Proposed Rule2024-28351
Endangered and Threatened Wildlife and Plants; Reclassification of the Rough Popcornflower From Endangered to Threatened With a Section 4(d) Rule
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Published
December 11, 2024
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), propose to reclassify the rough popcornflower (Plagiobothrys hirtus) from endangered to threatened (downlist) under the Endangered Species Act of 1973, as amended (Act). The proposed downlisting is based on our evaluation of the best available scientific and commercial information, which indicates that the species' status has improved such that it is not currently in danger of extinction throughout all or a significant portion of its range, but that it is still likely to become so within the foreseeable future. We also propose protective regulations under the authority of section 4(d) of the Act that are necessary and advisable to provide for the conservation of the rough popcornflower.
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[Federal Register Volume 89, Number 238 (Wednesday, December 11, 2024)]
[Proposed Rules]
[Pages 99809-99826]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-28351]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R1-ES-2024-0005; FXES1113090FEDR-245-FF09E22000]
RIN 1018-BG68
Endangered and Threatened Wildlife and Plants; Reclassification
of the Rough Popcornflower From Endangered to Threatened With a Section
4(d) Rule
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
reclassify the rough popcornflower (Plagiobothrys hirtus) from
endangered to threatened (downlist) under the Endangered Species Act of
1973, as amended (Act). The proposed downlisting is based on our
evaluation of the best available scientific and commercial information,
which indicates that the species' status has improved such that it is
not currently in danger of extinction throughout all or a significant
portion of its range, but that it is still likely to become so within
the foreseeable future. We also propose protective regulations under
the authority of section 4(d) of the Act that are necessary and
advisable to provide for the conservation of the rough popcornflower.
DATES: We will accept comments received or postmarked on or before
February 10, 2025. 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
public hearings, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by January 27, 2025.
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-R1-ES-2024-0005,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the panel on the left side of
the screen, under the Document Type heading, check the Proposed Rule
box to locate this document. You may submit a comment by clicking on
``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R1-ES-2024-0005, U.S. Fish and
[[Page 99810]]
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: This proposed rule and
supporting documents, including the 5-year reviews, the Recovery Plan,
and the species status assessment (SSA) report are available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R1-ES-2024-0005.
FOR FURTHER INFORMATION CONTACT: Kessina Lee, State Supervisor, U.S.
Fish and Wildlife Service, Oregon Fish and Wildlife Office, 2600 SE
98th Avenue, Suite 100, Portland, OR 97266; telephone: (503) 231-6179.
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. Please see Docket No. FWS-R1-ES-2024-0005 on <a href="https://regulations.gov">https://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, a species warrants
reclassification from endangered to threatened if it no longer meets
the definition of an endangered species (in danger of extinction
throughout all or a significant portion of its range). The rough
popcornflower is listed as endangered, and we are proposing to
reclassify (downlist) the rough popcornflower as threatened. We have
determined the rough popcornflower does not meet the Act's definition
of an endangered species, but it does meet the Act's definition of a
threatened species (likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its
range). Reclassifying a species as a threatened species can be
completed only by issuing a rule through the Administrative Procedure
Act rulemaking process (5 U.S.C. 551 et seq.).
What this document does. This rule proposes to downlist the rough
popcornflower from endangered to threatened, with a rule issued under
section 4(d) of the Act (a ``4(d) rule''), based on the species'
current status, which has been improved through implementation of
conservation actions.
The basis for our action. Under the Act, we may determine that a
species is an endangered species or a 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 may reclassify a species if the
best available commercial and scientific data indicate the species no
longer meets the applicable definition in the Act. Based on the status
review, the current threats analysis, and evaluation of conservation
measures discussed in this proposed rule, we conclude that the rough
popcornflower no longer meets the Act's definition of an endangered
species and should be reclassified to a threatened species. The species
is no longer in danger of extinction throughout all or a significant
portion of its range, but it is likely to become so within the
foreseeable future.
We have determined that rough popcornflower is a threatened species
due to the following threats: destruction or alteration of habitat by
development and hydrological changes, competition from native and
nonnative plant species, and impacts due to climate change.
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) Reasons we should or should not downlist the rough
popcornflower as a threatened species.
(2) New information on the historical and current status, range,
distribution, and population size of the species.
(3) New information on the known and potential threats to the
species, including habitat loss, habitat modification, competition, or
climate change.
(4) New information regarding the life history, ecology, and
habitat use of the species.
(5) Current or planned activities within the geographic range of
the species that may have adverse or beneficial impacts on the species.
(6) Information to assist with applying or issuing protective
regulations under section 4(d) of the Act that may be necessary and
advisable to provide for the conservation of the rough popcornflower.
(a) In particular, information concerning the extent to which we
should include any of the section 9 prohibitions in the 4(d) rule; or
(b) whether we should consider any additional or different
exceptions from the prohibitions in the 4(d) rule.
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, will not be considered in
making a determination, as 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.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via <a href="https://www.regulations.gov">https://www.regulations.gov</a>, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Our final determination may differ from this proposal because we
will consider all comments we receive during the comment period, as
well as any information that may become available after this proposal.
Based on the new information we receive (and if relevant, any comments
on that new
[[Page 99811]]
information), we may conclude that the species should remain listed as
endangered instead of being reclassified as threatened, or we may
conclude that the species no longer warrants listing as either an
endangered species or a threatened species. In addition, we may change
the parameters of the prohibitions or the exceptions to those
prohibitions in the protective regulations under section 4(d) of the
Act if we conclude it is appropriate in light of comments and new
information received. For example, we may expand the prohibitions if we
conclude that the protective regulation as a whole, including those
additional prohibitions, is necessary and advisable to provide for the
conservation of the species. Conversely, we may establish additional or
different exceptions to the prohibitions in the final rule if we
conclude that the activities would facilitate or are compatible with
the conservation and recovery of the species. In our final rule, we
will clearly explain our rationale and the basis for our final
decision, including why we made changes, if any, that differ from this
proposal.
Public Hearing
Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and local newspapers at least 15 days before the
hearing. We may hold the public hearing in person or virtually via
webinar. We will announce any public hearing on our website, in
addition to the Federal Register. The use of these virtual public
hearings is consistent with our regulations at 50 CFR 424.16(c)(3).
Previous Federal Actions
Section 12 of the Act directed the Secretary of the Smithsonian
Institution to prepare a report on plants considered to be endangered,
threatened, or extinct in the United States. This report, designated as
House Document No. 94-51, was presented to Congress on January 9, 1975.
On July 1, 1975, we published a notice in the Federal Register (40 FR
27823) of our acceptance of the report as a petition within the context
of section 4(c)(2) (now section 4(b)(3)) of the Act and our intention
to review the status of the plant species named in the report.
On June 16, 1976, we published a proposed rule in the Federal
Register (41 FR 24523) to designate approximately 1,700 vascular plant
species, including rough popcornflower, as endangered pursuant to
section 4 of the Act. In 1978, amendments to the Act required that all
proposals over 2 years old be withdrawn. On December 10, 1979, we
published a notice in the Federal Register (44 FR 70796) of the
withdrawal of that portion of the June 16, 1976, proposal that had not
been made final, along with four other proposals that had expired.
On December 15, 1980, we published an updated notice of review for
plants in the Federal Register (45 FR 82480) that included rough
popcornflower as a category 1 candidate species. On November 28, 1983,
we published a supplement to the December 15, 1980, notice of review in
the Federal Register (48 FR 53640) in which we changed the status of
rough popcornflower to a category 2 candidate species, and this species
remained a category 2 candidate species until 1996. On January 20,
1984, we published a notice in the Federal Register (49 FR 2485) that
the petitioned listing of this species was warranted but precluded by
other pending listing actions. On February 28, 1996, we published a
notice of review in the Federal Register (61 FR 7596) that discontinued
the designation of category 2 species as candidates. In that notice of
review, we retained rough popcornflower as a candidate species.
On November 20, 1997, we published a proposed rule in the Federal
Register (62 FR 61953) to list this species as an endangered species
under the Act, and on January 22, 1998, we announced a public hearing
on, and reopened and extended the comment period for, that proposal (63
FR 3301). On January 25, 2000, we published a final rule in the Federal
Register (65 FR 3866) to list the rough popcornflower as an endangered
species without designating critical habitat.
On January 28, 2003, we published in the Federal Register (68 FR
4228) a notice of availability of the draft recovery plan for the rough
popcornflower (hereafter ``recovery plan''). We published the notice of
availability for the final recovery plan on September 25, 2003 (68 FR
55410). On October 25, 2019, we published a notice of availability of a
draft amendment updating the recovery criteria in the recovery plan (84
FR 57468), and that recovery plan amendment was signed on December 20,
2019.
On April 29, 2008, we published in the Federal Register (73 FR
23264) a notice of initiation of a 5-year review for rough
popcornflower. A 5-year review was completed on August 11, 2010,
recommending no change in the plant's endangered status. On February
12, 2016, we again published in the Federal Register (81 FR 7571) a
notice of initiation of a 5-year review for rough popcornflower. In the
most recent 5-year status review completed on April 14, 2021, we
determined the species no longer met the Act's definition of an
endangered species and should be reclassified to a threatened species.
The 2021 5-year status review is available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No. FWS-R1-ES-2024-0005 and at <a href="https://ecosphere-documents-production-public.s3.amazonaws.com/sams/public_docs/species_nonpublish/949.pdf">https://ecosphere-documents-production-public.s3.amazonaws.com/sams/public_docs/species_nonpublish/949.pdf</a>.
For additional details on previous Federal actions, see <a href="https://ecos.fws.gov/ecp/species/2500">https://ecos.fws.gov/ecp/species/2500</a> for the species profile for this plant.
Peer Review
A species status assessment (SSA) team prepared an SSA report for
the rough popcornflower. 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 in
listing actions under the Act, we solicited independent scientific
review of the information contained in the rough popcornflower SSA
report. We sent the SSA report to three independent peer reviewers and
received two responses. The peer reviews can be found at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. In preparing this proposed rule, we incorporated
the results of these reviews, as appropriate, into the SSA report,
which is the foundation for this proposed rule.
Summary of Peer Reviewer Comments
As discussed above in Peer Review, we received comments from two
peer reviewers on the draft SSA report. We reviewed all comments we
received from the peer reviewers for substantive issues and new
information regarding the information contained in the SSA report. The
peer reviewers generally concurred with our methods and provided
additional information,
[[Page 99812]]
clarifications, and editorial suggestions. Two specific comments were
to include a description of the role of natural disturbances in the
species' habitat and to offer an explanation of the downlisting
criteria as they relate to a minimum population size. We clarified
these aspects in the SSA report. Otherwise, no substantive changes to
our analysis and conclusions within the SSA report were deemed
necessary, and peer reviewer comments are addressed in version 1.0 of
the SSA report (USFWS 2021, entire).
Proposed Reclassification Determination
Background
Rough popcornflower (Plagiobothrys hirtus) is an herbaceous plant
in the borage or ``forget-me-not'' family (Boraginaceae) and is endemic
to the Umpqua River basin in Douglas County, Oregon. Rough
popcornflower is closely associated with emergent wetlands within
seasonally wet meadows or prairie and relatively level, open habitats
formed from poor draining clay-loam soils, concentrated in the
Sutherlin Creek sub-watershed in Oregon (see figure 1, below).
[GRAPHIC] [TIFF OMITTED] TP11DE24.023
[[Page 99813]]
Figure 1. Distribution of rough popcornflower in Douglas County,
Oregon.
Rough popcornflower can be either an annual or a short-lived
perennial. Individual rough popcornflower plants are between 2.75
inches (in) (7 centimeters (cm)) and 23.6 in (60 cm) tall, with narrow,
bright-green leaves. Their trumpet-shaped, non-fragrant flowers consist
of five fused petals, and are mostly white with yellow centers. Rough
popcornflower plants, whether annual or perennial, reach sexual
maturity and produce fruits in their first year. The plants generally
germinate in the fall, bloom in late spring and early summer, produce
seed beginning in late June, and then senesce between July and
November. The species is capable of either self-fertilization or cross-
fertilization; however, generalist insect pollination appears to be the
predominant vector enabling rough popcornflower reproduction (Amsberry
and Meinke 2001, pp. 12-13). A thorough review of the taxonomy, life
history, and ecology of the rough popcornflower is presented in the SSA
report, version 1.0 (USFWS 2021, entire).
Recovery Criteria
Section 4(f) of the Act directs us to develop and implement
recovery plans for the conservation and survival of endangered and
threatened species unless we determine that such a plan will not
promote the conservation of the species. Under section 4(f)(1)(B)(ii),
recovery plans must, to the maximum extent practicable, include
objective, measurable criteria which, when met, would result in a
determination, in accordance with the provisions of section 4 of the
Act, that the species be removed from the Lists of Endangered and
Threatened Wildlife and Plants.
Recovery plans provide a roadmap for us and our partners on methods
of enhancing conservation and minimizing threats to listed species, as
well as measurable criteria against which to evaluate progress towards
recovery and assess the species' likely future condition. However, they
are not regulatory documents and do not substitute for the
determinations and promulgation of regulations required under section
4(a)(1) of the Act. A decision to revise the status of a species, or to
delist a species, is ultimately based on an analysis of the best
scientific and commercial data available to determine whether a species
is no longer an endangered species or a threatened species, regardless
of whether that information differs from the recovery plan.
There are many paths to accomplishing recovery of a species, and
recovery may be achieved without all of the criteria in a recovery plan
being fully met. For example, one or more criteria may be exceeded
while other criteria may not yet be accomplished. In that instance, we
may determine that the threats are minimized sufficiently and that the
species is robust enough that it no longer meets the definition of an
endangered species or a threatened species. In other cases, we may
discover new recovery opportunities after having finalized the recovery
plan. Parties seeking to conserve the species may use these
opportunities instead of methods identified in the recovery plan.
Likewise, we may learn new information about the species after we
finalize the recovery plan. The new information may change the extent
to which existing criteria are appropriate for identifying recovery of
the species. The recovery of a species is a dynamic process requiring
adaptive management that may, or may not, follow all of the guidance
provided in a recovery plan.
We completed a final recovery plan for the rough popcornflower in
2003 (USFWS 2003, entire) and amended the plan in 2019 (USFWS 2019,
entire). The objective of the original recovery plan for rough
popcornflower was to reduce the threats and increase population
viability to the point that the species could be downlisted to
threatened status (USFWS 2003, p. 21). The original recovery plan
assigned each known natural population to one of three recovery units
(Calapooya Creek, Sutherlin Creek, and Yoncalla Creek). The recovery
units each corresponded to a drainage basin within the Lower North
Umpqua system and represented groups of populations which share
phenotypic similarities and are potentially genetically similar to one
another. The original recovery plan also established recovery criteria
for downlisting (USFWS 2003, pp. 21-22). At that time, the information
available was insufficient to identify recovery criteria for delisting.
The 2019 recovery plan amendment evaluated the adequacy of existing
recovery criteria, amended downlisting criteria, added delisting
criteria, and presented rationale supporting the recovery plan
modification (USFWS 2019, entire).
Below are the downlisting criteria for the rough popcornflower as
amended in 2019 (USFWS 2019, pp. 4-6), and the progress made to date
toward achieving each criterion.
Criterion 1 for Downlisting
Criterion 1 states that at least 9 reserves, containing a minimum
of 5,000 plants each, are protected and managed to assure their long-
term survival. A reserve refers to one or more patches of rough
popcornflower located within 0.6 miles (mi) (1 kilometer (km)) of each
other that are protected from development and managed for the continued
existence of the species (USFWS 2019, p. 3). The minimum population
size of 5,000 individuals per reserve is intended to provide sufficient
resiliency to withstand stochastic events (Culotta 1995, pp. 31-32;
Traill et al. 2007, p. 164). The number of reserves is intended to
provide sufficient redundancy such that rough popcornflower is not at
risk of extinction due to catastrophic events. The maximum distance
between patches within a reserve provides connectivity for pollinator-
mediated gene flow across the population (USFWS 2019, p. 4).
At the time of listing, our knowledge of rough popcornflower
abundance and distribution was limited to roughly 7,000 known plants in
8 populations (USFWS 2021 p. 9). Since then, many conservation partners
have made significant contributions to rough popcornflower recovery
efforts. For example, the Oregon Department of Agriculture has
collected seed, sown seed for use by multiple partners, augmented
existing populations, conducted monitoring, and provided technical
expertise. Other conservation partners, such as the Douglas County Soil
and Water Conservation District, City of Sutherlin, and Bureau of Land
Management, have entered into formal agreements to perform habitat
restoration followed by seeding on a number of properties. Recent
surveys (USFWS 2021, appendix 3; USFWS 2022, entire; USFWS 2023a,
entire) documented a total of 12 rough popcornflower reserves. Eleven
of those reserves are protected and managed while one reserve (a
privately owned parcel containing over 700,000 plants) is currently
adequately managed but is not protected (see table 1, below). Ten of
the 12 reserves meet the minimum population size of 5,000 individuals
per reserve to fully satisfy criterion 1. This number of plants and the
distribution of populations is expected to enable rough popcornflower
to withstand both stochastic and catastrophic events, and to maintain
the capacity to adapt to future environmental changes. As such, we
conclude that this downlisting criterion has been met and exceeded.
[[Page 99814]]
Criterion 2 for Downlisting
Criterion 2 states a minimum of 5,382 square feet (ft\2\) (500
square meters (m\2\)) is occupied by the rough popcornflower within
each of the 9 reserves meeting criterion 1. The intent of this
criterion is to have multiple populations large enough to maintain
sufficient resiliency to withstand stochastic events.
Seven of the 10 reserves that meet criterion 1 contain at least
5,382 ft\2\ (500 m\2\) of occupied habitat to meet the description of
criterion 2. Two other populations (Deady and Southside Swale) also
meet or exceed the area coverage parameter but do not satisfy the
criterion as they are either not considered to be a protected
population or do not meet the minimum number of plants to be considered
a reserve (see table 1, below). Although this criterion is not fully
met as identified in the recovery plan, there are nine populations that
meet or exceed the area coverage parameter. We conclude that the intent
of this criterion has been met because having 9 populations with 5,382
ft\2\ (500 m\2\) occupied by rough popcornflower distributed across the
species' range is expected to enable rough popcornflower to withstand
both stochastic and catastrophic events, and to maintain the capacity
to adapt to future environmental changes.
Criterion 3 for Downlisting
Criterion 3 states that a minimum of nine reserves, each meeting
criteria 1 and 2, are distributed across the recovery units, with a
minimum of five reserves in the Sutherlin Creek recovery unit and at
least one reserve each in the Yoncalla Creek and Calapooya Creek
recovery units. The remaining two reserves may be located within any of
the natural recovery units, or elsewhere within the watersheds
containing the recovery units. The intent of this criterion is to
provide sufficient redundancy of populations across the species' range
to allow the species to withstand catastrophic events.
Of the seven reserves meeting criteria 1 and 2, four are in the
Sutherlin Creek recovery unit, one is in the Yoncalla Creek recovery
unit, and two are in the Umpqua Management Area, which includes
introduced populations of rough popcornflower in the Bureau of Land
Management (BLM)'s North Bank Habitat Management Area.
Criterion 3 has not been fully met because the number of reserves
fully meeting both criteria 1 and 2 is not met. However, the
distribution of 11 populations that exceed 5,000 plants (10 protected)
across all recovery units and the Umpqua Management Area, and 9
populations that exceed 5,382 ft\2\ (500 m\2\) occupied by rough
popcornflower, demonstrate that relatively large populations are
spatially distributed across the species' range such that rough
popcornflower is expected to withstand both stochastic and catastrophic
events, and to maintain the capacity to adapt to future environmental
changes, lead us to conclude that the intent of this downlisting
criterion has been met.
Criterion 4 for Downlisting
Criterion 4 states that over a 5-year period, with a minimum of 3
individual years of monitoring, demographic data indicate at least
seven of the nine reserves referenced in criterion 1 have average
population numbers that are stable or increasing, without decreasing
trends lasting more than 2 years. Stable or increasing populations are
an indicator of resiliency. While some inter-annual variability is
expected due to demographic and environmental stochasticity, this
criterion is intended to provide sufficient confidence that large,
sustained declines will not occur. Population monitoring, which entails
taking a full plant census, takes place in late spring or early summer
either annually or biannually. We monitor populations on private, city,
or county land when authorized to do so. Alternatively, we provide
funding through the Cooperative Endangered Species Conservation Fund to
the Oregon Department of Agriculture to monitor populations.
Conservation partners including the Bureau of Land Management, Oregon
Department of Transportation, and The Nature Conservancy monitor
populations on their lands biennially.
Five of the 10 rough popcornflower reserves that meet criterion 1
also currently meet this criterion (see table 1, below). Although the
remaining five reserves meeting criterion 1 have not been monitored
with sufficient frequency to satisfy all of the requirements of this
criterion, they have maintained relatively stable population numbers
between monitoring events from 2011 to 2023 (USFWS 2021 pp. 13-16;
USFWS 2022, entire; USFWS 2023a, entire). Having all 10 of the reserve
populations exhibiting stable or increasing numbers across the range of
the species demonstrates that rough popcornflower has sufficient
resiliency to respond to inter-annual environmental variability and is
unlikely to experience sustained declines across its range. As such, we
conclude that the intent of this downlisting criterion has been met.
Table 1--Rough Popcornflower Downlisting Criteria and Status by Recovery Units/Area, Douglas County, Oregon
[[check] = criterion met]
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Downlisting criteria
-----------------------------------------------------------------------------------------------------
#1 #2 #3 #4
-----------------------------------------------------------------------------------------------------
Population Recovery unit 3 survey yrs. w/
Plants >5,000 Managed or Patches within Area >500 m\2\ DC #1 and #2 in last 5 yrs.;
(# of plants) protected 1 km (size in m\2\) met \4\ no 2-yr
decrease
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Horsepasture 2.............. Sutherland Creek. [check] [check] [check] [check] [check] ...............
(700,000) (10,700)
2. TNC \1\ Oerding/ODOT \2\ Del Sutherland Creek. [check] [check] [check] [check] [check] [check]
Rio. (29,681) (800)
3. ODOT \2\ Wilbur Mitigation Sutherland Creek. [check] [check] [check] [check] [check] ...............
site. (42,511) (1,810)
4. Hawthorne................... Sutherland Creek. (250) ............... [check] (150) ............... ...............
5. Orenco Ponds................ Sutherland Creek. [check] [check] [check] [check] [check] [check]
(14,380) (1,500)
6. Red Rock.................... Sutherland Creek. [check] [check] [check] (372) ............... [check]
(5,092)
7. Southside Swale............. Sutherland Creek. (525) [check] [check] [check] ............... [check]
(550)
8. Deady....................... Sutherland Creek. [check] ............... [check] [check] ............... ...............
(6,000) (500)
[[Page 99815]]
9. Sutherland East............. Sutherland Creek. (1,000) ............... [check] (6) ............... ...............
10. Ford's Pond................ Callapooya Creek. [check] [check] [check] (450) ............... [check]
(5,082)
11. Stearns Lane............... Callapooya Creek. (0) ............... [check] (0) ............... ...............
12. Nonpareil.................. Callapooya Creek. (0) ............... [check] (0) ............... ...............
13. Goat Ranch................. Callapooya Creek. (75) ............... [check] (5) ............... ...............
14. ODOT \2\ Yoncalla South.... Yoncalla Creek... [check] [check] [check] (350) ............... ...............
(5,800)
15. ODOT \2\ Yoncalla 2........ Yoncalla Creek... [check] [check] [check] [check] [check] ...............
(5,595) (800)
16. Soggy Bottoms Patch........ Umpqua Mgmt. Area (3,363) [check] [check] (108) ............... ...............
\3\.
17. Middle Barn/Soggy Bottoms Umpqua Mgmt. Area [check] [check] [check] [check] [check] [check]
Sister. \3\. (11,222) (1,000)
18. Westgate................... Umpqua Mgmt. Area [check] [check] [check] [check] [check] ...............
\3\. (6,000) (600)
-----------------------------------------------------------------------------------------------------
Total...................... ................. 836,576 plants ............... ............... 19,701 m\2\ ............... ...............
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ TNC means The Nature Conservancy.
\2\ ODOT means the Oregon Department of Transportation.
\3\ The Umpqua Management Area is not an official recovery unit. This area is an additional recovery management area that includes introduced
populations of rough popcornflower in the Bureau of Land Management (BLM)'s North Bank Habitat Management Area.
\4\ Downlisting Criterion 3 states that a minimum of nine reserves, each meeting the requirements in Downlisting Criteria 1 and 2, are distributed with
at least one reserve each in the Calapooya Creek and Yoncalla Creek recovery units, and a minimum of five reserves in the Sutherlin Creek recovery
unit.
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 threatened and
endangered species.
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range, and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an endangered species or a threatened
species because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects. We consider these same five
factors in downlisting a species from endangered to threatened.
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.
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 which is
further described in the 2009 Memorandum Opinion on the foreseeable
future from the Department of the Interior, Office of the Solicitor (M-
37021, January 16, 2009; ``M-Opinion,'' available online at <a href="https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37021.pdf">https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37021.pdf</a>).
The foreseeable future extends as far into the future as the U.S. Fish
and Wildlife Service and
[[Page 99816]]
National Marine Fisheries Service (hereafter, the Services) can make
reasonably reliable predictions about the threats to the species and
the species' responses to those threats. We need not identify the
foreseeable future in terms of a specific period of time. We will
describe the foreseeable future on a case-by-case basis, using the best
available data and taking into account considerations such as the
species' life-history characteristics, threat-projection timeframes,
and environmental variability. In other words, the foreseeable future
is the period of time over which we can make reasonably reliable
predictions. ``Reliable'' does not mean ``certain''; it means
sufficient to provide a reasonable degree of confidence in the
prediction, in light of the conservation purposes of the Act.
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 reclassified as a 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 the rough popcornflower'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 individual species' life-history
needs. The next stage involved an assessment of the historical and
current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time. We use this information to inform our regulatory
decision.
The following is a summary of the key results and conclusions from
the SSA report; the full SSA report (USFWS 2021, entire) can be found
on <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No. FWS-R1-ES-2024-0005.
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. In addition, the SSA report
(USFWS 2021, entire) documents our comprehensive biological status
review for the species, including an assessment of the potential
threats to the species.
The following is a summary of this status review and the best
available information gathered since that time that have informed this
decision.
Ecological Needs
Rough popcornflower typically occupies seasonally wet meadows or
prairie, seasonally-ponding mudflats, and Oregon ash (Fraxinus
latifolia) swale openings dominated by native wetland-associated plants
in valley lowlands where the ground is moist well into the summer
season. Rough popcornflower requires early seral habitat and is not
associated with dense tree or shrub canopies. Periodic disturbance
(e.g., flooding, fire, mowing, or grazing) is necessary to control
nonnative and native plant competitors and maintain the early seral and
open habitat conditions in which rough popcornflower populations
thrive. Several insects are known to pollinate rough popcornflower:
honey bees (Apis spp.); bumble bees (Bombus spp.); halictid and
megachilid bees; Hemiptera (true bugs); bombyliid, syrphid, and
tachinid flies; and red-shouldered ctenucha moths (Ctenucha
rubroscapus). These insects require diverse native vegetation and
minimal pesticide exposure.
Resilient rough popcornflower populations need enough individuals
to withstand stochastic events and disturbances. The minimum viable
population size for rough popcornflower has not been identified.
However, the recovery plan characterizes 500 plants as an effective
population size and expanded that effective population size by a factor
of 10 to determine a minimum population size estimate of 5,000 plants.
This number represents the population size resilient to most
disturbances and capable of resisting inbreeding depression (USFWS
2003, p. 17; USFWS 2019, p. 4). Though some current populations may
have fewer than 5,000 plants, taking into consideration other factors
such as habitat quantity, habitat quality, connectivity, management,
protection, reproduction, they may still be considered to have high
resiliency (USFWS 2021, p. 31).
For rough popcornflower to be considered viable as a species, it
must be able to withstand catastrophic events and adapt to
environmental changes. This can be achieved with enough resilient
populations distributed across the species' geographic range,
representing the range of ecological settings in which the species is
known to exist. The minimum number of populations required for rough
popcornflower has not been determined. However, distribution and
abundance goals laid out in the recovery plan (USFWS 2003, pp. 21-22;
USFWS 2019, pp. 4-8) and described above under Recovery Criteria
provide a benchmark for evaluating the species' condition.
Factors Influencing the Species
When we listed rough popcornflower as endangered (65 FR 3866;
January 25, 2000), the primary threats included habitat alteration by
wetland filling and development, livestock grazing (or herbivory), and
competition from native and nonnative species. Small, isolated
populations were identified as making the species more vulnerable to
these threats. Overcollection for scientific or horticultural purposes,
vandalism, the inadequacy of regulatory mechanisms, road maintenance,
fire, and flooding were also identified as potential threats (65 FR
3866 at 3870-3872; January 25, 2000), but the available information
does not indicate that these factors pose a threat to the species
(USFWS 2003, p. 13; USFWS 2023b, entire). Climate change was recognized
as an additional threat in 2010 (USFWS 2010, p. 28).
[[Page 99817]]
Habitat Loss and Fragmentation
In the final listing rule (65 FR 3866 at 3869; January 25, 2000),
we described how rough popcornflower populations had become fragmented
due to draining and filling of wetlands from properties being
developed. At the time of listing, only five populations of rough
popcornflower were protected from detrimental land-use activities.
Currently, 11 of the 18 known populations are under Federal, State,
municipal, or land trust protections; one is not protected but is on
adequately managed land. Education efforts have increased recognition
of rough popcornflower habitat, as well as avoidance, minimization, or
mitigation of development impacts. Because 11 of the 18 known
populations are now protected, the threat posed by detrimental land use
activities has been significantly reduced since the time of listing.
However, because formal commitments for the long-term beneficial
management of rough popcornflower have not been secured for 7
populations (approximately 84 percent of the total number of
individuals rangewide) this threat may increase in the future.
Small Population Size
In the final listing rule (65 FR 3866 at 3869-3870; January 25,
2000), we described the distribution of the rough popcornflower as 17
small patches of 1 to 3,000 plants (8 populations with approximately
7,000 plants total) that were threatened by natural (i.e., flood) and/
or anthropogenic (e.g., herbicide treatment) events. At that time, the
species' small population size was considered a threat because a single
natural or human-caused event could have the potential to extirpate
rough popcornflower patches.
Since that time, rough popcornflower occurrences have expanded to
18 populations and more than 800,000 plants (see table 1, above).
Twelve of the 18 current individual populations have 3,000 or more
plants, 11 of which have more than 5,000 plants. Although small
populations occur that remain vulnerable to extirpation, individual
populations are broadly distributed and the likelihood of a large-scale
event affecting them collectively is unlikely. During years with below
average precipitation, drought, or fires, seed set could fall short of
what is needed to maintain population stability. However, with a large
amount of seed produced by plants, it is likely that any periodic
depletion of seed bank will be short-term and the seed bank will be
replenished (USFWS 2021, p. 7). One population thought to be extirpated
for several years was documented flowering after 3 years of species
absence (Amsberry and Meinke 2008, p. 14).
At the time of listing, data also indicated that small, isolated
populations may not be able to sustain adequate genetic variation, and
that a lack of connectivity between isolated patches and populations
would limit pollinator-mediated gene flow. Our current analysis of
connectivity for the 18 rough popcornflower populations ranked 11
populations as having high connectivity (within 950 meters (m) (3,117
feet (ft)) or less) and 3 populations as having medium connectivity
(between 950 and 1,500 m (3,117 and 4,921 ft)) (USFWS 2021, p. 35),
indicating that rough popcornflower populations are less isolated than
at the time of listing. Overall, while the connectivity of small
populations is still of some concern, the species is much less
vulnerable to the effects of small population size and genetic
isolation than when it was listed in 2000.
Herbivory
Herbivory by Columbian white-tailed deer (Odocoileus virginianus
leucurus), black-tailed deer (Odocoileus hemionus columbianus),
rodents, and livestock has been documented and was identified as a
threat to rough popcornflower (65 FR 3866 at 3871; January 25, 2000).
Although high densities of white-tailed and black-tailed deer overlap
with the distribution of rough popcornflower, the best available
information does not indicate that deer herbivory is adversely
impacting rough popcornflower populations (USFWS 2021, p. 23).
Grazing by livestock may or may not be consistent with rough
popcornflower conservation. Grazing of rough popcornflower during its
growing period can be detrimental to the species. However, grazing can
help control native and nonnative plant competitors and provide a
measure of disturbance that maintains the preferable early seral and
open habitat conditions for rough popcornflower. Four rough
popcornflower populations with more than 5,000 plants are on privately-
owned grazing lands; the largest single population (more than 700,000
plants) is on a private horse ranch where grazing is managed in a
manner compatible with the long-term survival of rough popcornflower
(USFWS 2021, p. 16). Depending on how grazing is managed, it can
adversely impact or benefit individual populations of rough
popcornflower. With 12 of the 18 populations considered protected or on
adequately managed land, livestock herbivory is not currently
considered a threat to the species overall. However, because formal
commitments for long-term management of livestock grazing for the
benefit of rough popcornflower have not been secured for some
populations (including the largest population of over 700,000 plants),
this threat may increase in the future.
Native and Nonnative Plant Encroachment
Native and nonnative plants, including pennyroyal (Mentha
pulegium), teasel (Dipsacus spp.), creeping thistle (Cirsium arvense),
and reed canary grass (Phalaris arundinacea), are a primary threat to
the establishment and maintenance of rough popcornflower due to their
encroachment of habitat and elimination of bare ground, which
popcornflower seeds require to germinate. Pennyroyal is present at many
rough popcornflower sites, and teasel and creeping thistle control
require constant conservation efforts at the North Bank Habitat
Management Area (NBHMA), Yoncalla South and TNC Popcorn Swale Preserve
populations.
Rough popcornflower is conservation reliant, and when natural
disturbance events are lacking, active management (e.g., manual
weeding, herbicide application, mowing, and strategic grazing) is
necessary to control competing vegetation and maintain early seral
habitats to help maintain many of the rough popcornflower populations
into the future (USFWS 2010, p. 27). Invasive plants appear to be less
of a concern on private lands due to livestock grazing (USFWS 2020,
p.2). Strategic grazing by livestock, in terms of seasonal grazing
periods and intensity, when closely monitored, can benefit rough
popcornflower populations by reducing plant competition and creating
open ground that facilitates seed germination and enables population
expansion (USFWS 2021, p. 24).
While competition with native and nonnative plants remains an
ongoing threat to rough popcornflower, this threat can be successfully
managed through continued investments in the adaptive management
practices that have resulted in flourishing populations across the
species' range (USFWS 2021, appendices 3 and 4).
Fire
At the time of listing, fire was considered a natural event key to
the formation and maintenance of rough popcornflower habitat (65 FR
3866 at
[[Page 99818]]
3867; January 25, 2000). In late September 2003, an accidental fire
burned across the North Bank/Soggy Bottoms rough popcornflower
population at moderate intensity. The year following the burn, staff
noted that individual rough popcornflower plants were much larger and
robust, and the population had increased. The population dropped
significantly during the following 5 years, although that was
considered likely due to changed site hydrology. While the effects of
fire in rough popcornflower habitat restoration are still unknown
(USFWS 2010, p. 27), data collected after the 2003 fire suggest that
low- to moderate-intensity fire can have at least short-term beneficial
effects to the species.
Climate Change
The likely impacts of climate change on rough popcornflower's
ecological processes are closely connected to the availability of
water. Due to their shallow and ephemeral nature, wet swales in
southwestern Oregon are particularly sensitive to increases in
evaporation or reductions in rainfall. Strong climate variability is
likely to persist in the Pacific Northwest, owing in part to the annual
and decadal climate variability associated with the Pacific Ocean (May
et al. 2018, p. 1039). Models project periods of prolonged drought
interspersed with years featuring heavy rainfall driven by powerful
atmospheric rivers and strong El Ni[ntilde]o winters (May et al. 2018,
p. 1039). Even modest temperature increases could result in more water
runoff in winter and less in spring and summer, more winter flooding,
and drier summer soils, thereby altering the seasonality and duration
of wetland hydration (Field et al. 2017, p. 18). Reduced soil moisture
due to evaporation and transpiration may exacerbate drought effects
(Field et al. 2017, p. 18). Drought-mediated decreases in water depth
and inundation periods could increase the frequency at which wetlands
dry before rough popcornflower has completed its flowering and fruiting
stages. However, Southern Oregon, along with other areas in the western
United States, has been experiencing a prolonged drought for several
years (Fleishman 2023, p. 52) and rough popcornflower continued to
demonstrate stable or increasing population trends. Climate change
could also cause temperatures to exceed those suitable for growth of
the species (USFWS 2010, p. 28).
The impact of climate change on rough popcornflower will likely
vary depending on site-specific conditions and annual precipitation
variation. Rough popcornflower individuals are naturally adaptive to
fall and winter inundation and depend on soil moisture until their seed
has matured. An earlier warming trend may result in a limited seed set
because the soil will dry out quicker and may benefit nonnative plants.
Habitat management using herbicides and prescribed burning would likely
increase with an increase in nonnative plants. However, if climate
change in Oregon results in wetter winters and springs as predicted
(Fleishman 2023, pp. 11-12), then the additional precipitation may
lengthen seed set and favor popcornflower survival over competitors
unable to adapt to saturated soils.
Current Condition
Resiliency
Resiliency, the ability of populations to withstand stochastic
events, is commonly determined as a function of metrics such as
population size, growth rate, or habitat quality and quantity. We
evaluated the current resiliency of rough popcornflower populations
based on the population size, habitat quantity, connectivity, habitat
quality, management frequency, reproductive success, and the degree of
protection afforded to each population (see tables 2 through 8, below).
Populations with over 5,000 mature plants were determined to be in high
condition based on the downlisting criteria outlined in the species'
recovery plan. Populations of over 1,000 plants were considered to be
in medium condition, and those with under 200 plants were considered to
be in low condition. We then assigned numerical values to each of those
condition category rankings in order to categorize the current overall
resiliency of each rough popcornflower population (see table 9, below).
A complete description of our analytical approach to current condition
is available in the SSA report (USFWS 2021, pp. 34-37).
Table 2--Population Size Rankings of Rough Popcornflower Populations
From the SSA Report and Subsequent Surveys
------------------------------------------------------------------------
Number of Number of
Population size (# of plants) populations in populations in
2021 2023
------------------------------------------------------------------------
High (>=5,000)....................... 13 11
Medium (1,000-4,999)................. 2 2
Low (1-999).......................... 3 5
------------------------------------------------------------------------
Table 3--Habitat Quantity Rankings of Rough Popcornflower Populations
From the SSA Report and Subsequent Surveys
------------------------------------------------------------------------
Number of Number of
Habitat quantity (amount) populations in populations in
2021 2023
------------------------------------------------------------------------
High (>5,382 ft\2\/1640 m\2\)........ 7 9
Medium (820-5,382 ft\2\/250-1640 3 3
m\2\)...............................
Low (<820 ft\2\/250 m\2\)............ 8 6
------------------------------------------------------------------------
[[Page 99819]]
Table 4--Connectivity rankings of Rough Popcornflower Populations From
the SSA Report and Subsequent Surveys
------------------------------------------------------------------------
Number of
Connectivity (proximity to next populations in Number of
population) * 2021 populations in 2023
------------------------------------------------------------------------
High (<3,117 ft/950 m)............ 11 No change reported.
Medium (3,120-4921 ft/950-2000 m). 3 No change reported.
Low (>6,562 ft/2000 m)............ 4 No change reported.
------------------------------------------------------------------------
* Scores are not strictly distance-based if populations are separated by
barriers such as development, roads, or expanses of unsuitable
habitat.
Table 5--Habitat Quality Rankings of Rough Popcornflower Populations
From the SSA Report and Subsequent Surveys
------------------------------------------------------------------------
Number of
Habitat quality (presence of populations in Number of
invasive species) 2021 populations in 2023
------------------------------------------------------------------------
High (no invasive species)........ 5 No change reported.
Medium (1-2 invasive species)..... 8 No change reported.
Low (dominated by invasive 5 No change reported.
species).
------------------------------------------------------------------------
Table 6--Management Frequency Rankings of Rough Popcornflower
Populations From the SSA Report and Subsequent Surveys
------------------------------------------------------------------------
Number of
Management frequency (interval) populations in Number of
2021 populations in 2023
------------------------------------------------------------------------
High (continuous, annual, or 10 No change reported.
biennial).
Medium (3-5 years)................ 5 No change reported.
Low (5 years)..................... 3 No change reported.
------------------------------------------------------------------------
Table 7--Reproductive Success Rankings of Rough Popcornflower
Populations From the SSA Report and Subsequent Surveys
------------------------------------------------------------------------
Number of
Reproductive success (measures) populations in Number of
2021 populations in 2023
------------------------------------------------------------------------
High (>5,000 plants and 100 15 No change reported.
percent seed production).
Medium (3,000-5,000 plants, 75-99 1 No change reported.
percent seed production).
Low (<3,000 plants, 0-74 percent 2 No change reported.
seed production).
------------------------------------------------------------------------
Table 8--Protected Status Rankings of Rough Popcornflower Populations
From the SSA Report and Subsequent Surveys
------------------------------------------------------------------------
Number of
Protected status populations in Number of
2021 populations in 2023
------------------------------------------------------------------------
Yes............................... 12 No change reported.
No................................ 6 No change reported.
------------------------------------------------------------------------
Table 9--Overall Resiliency Rankings of Rough Popcornflower Populations
From the SSA Report and Subsequent Surveys
------------------------------------------------------------------------
Number of Number of
Overall resiliency populations in populations in
2021 2023
------------------------------------------------------------------------
High................................. 11 10
Moderate............................. 3 3
Low.................................. 4 5
------------------------------------------------------------------------
As shown above in table 9, at the time of the SSA report in 2021,
11 (61 percent) of the 18 rough popcornflower populations scored high
for resiliency, 3 (17 percent) scored moderate, and 4 (22 percent)
scored low. Changes in condition category rankings as a result of
additional surveys conducted from 2021-2023 (USFWS 2022, entire;
[[Page 99820]]
USFWS 2023a, entire) resulted in overall resiliency rankings of 10 (55
percent) high, 3 (17 percent) moderate, and 5 (28 percent) low. These
results demonstrate relatively high resiliency across the range of the
rough popcornflower.
Redundancy
Redundancy is a species' ability to withstand catastrophic events
and is a function of the number and resilience of populations, as well
as their distribution and connectivity. At the time of listing, there
were eight known rough popcornflower populations. Currently, there are
18 known populations. Some of this increase is due to newly discovered
populations; however, since the time of listing, habitat restoration,
reintroductions, and habitat protection have collectively improved the
status of the species. Of the 18 known populations, 10 populations
score high for overall resiliency and are distributed across the range
of the species, with 6 in the Sutherlin Creek recovery unit, 2 in the
Yoncalla Creek recovery unit, and 2 in the Umpqua Management Area. The
eight populations with moderate or low resiliency contribute to the
species' redundancy to a lesser degree and are distributed across the
Calapooya Creek and Sutherlin Creek recovery units and the Umpqua
Management Area. The distribution of 10 populations with high
resiliency across two of the three recovery units and the management
area demonstrates good redundancy for the species.
Representation
Representation refers to the ability of a species to adapt to
change, and is assessed using geographic, genetic, ecological, and
niche diversity data. Ecological diversity and genetic variation based
on habitat differences, differences in annual and biennial life
histories, and differences in growth forms may be inferred from the
rough popcornflower's distribution across different sub-watersheds.
Multiple populations with high resiliency throughout the species'
range, along with populations of lesser resiliency, facilitate the
preservation of the genetic diversity present within each recovery
unit. Although populations with fewer than 5,000 plants may have lower
genetic variation, rough popcornflower's wide variety of possible
pollinators (Amsberry and Meinke 2001, pp. 12-13) assists in gene
transfer and could boost the genetic variation of these populations.
Natural and reintroduced rough popcornflower populations are
currently distributed in multiple sub-watersheds across the species'
historical range, and plants demonstrate diversity within and between
populations, including different growth forms and flowering times.
Additionally, rough popcornflower seeds do not all germinate every
year, and a portion of the seed bank likely remains in the ground. The
presence of a long-term seed bank allows rough popcornflower to persist
through periods of adverse environmental conditions. In combination,
these factors indicate that the species has the capacity to adapt to a
variety of environmental conditions and has good representation.
Future Condition
To assess the future viability of rough popcornflower, we
considered the factors that will influence the species within the
foreseeable future. We define the foreseeable future as 30 years, as we
consider this a reasonable timeframe to make reliable predictions about
the threats to this species and its response to those threats due to
this plant's reproductive strategy as an annual or short-lived
perennial. Our viability assessment is characterized in terms of the
resiliency, redundancy, and representation of the species as projected
under various plausible future conditions (Shaffer and Stein 2000 pp.
306-310; Wolf et al. 2015, entire; Smith et al. 2018, pp. 304, 306-
307). We projected the viability of rough popcornflower from 2020 to
2050 under three plausible future scenarios based on potential trends
with conservation partners, climate patterns, and population
demographics. Scenario A represented improvements over current
conditions. Scenario B represented the most likely conditions if
current trends continue. Scenario C represented conditions that are
worse than current conditions.
Scenario A assumes continued conservation support for the rough
popcornflower, including from private landowners throughout the
species' range, as well as additional funding for outplanting and
invasive vegetation control. Scenario B is the most likely scenario for
the rough popcornflower based on current agency commitments,
outplanting successes, the current ability to place conservation
agreements, and species' population demographic trends. We discuss
Scenario B further below. Scenario C assumes diminished habitat
conditions and management actions (e.g., mowing, manual or chemical
control of non-native herbaceous plants, prescribed burning), falling
short of what is needed, resulting in the reduction of the species'
resiliency, redundancy, and representation over the next 30 years. For
further details on all three scenarios, see the SSA report (USFWS 2021,
pp. 41-47).
We determined that rough popcornflower is expected to continue to
be influenced by the factors that have historically influenced and are
currently influencing the species, at rates most closely associated
with Scenario B. Scenario B represents the most likely conditions if
current trends continue (USFWS 2021, pp. 44-45).
In Scenario B, we made several assumptions about ongoing
conservation support within the foreseeable future. Several
conservation partners (government agencies, nonprofit conservation
organizations, academic institutions, and private landowners) have made
significant contributions to recovery efforts for rough popcornflower.
We assume that these partners will continue to collaborate and
contribute conservation resources to rough popcornflower and its
habitat based on current regulations and agency commitments,
outplanting successes, and our ability to obtain conservation
agreements. Continued outreach efforts are likely to support awareness
of the species among private landowners and the public and to generate
support for conservation. We also assume that development projects will
continue to be evaluated and modified by the Service, the Oregon
Department of State Lands, and the Oregon Department of Agriculture, to
minimize or mitigate impacts to rough popcornflower and its habitats.
Under a continually increasing greenhouse gas emission scenario,
Oregon's annual average temperature is projected to increase by 5
degrees Fahrenheit ([deg]F) (2.8 degrees Celsius ([deg]C)) by the 2050s
(Fleishman 2023, p. 11). In this scenario, the amount of annual
precipitation is projected to be highly uncertain. Summers are expected
to warm more than the annual average and are likely to become drier.
Extreme heat and precipitation events are expected to become more
frequent (Dalton et al. 2017, p. 8). The effects of climate change on
rough popcornflower populations are expected to be relatively moderate.
Most rough popcornflower plants are expected to adjust to warmer
temperatures by dispersing to moister habitats (via ungulates, other
mammals, or birds), flowering earlier, and shortening their flowering
period (USFWS 2021, p. 42). Climate change may limit rough
popcornflower's growing season and habitat as well as moisture
availability, though the species would continue to maintain viability
within the three recovery units and the
[[Page 99821]]
introduced populations at the Umpqua Management Area (USFWS 2021, p.
45). We acknowledge that some populations may fare better than others
under future conditions.
For species resiliency in Scenario B, we expect there will be a
total of 20 rough popcornflower populations. At least 10 of those
populations are anticipated to be in protected areas (reserves),
contain populations that meet or exceed 5,000 plants, and exhibit
stable or increasing population counts in 7 out of 10 years (see table
10, below).
In terms of redundancy, protected rough popcornflower populations
are expected to continue to be distributed in all three recovery units.
With a total of 20 populations distributed across the species' range,
we conclude that the rough popcornflower will be able to withstand
catastrophic events.
Table 10--Future Viability of Rough Popcornflower Under the Most Likely
Scenario, Future Scenario B
------------------------------------------------------------------------
Viability elements Expected condition
------------------------------------------------------------------------
Population Resilience........ Protected populations (>= 10) meet or
exceed criterion of >= 5,000 individual
stems and show stable or positive
demographic trends. The total population
number is 20. Stable or increasing
population counts occur 7 out of 10
years.
Species Redundancy........... Redundancy is provided by having 20
populations present across the range to
withstand catastrophic events.
Species Representation....... 20 populations, distributed across the
range of the species, would provide
genetic and ecological diversity for the
species. No evidence of inbreeding
depression.
Overall Viability............ Moderate: The species is able to adapt to
climate change, and species receives
adequate monitoring to inform management
needs. Species requires continued
management.
------------------------------------------------------------------------
For species representation, rough popcornflower populations are
expected to be well distributed across all three recovery units and the
Umpqua Management Area. We expect genetic diversity to be maintained in
the foreseeable future because there has been no evidence of inbreeding
depression or genetic drift detected in any of the populations
(Amsberry and Meinke 2017, p. 2).
Collectively, our analysis of the resiliency, redundancy, and
representation under this scenario indicates that the viability of the
rough popcornflower is not likely to be significantly reduced over the
next 30 years.
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.
Conservation Efforts and Regulatory Mechanisms
Rough popcornflower is a conservation-reliant species, meaning that
the species will require continued conservation efforts to survive due
to continuous encroachment from natural seral succession (USFWS 2010,
p. 30). Since listing the species in 2000, we have coordinated with
local, State, and Federal stakeholders on conservation actions for the
species, some of which we supported with funding.
Mowing in rough popcornflower habitat to control competing native
and nonnative plant species, and subsequent outplanting of rough
popcornflower, has occurred regularly at several sites. Other
conservation actions include fencing to protect populations from
anthropogenic disturbance; population introductions and augmentations;
and stakeholder workshops in which species needs, recovery targets, and
habitat conservation were discussed to raise landowner awareness.
Agencies and property owners who have made commitments to protect or
manage rough popcornflower and its habitat are the City of Sutherlin,
Oregon; Douglas Soil and Water Conservation District, Oregon; Oregon
Department of Agriculture (ODA), Native Plant Conservation Program; the
BLM; the Native Plant Society of Oregon, Umpqua Valley Chapter; and The
Nature Conservancy.
In the 2007 City of Sutherlin Conservation Agreement and
Conservation Plan (ODA 2007, entire), the cooperators (the Service, the
City of Sutherlin, ODA, the Umpqua Valley Chapter of the Native Plant
Society of Oregon, the Sutherlin Stampede Association, and the
Sutherlin Blackberry Festival, Inc.) agreed to the following measures:
<bullet> Prohibit activities that would disturb or destroy existing
populations of rough popcornflower, or their habitat, on land owned or
managed by the City of Sutherlin;
<bullet> Contract or coordinate appropriately timed surveys for new
populations of rough popcornflower on city-owned or -managed land prior
to initiating ground-disturbing projects;
<bullet> Contact the ODA Native Plant Conservation Program if a new
population of rough popcornflower is found during a pre-project survey;
cooperate with the ODA Native Plant Conservation Program to develop
conservation-based alternatives to proposed projects that would impact
rough popcornflower populations or their habitat; and
<bullet> Cooperate with the ODA Native Plant Conservation Program
to implement a management plan promoting the conservation of the
populations of rough popcornflower at the Red Rock Park (formerly
Timber Days Grounds).
Signatories of the agreement include the Service, the City of
Sutherlin, ODA, the Umpqua Valley Chapter of the Native Plant Society
of Oregon, the Sutherlin Stampede Association, and the Sutherlin
Blackberry Festival, Inc. Since 2007, implementation of this agreement
has provided fencing to protect rough popcornflower populations,
reduced competitive and invasive species, and increased population
numbers. This agreement was updated in 2023. In the updated agreement,
entitled ``Conservation Agreement for Rough Popcornflower,'' the City
of Sutherlin agreed to continue to protect the plant and to extend the
protection to Ford's Pond, a property acquired after the original
signing in 2007. The 2023 agreement also allows introduction of the
species at Ford's Pond (USFWS 2023c, p. 8).
The biological opinion on the North Bank Habitat Management Area
issued by the Service in 2001 evaluated the effects of proposed
management actions
[[Page 99822]]
and conservation measures conducted by the BLM for three rough
popcornflower populations occurring in the management area (USFWS 2001,
p. 15). Proposed management actions included manual and mechanical
removal of competitive vegetation and the use of integrated pest
management techniques to control noxious weeds. Proposed conservation
measures included retaining existing populations and introducing
additional populations into suitable habitat. To date, the BLM has
consistently implemented these management actions and conservation
measures, and the BLM is expected to continue to maintain and enhance
habitat for this species into the future.
The Oregon Department of Transportation (ODOT) has established the
Special Management Areas program to protect State-listed and federally
listed endangered and threatened plant species identified on ODOT
rights-of-way (ODOT 2017, p. 4). Special Management Areas are marked
with signs that instruct ODOT maintenance crews on allowable
activities. ODOT entered a statewide habitat conservation plan (HCP)
with the Service in 2017 (USFWS 2017, entire). Under the HCP, the
Special Management Areas identify the known populations of rare plants
along ODOT rights-of-way that they have agreed to avoid impacting. In
most cases, only periodic maintenance is necessary in Special
Management Areas, and site-specific restrictions have been developed to
protect listed species.
All federally listed plants in Oregon are also protected by State
law under the Oregon Endangered Species Act, and their protection and
conservation are administered by the ODA. The Oregon Endangered Species
Act protects many other plant species in addition to those protected
under the Federal Endangered Species Act. All State and municipal
agencies, including City of Sutherlin, Douglas County, Douglas Soil and
Water Conservation Service, and ODOT, must consult with ODA when a
proposed action on land owned or leased by the State, or for which the
State holds a recorded easement, has the potential to appreciably
reduce the likelihood of the survival or recovery of any listed plant
species.
While we do not have a specific agreement in place with The Nature
Conservancy that guarantees a commitment to future management, they
have actively managed the rough popcornflower habitat at their property
(the Popcornswale preserve) since 1995, by monitoring populations,
controlling nonnative and invasive species, managing habitat by
reducing tree cover, mowing, and augmenting the population with
seeding. The Nature Conservancy has continued to manage the
Popcornswale preserve multiple times a year since 1995, and is expected
to continue these efforts.
These and other conservation efforts have increased the number of
protected sites and vastly improved the number of plants in the overall
population (from 7,000 to over 800,000). Currently, 11 of the 18 known
populations throughout the species' range are under Federal, State,
municipal, or land trust protections offering indefinite protection
from habitat conversion to other uses. The remaining 7 populations
(approximately 84 percent of the total number of individuals) do not
have formal commitments for the long-term beneficial management of
rough popcornflower but are benefitting from voluntary management
practices employed by land management agencies and private landowners.
Determination of Rough Popcornflower'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 find that the primary threats to rough popcornflower, since
the time of listing, have been the destruction and/or alteration of
habitat by development and hydrological changes (e.g., wetland fills,
draining, construction), competition from native and nonnative plant
species, impacts due to climate change (e.g., winter flooding, drier
summer soils, and decreased fruit production), and lack of (or
noncompliance with) regulatory mechanisms. The best available
information does not indicate that overcollection (Factor B) or
herbivory (Factor C) are threats to the viability of the rough
popcornflower. Our current analysis also indicates that the habitat
threats (Factor A) and threats from the inadequacy of regulatory
mechanisms (Factor D) have decreased since the time of listing, while
climate change (Factor E) related threats have increased.
Habitat-related threats (destruction and/or alteration of habitat
and competition from native and nonnative plant species), identified as
drivers of rough popcornflower's status, are still present on the
landscape; however, their magnitude and scope have decreased from
historical levels and have been offset by a variety of management and
conservation measures by many conservation partners since the rough
popcornflower was listed as an endangered species (see 65 FR 3866;
January 25, 2000), and these conservation actions continue today (USFWS
2021, p. 25 and appendix 3). Improvements in habitat management
practices and extensive habitat restoration have been implemented,
which have improved population resiliency and redundancy at several
sites. Increased public awareness of the species has resulted in
increased stewardship across lands with rough popcornflower populations
and improved regulatory compliance. Greater understanding and
compliance along with improvements in habitat management practices and
extensive habitat restoration have helped ameliorate threats to the
species, resulting in population increases and greater distribution. A
majority of the rough popcornflower population sites (12 of 18) are
protected by public ownership or managed to benefit the species; with
these site protections and increased public knowledge of the species,
compliance with regulatory mechanisms has increased significantly.
At the time of listing, rough popcornflower was known to exist in
only 8 populations totaling 7,000 plants. There are currently 18 known
populations totaling more than 800,000 plants. Although a majority
(700,000) of the plants are within a single population, there are 17
other populations comprising more than 100,000 rough popcornflower
plants distributed across the range of the species. Although the plants
and populations are not distributed precisely as identified in recovery
plan downlisting criteria (USFWS 2019, pp. 4-6), the population size
(both the
[[Page 99823]]
number of plants and the physical area covered) in two of the three
recovery units and the additional recovery management area exceed the
target population size by unit/area, and six of the populations have
stable and/or increasing trends. Our viability analysis determined that
the species currently has high resiliency, good redundancy, and
sufficient representation (USFWS 2021, pp. 32-41). Thus, after
assessing the best available information, we conclude that the rough
popcornflower is not in danger of extinction throughout all of its
range.
We therefore proceed with determining whether the rough
popcornflower is likely to become endangered within the foreseeable
future throughout all of its range.
The best available information indicates that, at the species
level, the most influential factors affecting rough popcornflower into
the future are habitat-related threats (destruction and/or alteration
of habitat and competition from native and nonnative plant species)
(Factor A) and climate change (Factor E), which will likely cause more
winter flooding, drier summer soils, and decreased fruit production. In
our analysis of future viability (USFWS 2021, pp. 41-47), under
Scenarios A and B, we project the species' resiliency, redundancy, and
representation to be stable or increasing within the next 30 years.
While a continuation of current conservation efforts as modeled under
Scenario B is most likely, 7 of the 18 known populations (approximately
84 percent of the total number of plants) do not have formal
commitments for long-term beneficial management of rough popcornflower
and continued beneficial management is not assured.
Additionally, under Scenario C, we project the species' resiliency,
redundancy, and representation to diminish within the next 30 years.
Although this scenario is considered the least likely to occur,
diminished habitat conditions along with reduced management actions and
agency commitments are plausible and would likely to lead to long-term
demographic declines, reductions in the number of populations, and
reduced genetic diversity.
Thus, after assessing the best available information, we conclude
that rough popcornflower is not currently in danger of extinction but
is likely to become in danger of extinction within the foreseeable
future throughout all of its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
within the foreseeable future throughout all or a significant portion
of its range. The court in Center for Biological Diversity v. Everson,
435 F. Supp. 3d 69 (D.D.C. 2020) (Everson), 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'' (hereafter ``Final
Policy''; 79 FR 37578, July 1, 2014) that provided 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.
Therefore, we proceed to evaluating whether the species is
endangered in a significant portion of its range--that is, whether
there is any portion of the species' range for which both (1) the
portion is significant; and (2) the species is in danger of extinction
in that portion. Depending on the case, it might be more efficient for
us to address the ``significance'' question or the ``status'' question
first. We can choose to address either question first. Regardless of
which question we address first, if we reach a negative answer with
respect to the first question that we address, we do not need to
evaluate the other question for that portion of the species' range.
Following the court's holding in Everson, we now consider whether
there are any significant portions of the species' range where the
species is in danger of extinction now (i.e., endangered). In
undertaking this analysis for rough popcornflower, we choose to address
the status question first--we consider information pertaining to the
geographic distribution of both the species and the threats that the
species faces to identify portions of the range where the species may
be endangered.
We evaluated the range of the rough popcornflower to determine if
the species is in danger of extinction in any portion of its range. The
range of a species can theoretically be divided into portions in an
infinite number of ways. We focused our analysis on portions of the
species' range that may meet the definition of an endangered species.
For rough popcornflower, we considered whether the threats or their
effects on the species are greater in any biologically meaningful
portion of the species' range than in other portions such that the
species is in danger of extinction now in that portion. As discussed
above, we divided the range of the rough popcornflower in several ways
(e.g., populations, recovery units) for the purposes of our viability
analyses. We divide the range into three recovery units (Sutherlin
Creek, Yoncalla Creek, and Callapooya Creek) that correspond to
drainage basins within the Lower North Umpqua system, and represent
groups of populations which share phenotypic similarities and are
potentially genetically similar to one another. This scale is
appropriate for considering whether the species may be in danger of
extinction in any portion of the range.
We examined the following threats: habitat loss and fragmentation,
small population size, native and invasive plant encroachment, fire,
and climate change, including cumulative effects. We considered the
effects of these threats on the rough popcornflower within each of the
three recovery units.
As discussed above, through recovery efforts from multiple
stakeholders, the rough popcornflower has increased to over 883,154
plants in 18 populations. In each recovery unit there are at least two
populations that meet or exceed the resiliency criterion size of 5,000
individuals exceeding a patch size of 5,382 ft\2\ (500 m\2\),
indicating they have a high probability of persistence over the next 30
years.
The rough popcornflower has a current distribution that is
analogous to its historical range in all three recovery units (USFWS
2021, p. 39). Near-term threats are similar for all populations
distributed throughout the recovery units. The rough popcornflower is a
conservation reliant species, and in each recovery unit populations
receive some form of habitat management in the form of mowing, grazing,
prescribed burning, or invasive plant control to address the near-term
threats (USFWS 2021, p. 38).
Given the distribution of resilient populations across recovery
units, the uniformity of the near-term threats to the species within
each unit and ongoing conservation measures addressing those threats,
there is no one recovery unit that has a different status from its
range-wide status. In summary, we found no portion of the rough
popcornflower's range where threats are impacting individuals
differently from how they are affecting the species elsewhere in its
range, or where the biological condition of the species differs from
its condition elsewhere in its range such that the status of the
species in that portion does not differ from any other portion of the
species' range.
[[Page 99824]]
Therefore, no portion of the species' range provides a basis for
determining that the species is in danger of extinction in a
significant portion of its range, and we determine that the species is
likely to become in danger of extinction within the foreseeable future
throughout all of its range. This does not conflict with the courts'
holdings in Desert Survivors v. U.S. Department of the Interior, 321 F.
Supp. 3d 1011, 1070-74 (N.D. Cal. 2018) and Center for Biological
Diversity v. Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz. 2017) because,
in reaching this conclusion, we did not apply the aspects of the Final
Policy, including the definition of ``significant'' that those court
decisions held were invalid.
Determination of Status
Based on the best scientific and commercial data available, we
determine that the rough popcornflower meets the Act's definition of a
threatened species. Therefore, we propose to downlist the rough
popcornflower as a threatened species in accordance with sections 3(20)
and 4(a)(1) of the Act.
Protective Regulations Under Section 4(d) of the Act
Section 4(d) of the Act contains two sentences. The first sentence
states that the Secretary shall issue such regulations as she deems
necessary and advisable to provide for the conservation of species
listed as threatened species. Conservation is defined in the Act to
mean the use of all methods and procedures which are necessary to bring
any endangered species or threatened species to the point at which the
measures provided pursuant to the Act are no longer necessary.
Additionally, the second sentence of section 4(d) of the Act states
that the Secretary may by regulation prohibit with respect to any
threatened species any act prohibited under section 9(a)(1), in the
case of fish or wildlife, or section 9(a)(2), in the case of plants.
With these two sentences in section 4(d), Congress delegated broad
authority to the Secretary to determine what protections would be
necessary and advisable to provide for the conservation of threatened
species, and even broader authority to put in place any of the section
9 prohibitions, for a given species.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, courts have upheld, as a valid
exercise of agency authority, rules developed under section 4(d) that
included limited prohibitions against takings (see Alsea Valley
Alliance v. Lautenbacher, 2007 WL 2344927 (D. Or. 2007); Washington
Environmental Council v. National Marine Fisheries Service, 2002 WL
511479 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do
not address all of the threats a species faces (see State of Louisiana
v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative
history when the Act was initially enacted, ``once an animal is on the
threatened list, the Secretary has an almost infinite number of options
available to [her] with regard to the permitted activities for those
species. [She] may, for example, permit taking, but not importation of
such species, or [she] may choose to forbid both taking and importation
but allow the transportation of such species'' (H.R. Rep. No. 412, 93rd
Cong., 1st Sess. 1973).
The provisions of this species' proposed protective regulations
under section 4(d) of the Act are one of many tools that we would use
to promote the conservation of the rough popcornflower. The proposed
protective regulations would apply only if and when we make final the
reclassification of the rough popcornflower as a threatened species.
Nothing in 4(d) rules change in any way the recovery planning
provisions of section 4(f) of the Act, the consultation requirements
under section 7 of the Act, or the ability of the Service to enter into
partnerships for the management and protection of the rough
popcornflower.
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.
Examples of discretionary actions for the rough popcornflower that
may be subject to consultation procedures under section 7 are
management of Federal lands administered by the BLM, as well as actions
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 actions funded by Federal agencies such as 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.
These requirements are the same for a threatened species regardless
of what is included in its 4(d) rule. Section 7 consultation is
required for Federal actions that ``may affect'' a listed species
regardless of whether take caused by the activity is prohibited or
excepted by a 4(d) rule (under application of a ``blanket rule'' (for
more information, see 89 FR 23919, April 5, 2024) or a species-specific
4(d) rule). A 4(d) rule does not change the process and criteria for
informal or formal consultations and does not alter the analytical
process used for biological opinions or concurrence letters. For
example, as with an endangered species, if a Federal agency determines
that an action is ``not likely to adversely affect'' a threatened
species, it will require the Service's written concurrence (50 CFR
402.13(c)). Similarly, if a Federal agency determines that an action is
``likely to adversely affect'' a threatened species, it will require
formal consultation and the formulation of a biological opinion (50 CFR
402.14(a)). Because consultation obligations and processes are
unaffected by 4(d) rules, we may consider developing tools to
streamline future intra-Service and inter-Agency consultations for
actions that result in forms of take that are not prohibited by the
4(d) rule (but that still require consultation). These tools may
include consultation guidance, online consultation processes via the
Service's digital project planning tool (Information for Planning and
Consultation; <a href="https://ipac.ecosphere.fws.gov/">https://ipac.ecosphere.fws.gov/</a>), template language for
biological opinions, or programmatic consultations.
[[Page 99825]]
Exercising the Secretary's authority under section 4(d) of the Act,
we are applying the protections for the rough popcornflower through our
regulations at 50 CFR 17.71(a). In our April 5, 2024, final rule
revising those regulations (89 FR 23919, at 23922-23923), we found that
applying those regulations as a whole satisfies the requirement in
section 4(d) of the Act to issue regulations deemed necessary and
advisable to provide for the conservation of threatened species. We
have not identified any ways in which a protective regulation for this
threatened species would need to differ from the regulations at 50 CFR
17.71(a) in order to contain the protections that are necessary and
advisable to provide for the conservation of the rough popcornflower.
Therefore, the regulations at 50 CFR 17.71(a) apply. This means that
except as provided in a permit issued pursuant to 50 CFR 17.72, all of
the provisions of 50 CFR 17.61 for endangered plants, except Sec.
17.61(c)(2) through (4), apply to the rough popcornflower, and the
provisions of 50 CFR 17.71(b) concerning exceptions for certain
entities also apply to the species.
Required Determinations
Clarity of the Rule
We are required by E.O.s 12866 and 12988 and by the Presidential
Memorandum of June 1, 1998, to write all rules in plain language. This
means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
Regulations adopted pursuant to section 4(a) of the Act are exempt
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et
seq.) and do not require an environmental analysis under NEPA. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This includes
listing, delisting, and reclassification rules, as well as critical
habitat designations and species-specific protective regulations
promulgated concurrently with a decision to list or reclassify a
species as threatened. The courts have upheld this position (e.g.,
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995) (critical
habitat); Center for Biological Diversity v. U.S. Fish and Wildlife
Service, 2005 WL 2000928 (N.D. Cal. Aug. 19, 2005) (concurrent 4(d)
rule)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), 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 will continue to work with Tribal entities during the
development of a final downlisting determination for the rough
popcornflower.
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 Oregon Fish and Wildlife 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 Oregon
Fish and Wildlife 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, the U.S. Fish and Wildlife Service proposes 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. Amend Sec. 17.12(h) by revising the entry for ``Plagiobothrys
hirtus'' under FLOWERING PLANTS on the List of Endangered and
Threatened Plants to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
[[Page 99826]]
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Scientific name Common name Where listed Status Listing citations and applicable rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flowering Plants
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Plagiobothrys hirtus................ Rough popcornflower.... Wherever found......... T..................... [Federal Register citation when
published as a final rule];
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Gary Frazer,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2024-28351 Filed 12-10-24; 8:45 am]
BILLING CODE 4333-15-P
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