement to reinitiate consultations for new species
listings or critical habitat designation does not apply to certain
agency actions (e.g., land management plans issued by the Bureau of
Land Management) in certain circumstances.
Destruction or Adverse Modification of Critical Habitat
The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat for the
conservation of the listed species. As discussed above, the role of
critical habitat is to support physical or biological features
essential to the conservation of a listed species and provide for the
conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate section
7(a)(2) of the Act by destroying or adversely modifying such habitat,
or that may be affected by such designation.
Activities that we may, during a consultation under section 7(a)(2)
of the Act, consider likely to destroy or adversely modify critical
habitat include, but are not limited to, actions that would degrade or
destroy native plant communities. Such activities could include, but
are not limited to, the construction of: roadways; wind, oil, and gas
production sites; powerlines; pipelines; or other infrastructure
developments. These activities could disturb the soil or could
introduce or increase buffelgrass and other invasive grasses in the
vicinity of bushy whitlow-wort individuals.
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that the Secretary shall not designate as critical habitat any
lands or other geographical areas owned or controlled by the Department
of Defense (DoD), or designated for its use, that are subject to an
integrated natural resources management plan (INRMP) prepared under
section 101 of the Sikes Act Improvement Act of 1997 (16 U.S.C. 670a),
if the Secretary determines in writing that such plan provides a
benefit to the species for which critical habitat is proposed for
designation. No DoD lands with a completed INRMP are within the
proposed critical habitat designation.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from designated critical habitat based on
economic impacts, impacts on national security, or any other relevant
impacts. Exclusion decisions are governed by the regulations at 50 CFR
424.19 and the Policy Regarding Implementation of Section 4(b)(2) of
the Endangered Species Act (hereafter, the ``2016 Policy''; 81 FR 7226,
February 11, 2016), both of which were developed jointly with the
National Marine Fisheries Service (NMFS). We also refer to a 2008
Department of the Interior Solicitor's opinion entitled, ``The
Secretary's Authority to Exclude Areas from a Critical Habitat
Designation under Section 4(b)(2) of the Endangered Species Act'' (M-
37016).
In considering whether to exclude a particular area from the
designation, we identify the benefits of including the area in the
designation, identify the benefits of excluding the area from the
designation, and evaluate whether the benefits of exclusion outweigh
the benefits of inclusion. If the analysis indicates that the benefits
of exclusion outweigh the benefits of inclusion, the Secretary may
exercise discretion to exclude the area only if such exclusion would
not result in the extinction of the species. In making the
determination to exclude a particular area, the statute on its face, as
well as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor. In our final rules, we explain any decision to exclude
areas, as well as all decisions not to exclude, to make clear the
rational basis for our decision. We describe below the process that we
use for taking into consideration each category of impacts and any
initial analyses of the relevant impacts.
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate the impacts that a specific critical habitat
designation may have on restricting or modifying specific land uses or
activities for the benefit of the species and its habitat within the
areas proposed. We then identify which conservation efforts may be the
result of the species being listed under the Act versus those
attributed solely to the designation of critical habitat for this
particular species. The probable economic impact of a proposed critical
habitat designation is analyzed by comparing scenarios both ``with
critical habitat'' and ``without critical habitat.''
The ``without critical habitat'' scenario represents the baseline
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, land managers, or other resource
users potentially affected by the designation of critical habitat
(e.g., under the Federal listing as well as other Federal, State, and
local regulations). Therefore, the baseline represents the costs of all
efforts attributable to the listing of the species under the Act (i.e.,
conservation of the species and its habitat incurred regardless of
whether critical habitat is designated). The ``with critical habitat''
scenario describes the incremental impacts associated specifically with
the designation of critical habitat for the species. The incremental
conservation efforts and associated impacts would not be expected
without the designation of critical habitat for the species. In other
words, the incremental costs are those attributable solely to the
designation of critical habitat, above and beyond the baseline costs.
These are the costs we use when evaluating the benefits of inclusion
and exclusion of particular areas from the final designation of
critical habitat should we choose to conduct a discretionary 4(b)(2)
exclusion analysis.
Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to
assess the costs and benefits of available regulatory alternatives in
quantitative (to the extent feasible) and qualitative terms. Consistent
with the E.O.
[[Page 19540]]
regulatory analysis requirements, our effects analysis under the Act
may take into consideration impacts to both directly and indirectly
affected entities, where practicable and reasonable. If sufficient data
are available, we assess to the extent practicable the probable impacts
to both directly and indirectly affected entities. Section 3(f) of E.O.
12866, as amended by E.O. 14094, identifies four criteria when a
regulation is considered a ``significant regulatory action,'' and
requires additional analysis, review, and approval if met. The
criterion relevant here is whether the designation of critical habitat
may have an economic effect of $200 million or more in any given year
(section 3(f)(1)). Therefore, our consideration of economic impacts
uses a screening analysis to assess whether a designation of critical
habitat for bushy whitlow-wort is likely to exceed the economically
significant threshold.
For this particular designation, we developed an incremental
effects memorandum (IEM) considering the probable incremental economic
impacts that may result from this proposed designation of critical
habitat. The information contained in our IEM was then used to develop
a screening analysis of the probable effects of the designation of
critical habitat for the bushy whitlow-wort (Industrial Economics, Inc.
(IEc) 2023, entire.). We began by conducting a screening analysis of
the proposed designation of critical habitat in order to focus our
analysis on the key factors that are likely to result in incremental
economic impacts. The purpose of the screening analysis is to filter
out particular geographical areas of critical habitat that are already
subject to such protections and are, therefore, unlikely to incur
incremental economic impacts. In particular, the screening analysis
considers baseline costs (i.e., absent critical habitat designation)
and includes any probable incremental economic impacts where land and
water use may already be subject to conservation plans, land management
plans, best management practices, or regulations that protect the
habitat area as a result of the Federal listing status of the species.
Ultimately, the screening analysis allows us to focus our analysis
on evaluating the specific areas or sectors that may incur probable
incremental economic impacts as a result of the designation. The
presence of the listed species in occupied areas of critical habitat
means that any destruction or adverse modification of those areas is
also likely to jeopardize the continued existence of the species.
Therefore, designating occupied areas as critical habitat typically
causes little if any incremental impacts above and beyond the impacts
of listing the species. As a result, we generally focus the screening
analysis on areas of unoccupied critical habitat (unoccupied units or
unoccupied areas within occupied units). Overall, the screening
analysis assesses whether designation of critical habitat is likely to
result in any additional management or conservation efforts that may
incur incremental economic impacts. This screening analysis combined
with the information contained in our IEM constitute what we consider
to be our draft economic analysis (DEA) of the proposed critical
habitat designation for the bushy whitlow-wort; our DEA is summarized
in the narrative below.
As part of our screening analysis, we considered the types of
economic activities that are likely to occur within the areas likely
affected by the critical habitat designation. In our evaluation of the
probable incremental economic impacts that may result from the proposed
designation of critical habitat for the bushy whitlow-wort, first we
identified, in the IEM dated August 2, 2022, probable incremental
economic impacts associated with the following categories of
activities: (1) Highway construction or maintenance; and (2) wind
energy development. We considered each industry or category
individually. Additionally, we considered whether the activities have
any Federal involvement. Critical habitat designation generally will
not affect activities that do not have any Federal involvement; under
the Act, designation of critical habitat only affects activities
conducted, funded, permitted, or authorized by Federal agencies. If we
list the species, in areas where the bushy whitlow-wort is present,
Federal agencies would be required to consult with the Service under
section 7 of the Act on activities they authorize, fund, or carry out
that may affect the species. If we list the species, and at that time
also finalize this proposed critical habitat designation, Federal
agencies would be required to consider the effects of their actions on
the designated habitat, and if the Federal action may affect critical
habitat, our consultations would include an evaluation of measures to
avoid the destruction or adverse modification of critical habitat.
In our IEM, we attempted to clarify the distinction between the
effects that would result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the bushy
whitlow-wort's critical habitat. Because the designation of critical
habitat for bushy whitlow-wort is being proposed concurrently with the
listing, it has been our experience that it is more difficult to
discern which conservation efforts are attributable to the species
being listed and those which would result solely from the designation
of critical habitat. However, the following specific circumstances in
this case help to inform our evaluation: (1) The essential physical or
biological features identified for critical habitat are the same
features essential for the life requisites of the species, and (2) any
actions that would likely adversely affect the essential physical or
biological features of occupied critical habitat are also likely to
adversely affect the species itself. The IEM outlines our rationale
concerning this limited distinction between baseline conservation
efforts and incremental impacts of the designation of critical habitat
for this species. This evaluation of the incremental effects has been
used as the basis to evaluate the probable incremental economic impacts
of this proposed designation of critical habitat.
The proposed critical habitat designation for the bushy whitlow-
wort includes two units totaling 41.96 ac (16.98 ha). Both units are
considered occupied by the bushy whitlow-wort and contain the physical
and biological features essential to the conservation of the species.
We are not proposing to designate any units of unoccupied habitat. Both
units of the proposed designation are entirely on private land. In
these areas, any actions that may affect the species or its habitat
would also affect designated critical habitat, and it is unlikely that
any additional conservation efforts would be recommended to address the
adverse modification standard over and above those recommended as
necessary to avoid jeopardizing the continued existence of the bushy
whitlow-wort. Therefore, the potential effects of the critical habitat
designation are expected to be limited to administrative costs.
While this additional analysis will require time and resources by
both the Federal action agency and the Service, it is believed that, in
most circumstances, these costs would predominantly be administrative
in nature and would not be significant. Total incremental costs of
critical habitat designation for the bushy whitlow-wort are anticipated
to be less than $1,900 per year for the next 10 years. In total, fewer
than one informal consultation and fewer than one technical assistance
effort are
[[Page 19541]]
anticipated to occur annually across both proposed critical habitat
units. The designation of critical habitat is not expected to trigger
additional requirements under State or local regulations, and
incremental perception-related impacts appear unlikely. Thus, the
annual administrative burden is unlikely to reach $200 million.
We are soliciting data and comments from the public on the DEA
discussed above. During the development of a final designation, we will
consider the information presented in the DEA and any additional
information on economic impacts we receive during the public comment
period to determine whether any specific areas should be excluded from
the final critical habitat designation under the authority of section
4(b)(2) of the Act, our implementing regulations at 50 CFR 424.19, and
the 2016 Policy. We may exclude an area from critical habitat if we
determine that the benefits of excluding the area outweigh the benefits
of including the area, provided the exclusion will not result in the
extinction of this species.
Consideration of National Security Impacts
Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or
areas that pose potential national-security concerns (e.g., a DoD
installation that is in the process of revising its INRMP for a newly
listed species or a species previously not covered). If a particular
area is not covered under the Act's section 4(a)(3)(B)(i), then
national-security or homeland-security concerns are not a factor in the
process of determining what areas meet the definition of ``critical
habitat.'' However, the Service must still consider impacts on national
security, including homeland security, on those lands or areas not
covered by section 4(a)(3)(B)(i) because section 4(b)(2) requires the
Service to consider those impacts whenever it designates critical
habitat. Accordingly, if DoD, Department of Homeland Security (DHS), or
another Federal agency has requested exclusion based on an assertion of
national-security or homeland-security concerns, or we have otherwise
identified national-security or homeland-security impacts from
designating particular areas as critical habitat, we generally have
reason to consider excluding those areas.
However, we cannot automatically exclude requested areas. When DoD,
DHS, or another Federal agency requests exclusion from critical habitat
on the basis of national-security or homeland-security impacts, we must
conduct an exclusion analysis if the Federal requester provides
information, including a reasonably specific justification of an
incremental impact on national security that would result from the
designation of that specific area as critical habitat. That
justification could include demonstration of probable impacts, such as
impacts to ongoing border-security patrols and surveillance activities,
or a delay in training or facility construction, as a result of
compliance with section 7(a)(2) of the Act. If the agency requesting
the exclusion does not provide us with a reasonably specific
justification, we will contact the agency to recommend that it provide
a specific justification or clarification of its concerns relative to
the probable incremental impact that could result from the designation.
If we conduct an exclusion analysis because the agency provides a
reasonably specific justification or because we decide to exercise the
discretion to conduct an exclusion analysis, we will defer to the
expert judgment of DoD, DHS, or another Federal agency as to: (1)
Whether activities on its lands or waters, or its activities on other
lands or waters, have national-security or homeland-security
implications; (2) the importance of those implications; and (3) the
degree to which the cited implications would be adversely affected in
the absence of an exclusion. In that circumstance, in conducting a
discretionary section 4(b)(2) exclusion analysis, we will give great
weight to national-security and homeland-security concerns in analyzing
the benefits of exclusion.
In preparing this proposal, we have determined that the lands
within the proposed designation of critical habitat for bushy whitlow-
wort are not owned or managed by the DoD or DHS, and, therefore, we
anticipate no impact on national security or homeland security.
Consideration of Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security discussed above. To identify other relevant impacts that may
affect the exclusion analysis, we consider a number of factors,
including whether there are permitted conservation plans covering the
species in the area--such as HCPs, safe harbor agreements, or candidate
conservation agreements with assurances--or whether there are non-
permitted conservation agreements and partnerships that may be impaired
by designation of, or exclusion from, critical habitat. In addition, we
look at whether Tribal conservation plans or partnerships, Tribal
resources, or government-to-government relationships of the United
States with Tribal entities may be affected by the designation. We also
consider any State, local, social, or other impacts that might occur
because of the designation.
Summary of Exclusions Considered under Section 4(b)(2) of the Act
In preparing this proposal, we have determined that no HCPs or
other management plans for bushy whitlow-wort currently exist, and the
proposed designation does not include any Tribal lands or trust
resources or any lands for which designation would have any economic or
national-security impacts. Therefore, we anticipate no impact on Tribal
lands, partnerships, or HCPs from this proposed critical habitat
designation and thus, as described above, we are not considering
excluding any particular areas on the basis of the presence of
conservation agreements or impacts to trust resources.
However, if through the public comment period we receive
information that we determine indicates that there are potential
economic, national security, or other relevant impacts from designating
particular areas as critical habitat, then as part of developing the
final designation of critical habitat, we will evaluate that
information and may conduct a discretionary exclusion analysis to
determine whether to exclude those areas under the authority of section
4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19.
If we receive a request for exclusion of a particular area and after
evaluation of supporting information we do not exclude, we will fully
describe our decision in the final rule for this action.
Required Determinations
Clarity of the Rule
We are required by E.O.s 12866 and 12988 and by the Presidential
Memorandum of June 1, 1998, to write all rules in plain language. This
means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To
[[Page 19542]]
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.
Regulatory Planning and Review (Executive Orders 12866, 13563, and
14094)
Executive Order (E.O.) 12866, as reaffirmed by E.O. 13563 and E.O.
14094, provides that the Office of Information and Regulatory Affairs
(OIRA) in the Office of Management and Budget (OMB) will review all
significant rules. OIRA has determined that this rule is not
significant.
Executive Order 14094 reaffirms the principles of E.O. 12866 and
E.O. 13563 and states that regulatory analysis should facilitate agency
efforts to develop regulations that serve the public interest, advance
statutory objectives, and are consistent with E.O. 12866, E.O. 13563,
and the Presidential Memorandum of January 20, 2021 (Modernizing
Regulatory Review). Regulatory analysis, as practicable and
appropriate, shall recognize distributive impacts and equity, to the
extent permitted by law. E.O. 13563 emphasizes further that regulations
must be based on the best available science and that the rulemaking
process must allow for public participation and an open exchange of
ideas. We have developed this proposed rule in a manner consistent with
these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine whether potential
economic impacts to these small entities are significant, we considered
the types of activities that might trigger regulatory impacts under
this designation as well as types of project modifications that may
result. In general, the term ``significant economic impact'' is meant
to apply to a typical small business firm's business operations.
Under the RFA, as amended, and as understood in light of recent
court decisions, Federal agencies are required to evaluate the
potential incremental impacts of rulemaking on those entities directly
regulated by the rulemaking itself; in other words, the RFA does not
require agencies to evaluate the potential impacts to indirectly
regulated entities. The regulatory mechanism through which critical
habitat protections are realized is section 7 of the Act, which
requires Federal agencies, in consultation with the Service, to ensure
that any action authorized, funded, or carried out by the agency is not
likely to destroy or adversely modify critical habitat. Therefore,
under section 7, only Federal action agencies are directly subject to
the specific regulatory requirement (avoiding destruction and adverse
modification) imposed by critical habitat designation. Consequently, it
is our position that only Federal action agencies would be directly
regulated if we adopt the proposed critical habitat designation. The
RFA does not require evaluation of the potential impacts to entities
not directly regulated. Moreover, Federal agencies are not small
entities. Therefore, because no small entities would be directly
regulated by this rulemaking, the Service certifies that, if made final
as proposed, the proposed critical habitat designation will not have a
significant economic impact on a substantial number of small entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if made final, the proposed
critical habitat designation would not have a significant economic
impact on a substantial number of small business entities. Therefore,
an initial regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare statements of energy effects to the extent
permitted by law when undertaking actions identified as significant
energy actions (66 FR 28355; May 22, 2001). E.O. 13211 defines a
``significant energy action'' as an action that (i) is a significant
regulatory action under E.O. 12866 or any successor order (including,
most recently, E.O. 14094 (88 FR 21879; April 11, 2023)); and (ii) is
likely to have a significant adverse effect on the supply,
distribution, or use of energy. This rule is not a significant
regulatory action under E.O. 12866 or E.O. 14094. Therefore, this
action is not a significant energy action, and there is no requirement
to prepare a statement of energy effects for this action.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following finding:
(1) This proposed rule would not produce a Federal mandate. In
general, a Federal mandate is a provision in legislation, statute, or
regulation that would impose an enforceable duty upon State, local, or
Tribal governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and Tribal governments under
[[Page 19543]]
entitlement authority,'' if the provision would ``increase the
stringency of conditions of assistance'' or ``place caps upon, or
otherwise decrease, the Federal Government's responsibility to provide
funding,'' and the State, local, or Tribal governments ``lack
authority'' to adjust accordingly. At the time of enactment, these
entitlement programs were: Medicaid; Aid to Families with Dependent
Children work programs; Child Nutrition; Food Stamps; Social Services
Block Grants; Vocational Rehabilitation State Grants; Foster Care,
Adoption Assistance, and Independent Living; Family Support Welfare
Services; and Child Support Enforcement. ``Federal private sector
mandate'' includes a regulation that ``would impose an enforceable duty
upon the private sector, except (i) a condition of Federal assistance
or (ii) a duty arising from participation in a voluntary Federal
program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions are not likely to destroy or adversely modify
critical habitat under section 7. While non-Federal entities that
receive Federal funding, assistance, or permits, or that otherwise
require approval or authorization from a Federal agency for an action,
may be indirectly impacted by the designation of critical habitat, the
legally binding duty to avoid destruction or adverse modification of
critical habitat rests squarely on the Federal agency. Furthermore, to
the extent that non-Federal entities are indirectly impacted because
they receive Federal assistance or participate in a voluntary Federal
aid program, the Unfunded Mandates Reform Act would not apply, nor
would critical habitat shift the costs of the large entitlement
programs listed above onto State governments.
(2) We do not believe that this rule would significantly or
uniquely affect small governments because it will not produce a Federal
mandate of $100 million or greater (adjusted annually for inflation) in
any year, that is, it is not a ``significant regulatory action'' under
the Unfunded Mandates Reform Act. The designation of critical habitat
imposes no obligations on State or local governments and, as such, a
Small Government Agency Plan is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for bushy whitlow-wort in a takings implications assessment.
The Act does not authorize the Service to regulate private actions on
private lands or confiscate private property as a result of critical
habitat designation. Designation of critical habitat does not affect
land ownership, or establish any closures, or restrictions on use of or
access to the designated areas. Furthermore, the designation of
critical habitat does not affect landowner actions that do not require
Federal funding or permits, nor does it preclude development of habitat
conservation programs or issuance of incidental take permits to permit
actions that do require Federal funding or permits to go forward.
However, Federal agencies are prohibited from carrying out, funding, or
authorizing actions that would destroy or adversely modify critical
habitat. A takings implications assessment has been completed for the
proposed designation of critical habitat for bushy whitlow-wort, and it
concludes that, if adopted, this designation of critical habitat does
not pose significant takings implications for lands within or affected
by the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this proposed rule does
not have significant Federalism effects. A federalism summary impact
statement is not required. In keeping with Department of the Interior
and Department of Commerce policy, we requested information from, and
coordinated development of this proposed critical habitat designation
with, appropriate State resource agencies. From a federalism
perspective, the designation of critical habitat directly affects only
the responsibilities of Federal agencies. The Act imposes no other
duties with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, the proposed rule does
not have substantial direct effects either on the States, or on the
relationship between the Federal government and the States, or on the
distribution of powers and responsibilities among the various levels of
government. The proposed designation may have some benefit to these
governments because the areas that contain the features essential to
the conservation of the species are more clearly defined, and the
physical or biological features of the habitat necessary for the
conservation of the species are specifically identified. This
information does not alter where and what federally sponsored
activities may occur. However, it may assist State and local
governments in long-range planning because they no longer have to wait
for case-by-case section 7 consultations to occur.
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) of the Act would be required. While
non-Federal entities that receive Federal funding, assistance, or
permits, or that otherwise require approval or authorization from a
Federal agency for an action, may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with E.O. 12988 (Civil Justice Reform), the Office of
the Solicitor has determined that the rule would not unduly burden the
judicial system and that it meets the requirements of sections 3(a) and
3(b)(2) of the Order. We have proposed designating critical habitat in
accordance with the provisions of the Act. To assist the public in
understanding the habitat needs of the species, this proposed rule
identifies the physical or biological features essential to the
conservation of the species. The proposed areas of critical habitat are
presented on a map, and the proposed rule provides several options for
the interested public to obtain more detailed location information, if
desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not
required. We may not conduct or sponsor and you are not required to
respond to a collection of information unless it displays a currently
valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
Regulations adopted pursuant to section 4(a) of the Act are exempt
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et
seq.) and do not require an environmental analysis under NEPA. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This
[[Page 19544]]
includes listing, delisting, and reclassification rules, as well as
critical habitat designations. In a line of cases starting with Douglas
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), the courts have upheld
this position.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), E.O. 13175 (Consultation and Coordination
with Indian Tribal Governments), and the Department of the Interior's
manual at 512 DM 2, we readily acknowledge our responsibility to
communicate meaningfully with federally recognized Tribes on a
government-to-government basis. In accordance with Secretary's Order
3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal
Trust Responsibilities, and the Endangered Species Act), we readily
acknowledge our responsibilities to work directly with Tribes in
developing programs for healthy ecosystems, to acknowledge that Tribal
lands are not subject to the same controls as Federal public lands, to
remain sensitive to Indian culture, and to make information available
to Tribes. We have determined that no Tribal lands fall within the
boundaries of the proposed critical habitat designation for the bushy
whitlow-wort, so no Tribal lands would be affected by the proposed
designation.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a> and upon request from
the Texas Coastal Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this proposed rule are the staff members of
the Fish and Wildlife Service's Species Assessment Team and the Texas
Coastal Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. In Sec. 17.12, amend the table in paragraph (h) by adding an entry
for ``Paronychia congesta'' in alphabetical order under FLOWERING
PLANTS to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Scientific name Common name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
Flowering Plants
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Paronychia congesta............. Bushy whitlow-wort Wherever found.... E [Federal Register
citation when
published as a final
rule];
50 CFR 17.96(a).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. In Sec. 17.96, amend paragraph (a) by adding an entry for ``Family
Caryophyllaceae: Paronychia congesta (bushy whitlow-wort)'' after the
entry for ``Family Caryophyllaceae: Arenaria ursina (Bear Valley
sandwort)'' to read as follows:
Sec. 17.96 Critical habitat--plants.
(a) Flowering plants.
* * * * *
Family Caryophyllaceae: Paronychia congesta (bushy whitlow-wort)
(1) Critical habitat units are depicted for Jim Hogg County, Texas,
on the map in this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of bushy whitlow-wort consist of the
following components:
(i) Exposed outcrops of calcified tuff;
(ii) Undisturbed or minimally disturbed soil horizons; and
(iii) Openings within shrubland communities that do not contain or
have low levels of buffelgrass (Pennisetum ciliare).
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
the effective date of the final rule.
(4) Data layers defining map units were created on a base of U.S.
Geological Survey digital ortho-photo quarter-quadrangles, and critical
habitat units were then mapped using Universal Transverse Mercator
(UTM) Zone 15N coordinates. The map in this entry, as modified by any
accompanying regulatory text, establishes the boundaries of the
critical habitat designation. The coordinates or plot points or both on
which the map is based are available to the public at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R2-ES-2023-0102, and at the field
office responsible for this designation. You may obtain field office
location information by contacting one of the Service regional offices,
the addresses of which are listed at 50 CFR 2.2.
(5) Unit 1: E.O. 1; Jim Hogg County, Texas.
(i) Unit 1 consists of 35.38 ac (14.32 ha) in a geographic cluster
of three polygons in northwest Jim Hogg County and is composed of lands
in private ownership.
(ii) Map of Units 1 and 2 follows:
Figure 1 to Family Caryophyllaceae: Paronychia congesta (bushy whitlow-
wort) paragraph (5)(ii)
BILLING CODE 4333-15-P
[[Page 19545]]
[GRAPHIC] [TIFF OMITTED] TP19MR24.000
[[Page 19546]]
(6) Unit 2: E.O. 2; Jim Hogg County, Texas.
(i) Unit 2 consists of 6.57 ac (2.66 ha) in a geographic cluster of
10 polygons in northwest Jim Hogg County and is composed of lands in
private ownership.
(ii) Map of Unit 2 is provided at paragraph (5)(ii) of this entry.
* * * * *
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2024-05700 Filed 3-18-24; 8:45 am]
BILLING CODE 4333-15-C
</pre></body>
</html>Indexed from Federal Register on March 19, 2024.
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.