Rule2024-28357
Endangered and Threatened Wildlife and Plants; Endangered Species Status for Swale Paintbrush
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 5, 2024
Effective
January 6, 2025
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), determine endangered species status under the Endangered Species Act of 1973 (Act), as amended, for the swale paintbrush (Castilleja ornata), a flowering plant species from New Mexico within the United States and the states of Chihuahua and Durango in Mexico. This rule extends the Act's protections to the species. We find that designating critical habitat for the swale paintbrush is not prudent.
Full Text
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[Federal Register Volume 89, Number 234 (Thursday, December 5, 2024)]
[Rules and Regulations]
[Pages 96602-96616]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-28357]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2022-0173; FXES1111090FEDR-256-FF09E21000]
RIN 1018-BF79
Endangered and Threatened Wildlife and Plants; Endangered Species
Status for Swale Paintbrush
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
endangered species status under the Endangered Species Act of 1973
(Act), as amended, for the swale paintbrush (Castilleja ornata), a
flowering plant species from New Mexico within the United States and
the states of Chihuahua and Durango in Mexico. This rule extends the
Act's protections to the species. We find that designating critical
habitat for the swale paintbrush is not prudent.
DATES: This rule is effective January 6, 2025.
ADDRESSES: This final rule, supporting materials we used in preparing
this rule (such as the species status assessment report), and comments
we received on the June 8, 2023, proposed rule are available on the
internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No. FWS-R2-ES-
2022-0173.
FOR FURTHER INFORMATION CONTACT: Shawn Sartorius, Field Supervisor,
U.S. Fish and Wildlife Service, New Mexico Ecological Services Field
Office, 2105 Osuna Road NE, Albuquerque, NM 87113; telephone 505-346-
2525. Individuals in the United States who are deaf, deafblind, hard of
hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services. Individuals
outside the United States should use the relay services offered within
their country to make international calls to the point-of-contact in
the United States.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act (16 U.S.C. 1531 et
seq.), a species warrants listing if it meets the definition of an
endangered species (in danger of extinction throughout all or a
significant portion of its range) or a threatened species (likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range). If we determine that a
species warrants listing, we must list the species promptly and
designate the species' critical habitat to the maximum extent prudent
and determinable. We have determined that the swale paintbrush meets
the Act's definition of an endangered species; therefore, we are
listing it as such. Listing a species as an endangered or threatened
species can be completed only by issuing a rule through the
Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq.).
What this document does. This rule lists the swale paintbrush as an
endangered species under the Act.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined that habitat loss and
fragmentation, hydrological alteration, altered fire regimes, effects
from intensive grazing pressure, exotic plant invasion, climate change
impacts (i.e., drought and increased cool season temperatures), and the
cumulative effects of multiple stressors are threats to the swale
paintbrush to the degree that listing it as an endangered species under
the Act is warranted. Additionally, future collection risk may have
compounding impacts on the species' viability.
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary), to the maximum extent prudent and determinable,
concurrently with listing designate critical habitat for the species.
We have determined that designating critical habitat for the swale
paintbrush
[[Page 96603]]
is not prudent due to the threat of collection and/or vandalism.
Previous Federal Actions
Please refer to our June 8, 2023, proposed listing rule (88 FR
37490) for a detailed description of previous Federal actions
concerning the swale paintbrush.
Peer Review
A species status assessment (SSA) team prepared an SSA report for
the swale paintbrush. 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 and recovery actions under the Act, we solicited independent
scientific review of the information contained in the swale paintbrush
SSA report. As discussed in our June 8, 2023, proposed rule (88 FR
37490), we sent the SSA report to four 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> at Docket No. FWS-R2-ES-2022-0173. In preparing the
proposed rule, we incorporated the results of these reviews, as
appropriate, into the SSA report, which is the foundation for the
proposed rule and this final rule. A summary of the peer review
comments and our responses can be found in the proposed rule (88 FR
37490 at 37491-37492, June 8, 2023).
Summary of Changes From the Proposed Rule
Based on information we received during the June 8, 2023, proposed
rule's public comment period, we made the following changes in this
final rule:
(a) We refine our discussion of grazing as a threat under Summary
of Biological Status and Threats, below;
(b) We provide additional discussion under Prudency Determination
for critical habitat, below, to better convey the risks and
consequences of collection events for the species. These additions
provide additional support for our not-prudent critical habitat
determination; and
(c) We update our list of activities that may qualify as ``take''
under section 9 of the Act (see Available Conservation Measures, below)
to minimize redundant wording.
Summary of Comments and Recommendations
In the proposed rule published on June 8, 2023 (88 FR 37490), we
requested that all interested parties submit written comments on the
proposal by August 7, 2023. We also contacted appropriate Federal and
State agencies, Tribal entities, scientific experts and organizations,
and other interested parties and invited them to comment on the
proposal. A newspaper notice inviting general public comment was
published in the Hidalgo County Herald. We did not receive any requests
for a public hearing. All substantive information we received during
the comment period has either been incorporated directly into this
final determination or is addressed below.
Public Comments
(1) Comment: Multiple commenters requested that we designate a
sufficiently large area of critical habitat--hundreds if not thousands
of acres--to obviate the risk of illegal collection and that we
designate at least two areas of unoccupied critical habitat in the
United States--ideally on Federal or public lands--to serve as
reintroduction habitat. They suggested that much of the southern Animas
Valley could be assumed to be potential habitat given that species had
been documented at a second site, the Cowan Ranch site, in 1993, and
the area contains many of the physical or biological features essential
for the conservation of the species (i.e., areas within the elevational
range with the same fine-textured soils, vegetative communities, and
low-gradient swales).
Our response: As we explain in our response to (2) Comment, below,
we maintain that designating occupied areas as critical habitat places
increased risk on the swale paintbrush; thus, designating critical
habitat for the species is not prudent. Accordingly, we do not think it
prudent to designate the area suggested by these commenters.
That said, we acknowledge that there are likely additional areas
throughout the Animas Valley that may contain the physical and
biological features essential for the conservation of the species. As
mentioned in the species' SSA report, we acknowledge that the species
may possibly be extant at the Cowan Ranch site, given its similarity of
climatic and environmental conditions and land-use history to the Gray
Ranch site (Service 2023, pp. 48-49). However, available information
that we have on the species' habitat requirements indicates that the
swale paintbrush may be more reliant on microhabitat features that are
unknown or unmeasured (Service 2023, pp. 99-100).
To aid in the conservation of the species, we have conducted
habitat assessments to identify areas of State and Federal lands in the
vicinity of the known occupied habitat that might contain additional
populations of the species and/or serve as suitable habitat for
potential future reintroduction efforts. Multiple searches for suitable
habitat on public trust lands--across years and surveyors--have failed
to yield additional observations of swale paintbrush or locate habitat
comparable to the Gray Ranch site (Roth 2017, pp. 4-6; Service 2024a,
entire; Service 2024b, entire). Additionally, surveys within areas of
potentially suitable habitat on private land in the vicinity of the
known site have not yielded additional populations of the species (Roth
2017, pp. 4-6; Roth 2020, pp. 3, 5).
When designating critical habitat, the Act and our implementing
regulations require that we distinguish areas that are occupied by the
species from those that are unoccupied by the species at the time of
listing. That means that we cannot designate a large tract of the
Animas Valley as critical habitat for the swale paintbrush without
distinguishing those areas within the designation that are occupied by
the species from those areas unoccupied by the species. To claim that
the entire designation is ``occupied'' would stretch that term beyond
its reasonable definition and imply that we assume the swale paintbrush
is more widely distributed than it is based on the best available
information. Therefore, the approach suggested by the commenters would
not avoid the publication of relatively precise swale paintbrush
locality data, which would put this rare species at risk of illegal
collection and/or vandalism events. These risks are explained further
below, under Prudency Determination.
(2) Comment: Multiple commenters requested that we reconsider our
``not prudent'' determination for critical habitat. The commenters
suggested that a ``not prudent'' determination was not defensible for a
few reasons. First, one of the commenters suggested that we did not
adequately weigh the collection risk against the benefits of critical
habitat designation, citing as support the Natural Resources Defense
Council v. U.S. Dept. of Interior, 113 F.3d 1121 (9th Cir. 1997) court
opinion. Second, multiple commenters stated that there is not a
documented collection risk to swale paintbrush or other plant species;
[[Page 96604]]
the given examples of illegal collection were all from herpetofauna and
were all dated examples. Finally, they stated that the plant has little
to no commercial value and, thus, does not have as much inherent risk
for illegal collection.
Our response: The Act requires the Service to designate critical
habitat to the maximum extent prudent and determinable, and we
recognize that--while the Act provides some limited flexibility to find
that the designation of critical habitat should not be undertaken for a
particular species--not-prudent determinations are generally expected
to be rare (see 88 FR 40764 at 40768; June 22, 2023, and 89 FR 24300 at
24315-24317; April 5, 2024). Our regulations at 50 CFR 424.12 outline a
non-exhaustive list of circumstances in which such designation may not
be prudent, including when the species is threatened by taking or other
human activity and identification of critical habitat can be expected
to increase the degree of such threat to the species.
In the case that we find the designation of critical habitat would
not be prudent, we must state the rationale in our proposed and final
rules. While we must provide our rationale, a weighing analysis--such
as the one suggested by one of the commenters--is conducted in
situations when we are designating critical habitat and considering
whether any areas should be excluded from such designation under
section 4(b)(2) of the Act; weighing analyses are not a component of a
determination of whether designation of critical habitat may not be
prudent. This point was noted in the dissenting opinion of the Natural
Resources Defense Council v. U.S. Dept. of Interior, 113 F.3d 1121,
lawsuit.
In the preamble to both the 2018 proposed rule (83 FR 35193 at
35197, July 25, 2018) and the 2019 final rule (84 FR 45020 at 45040,
August 27, 2019) revising the critical habitat regulations at 50 CFR
424.12 that we administer jointly with the National Marine Fisheries
Service (collectively referred to as the ``Services''), we recognized
the confusion surrounding past regulatory language that indicated that
it would not be prudent to designate critical habitat when
``designation of critical habitat would not be beneficial to the
species.'' As this phrase has been interpreted in ways that we did not
intend, including creating the implication that a balancing analysis
was a required component of prudency determinations under the Act, the
Services removed the ``not be beneficial to the species'' language from
the regulations in 2019 (84 FR 45020 at 45053, August 27, 2019). In the
2023 proposed rule (88 FR 40764 at 40768 and 40774, June 22, 2023) and
the 2024 final rule (89 FR 24300 at 24318; April 5, 2024) to revise the
regulations at 50 CFR 424.12, the Services do not propose to reinstate
the ``not be beneficial to the species'' language.
As noted above, under the Act's implementing regulations, we may
determine that a critical habitat designation is not prudent if the
species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species (50 CFR 424.12(a)(1)(i)). This
portion of the Act's implementing regulations has remained constant
between the 2019 regulatory change (84 FR 45020, August 27, 2019) and
the 2024 regulatory change (89 FR 24300; April 5, 2024). As we state in
the proposed listing rule for swale paintbrush, effects from illegal
collection (removal of plants and damage to habitat) will exacerbate
the degree of risk to the known population of swale paintbrush (88 FR
37490 at 37502-37503, June 8, 2023).
In supporting our not-prudent critical habitat determination in the
proposed listing rule for swale paintbrush, we outlined both documented
instances of harm to similar species in other areas and documented
instances of such harm to other species in the same geographic area (88
FR 37490 at 37502-37503, June 8, 2023). Castilleja species may not be
as desirable as other plant species (e.g., orchids, cacti, and
carnivorous plants); however, commercial value for Castilleja seed is
apparent from online native seed markets. Although we evaluate the
exposure likelihood for illegal collection of swale paintbrush to range
from unlikely to possible, the severity of consequences is moderate to
severe, depending on the intensity of the collection pressure relative
to the abundance of plants in a given year. For instance, the estimated
abundance of the known population in 2017 may have been as few as two
individuals; if collection had occurred within that year, the
implications could have been catastrophic to reproductive effort and/or
seedbank replenishment. In short, given the limited distribution and
abundance of the species, the limited longevity of the plant's seeds in
the seedbank and dependence of the species on the seedbank, and the
high severity of consequences that increased collection pressure could
have on the species and its seedbank, the risks of adverse effects from
collection pose a threat to the species.
Since proposing to designate critical habitat involves publicly
publishing precise locality information and distinguishing occupied
from unoccupied critical habitat units, this risk cannot be mitigated.
Therefore, we maintain the determination that it is not prudent to
designate critical habitat for swale paintbrush. We added additional
discussion pertaining to the risks associated with a critical habitat
designation under Prudency Determination, below.
(3) Comment: One commenter suggested that, as an alternative to
designating critical habitat, we develop and implement a conservation
plan for swale paintbrush sufficient to support a critical habitat
exclusion.
Our response: Although there is not a formal conservation plan in
place that lists swale paintbrush as a covered species, there are
multiple ongoing efforts aimed at benefitting the species, its habitat,
or both. Critical habitat designation is one tool in our toolbox for
enacting conservation and/or recovery of the species, and the lack of a
critical habitat designation does not beget a lack of conservation
effort for the species. As part of our survey and monitoring efforts
for the swale paintbrush--which were initiated prior to proposing to
list this species--we have been working to identify areas of
potentially suitable swale paintbrush habitat within the Animas Valley
that might contain unknown populations and/or serve as potential
reintroduction sites for future conservation or recovery efforts.
Additionally, we have worked with the landowners as well as State,
nongovernmental, and other Federal agency partners to collect and
maintain ex situ seed storage of 77 maternal lines of the species, with
59 lines being maintained at two storage institutions (Service 2023, p.
33). One storage collection is intended for research, grow out, seed
increases, and eventual return to the wild; the other collection is
intended for long-term back-up storage. Finally, although the swale
paintbrush is not listed as a covered species under the Malpai
Borderlands Habitat Conservation Plan (HCP), discussed in more detail
under Conservation Efforts and Regulatory Mechanisms, below, this plan
has the potential to maintain and enhance the grassland ecosystems in
which the swale paintbrush occurs (Service 2023, pp. 31-33). Finally,
during the June 8, 2023, proposed rule's public comment period, we
received information from the landowners stating that they have, and
will, continue to avoid grazing near swale paintbrush populations
during the plant's active season (Animas Foundation 2023, entire).
[[Page 96605]]
Additionally, for a critical habitat exclusion under section
4(b)(2) of the Act, the mechanism through which areas of critical
habitat would be excluded from designation based on conservation plans,
we must first propose to designate critical habitat. As discussed in
other comments, above, and under Prudency Determination, below, we are
not proposing to designate critical habitat due to the risk that doing
so would exacerbate the degree of risk to the known population by
publishing locality information.
(4) Comment: One commenter provided information and suggested that
grazing is a more nuanced influential factor for the swale paintbrush
than was presented in the June 8, 2023, proposed rule. The commenter
also stated that observations from the known population indicate that
the species may be reliant on heavy disturbance.
Our response: In this final rule, we add more nuance to the
discussion of grazing and disturbance under ``Effects of Intensive
Grazing,'' below. While the swale paintbrush requires canopy gaps that
are maintained by periodic disturbance through natural processes (e.g.,
hydrological cycles, seasonally appropriate fires, burrowing, cool
season grazing), intensive disturbance, such as mechanical tillage,
particularly during the active season, is currently a documented threat
for Castilleja species (see 62 FR 31740, June 11, 1997; 88 FR 46088 at
46092, July 19, 2023; Service 2023, pp. 53-82). Thus, the best
available information does not support that the swale paintbrush is
reliant on heavy disturbance, and further research would be needed to
assess the use of anthropogenic disturbance for stimulating swale
paintbrush emergence and growth.
I. Final Listing Determination
Background
A thorough review of the taxonomy, life history, and ecology of the
swale paintbrush is presented in the SSA report (Service 2023, entire).
The swale paintbrush (also known as the glowing Indian paintbrush and
the ornate paintbrush) is an annual species of flowering plant in the
family Orobanchaceae. There is no taxonomic uncertainty surrounding the
validity of swale paintbrush as a species (Egger 2002, pp. 193, 195;
Integrated Taxonomic Information System (ITIS) 2022, unpaginated);
thus, we recognize swale paintbrush as a valid species and, therefore,
a listable entity under the Act.
The swale paintbrush is native to the grassland ecosystems of
Hidalgo County, New Mexico, in the United States and to the eastern
Sierra Madre Occidental in Chihuahua and Durango in Mexico (McIntosh
1994, pp. 329-330). The species has been historically documented from
13 sites: 2 sites within Hidalgo County, New Mexico; 10 sites in
Chihuahua, Mexico; and 1 site in Durango, Mexico. The swale paintbrush
was first observed from a site in Chihuahua, Mexico, in 1887, but not
discovered in New Mexico until 1993 (Service 2023, pp. 6-11). The swale
paintbrush was last observed in Mexico in 1985, and in New Mexico in
2021. Currently, the species is only known to occur at a single site in
the Animas Valley of Hidalgo County, New Mexico: the Gray Ranch site.
Additional surveys within suitable habitat in the vicinity of known
sites have not yielded additional locations for the species (Roth 2017,
p. 3; Roth 2020, pp. 5, 7; Service 2024b, entire). The current status
of swale paintbrush at the other historical sites is unknown.
Given the species' overall rarity, little is known about the
habitat requirements for swale paintbrush. Across the species'
historical range, swale paintbrush has been observed in relatively
level, seasonally wet grassland habitats at elevations ranging from
approximately 1,500-2,300 meters (m) (4,920-7,550 feet (ft)) (Service
2023, pp. 6-20). Species within the genus Castilleja are root
hemiparasites, meaning that plant vigor depends on exploitation of host
plants for carbon, nitrogen, and other nutrients (Heckard 1962, p. 29).
Castilleja plants begin to establish connections with host plant roots
(via structures called haustoria) as seedlings (Heckard 1962, p. 28).
For the swale paintbrush, alkali sacaton (Sporobolus airoides) and blue
grama (Bouteloua gracilis) are thought to be the primary host plants
within the Animas Valley populations.
Swale paintbrush individuals have one or a few erect stems that
stand 20-50 centimeters (cm) (7.9-19.7 inches (in)) in height. Plants
have oblong leaves with strongly wavy leaf margins, and floral bracts
are typically off-white to very pale yellow (New Mexico Rare Plant
Technical Council (NMRPTC) 1999, unpaginated), although reddish phases
of the plant have been observed within herbarium records. Across the
range, aspects of the swale paintbrush's life cycle seem timed to
monsoon season precipitation patterns. Plants germinate between April
and June, flower between late-May and late-August (coincident with
monsoonal rainfall), and set seed in late August through October
(NMRPTC 1999, unpaginated). The longevity of swale paintbrush in the
seedbank is unknown; however, the longevity of surrogate Castilleja
species is up to 5 years in storage and 2 years in the wild (Service
2023, pp. 22-24).
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and the implementing
regulations in title 50 of the Code of Federal Regulations set forth
the procedures for determining whether a species is an endangered
species or a threatened species, issuing protective regulations for
threatened species, and designating critical habitat for endangered and
threatened species. On April 5, 2024, jointly with the National Marine
Fisheries Service, the Service issued a final rule that revised the
regulations in 50 CFR 424 regarding how we add, remove, and reclassify
endangered and threatened species and what criteria we apply when
designating listed species' critical habitat (89 FR 24300). On the same
day, the Service published a final rule revising our protections for
endangered species and threatened species at 50 CFR 17 (89 FR 23919).
These final rules are now in effect and are incorporated into the
current regulations. Our analysis for this final decision applied our
current regulations. Given that we proposed listing this species under
our prior regulations (revised in 2019), we have also undertaken an
analysis of whether our decision would be different if we had continued
to apply the 2019 regulations; we concluded that the decision would be
the same. The analyses under both the regulations currently in effect
and the 2019 regulations are available on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
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.
[[Page 96606]]
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the species' expected response and
the effects of the threats--in light of those actions and conditions
that will ameliorate the threats--on an individual, population, and
species level. We evaluate each threat and its expected effects on the
species, then analyze the cumulative effect of all of the threats on
the species as a whole. We also consider the cumulative effect of the
threats in light of those actions and conditions that will have
positive effects on the species, such as any existing regulatory
mechanisms or conservation efforts. The Secretary determines whether
the species meets the definition of an ``endangered species'' or a
``threatened species'' only after conducting this cumulative analysis
and describing the expected effect on the species.
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 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 listed as an endangered or threatened
species under the Act. However, it does provide the scientific basis
that informs our regulatory decisions, which involve the further
application of standards within the Act and its implementing
regulations and policies.
To assess swale paintbrush viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency is the ability of the species to withstand environmental and
demographic stochasticity (for example, wet or dry, warm or cold
years); redundancy is the ability of the species to withstand
catastrophic events (for example, droughts, large pollution events);
and representation is the ability of the species to adapt to both near-
term and long-term changes in its physical and biological environment
(for example, climate conditions, pathogens). In general, species
viability will increase with increases in resiliency, redundancy, and
representation (Smith et al. 2018, p. 306). Using these principles, we
identified the species' ecological requirements for survival and
reproduction at the individual, population, and species levels, and
described the beneficial and risk factors influencing the species'
viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time, which we then used to inform our regulatory decision.
The following is a summary of the key results and conclusions from
the SSA report; the full SSA report can be found at Docket No. FWS-R2-
ES-2022-0173 on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Summary of Biological Status and Threats
In this discussion, we review the biological condition of the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability. We note that, by using the
SSA framework to guide our analysis of the scientific information
documented in the SSA report, we have 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. For a full
description of our analyses, see the swale paintbrush SSA report
(Service 2023, entire).
Species Needs
The individual, population-level, and species-level needs of the
swale paintbrush are summarized in tables 1 through 3, below. For
additional information, please see the SSA report (Service 2023,
chapter 2).
[[Page 96607]]
Table 1--The Ecological Requisites for Survival and Reproductive Success of Swale Paintbrush Individuals
----------------------------------------------------------------------------------------------------------------
Life stage Requirements Description
----------------------------------------------------------------------------------------------------------------
Seeds--germination...................... Suitable abiotic conditions <bullet> Winter temperatures below 2
degrees Celsius (36 degrees Fahrenheit)
for cold stratification.
........................... <bullet> Suitable warmth, light, and soil
moisture for germination of seeds; cool
season precipitation supports
germination soil moisture.
Seedlings and Vegetative Plants-- Suitable biotic and abiotic <bullet> Adequate monsoonal rainfall June
establishment and growth. conditions through August, the critical rainfall
period for swale paintbrush, for growth
and establishment.
........................... <bullet> Proximity of surrounding plants,
likely alkali sacaton (Sporobolus
airoides) and/or blue grama (Bouteloua
gracilis), for increased water and
nutrient uptake via parasitic haustoria.
........................... <bullet> Lack of herbivory throughout
germination, establishment, and growth
periods.
Flowering Plants--reproduction.......... Pollination <bullet> Presence of suitable pollinators
during the flowering season (June to
September).
........................... <bullet> Lack of herbivory through flower
production (June to September) and seed
set (July to October).
----------------------------------------------------------------------------------------------------------------
Table 2--Population-Level Requisites Necessary for a Healthy Population
of Swale Paintbrush
------------------------------------------------------------------------
Resiliency type Requirements Detail
------------------------------------------------------------------------
Demographic.................... Population growth <bullet> The long-
rate ([lambda]) term [lambda]
needs to be high
enough to rebound
from periodic
population
crashes, i.e., on
average [lambda]
> 1.0.
Population size (N) <bullet>
Sufficiently
large N to
withstand
periodic
stochastic events
and population
crashes.
................... <bullet> The N
required may vary
geographically
across
populations.
Habitat........................ Precipitation <bullet> Adequate
quantity and
timing of cool
season rainfall
to allow for
germination and
establishment.
................... <bullet> Adequate
quantity and
timing of
monsoonal
rainfall during
the critical
rainfall period
of swale
paintbrush (June
through August)
to allow for
germination,
establishment,
growth, survival,
and reproduction.
Habitat <bullet> Presence
of host species,
likely alkali
sacaton, for
hemiparasitic
relationships and
increased uptake
of water and
nutrients.
................... <bullet> Minimal
to no nonnative
vegetation that
outcompetes swale
paintbrush, its
host species, or
pollinator forage
and host plants
for soil
nutrients, light,
and water
resources.
................... <bullet> Absence
of persistent
chemical
contaminants that
interfere with
swale
paintbrush's,
host species', or
pollinator
species'
physiological
functionality.
................... <bullet> Limited
levels of
herbivory across
all life stages.
................... <bullet> Natural
processes, such
as hydrological
cycles and
periodic
disturbances,
that maintain
grassland
integrity (e.g.,
natural fire
return intervals
of low intensity;
seasonally
appropriate fires
that maintain
canopy gaps,
enhance grass and
forb growth, and
prevent
colonization by
woody species).
Pollination <bullet> Presence
of suitable
pollinator(s).
................... <bullet>
Sufficient soil
moisture and
nutrients for
production of
flowers and
nectar resources.
................... <bullet> An
abundance and
diversity of
native flowering
plants within the
habitat to
attract
pollinators and
maintain genetic
connectivity
between swale
paintbrush
patches.
------------------------------------------------------------------------
Table 3--Species-Level Ecology of Swale Paintbrush: Requirements for
Long-Term Viability
[Ability to maintain self-sustaining populations over a biologically
meaningful timeframe]
------------------------------------------------------------------------
Species-level
3 Rs requisites Description
------------------------------------------------------------------------
Resiliency.................... Self-sustaining Self-sustaining
populations populations are
across the demographically,
species' range. genetically, and
physiologically
robust; have
sufficient quantity
of high-quality
habitat; and are
free of, or have
manageable, threats.
Redundancy.................... Sufficient Sufficient
distribution of distribution to
populations to guard against
spread risk. catastrophic events
wiping out portions
of the species'
adaptive diversity
and the species as a
whole (i.e., to
reduce covariance
among populations);
populations spread
out geographically
but also
ecologically
(different
ecological
settings).
Representation................ Maintain adaptive Populations
diversity of the maintained across
species. spatial and
environmental
gradients to
maintain ecological
and genetic
diversity.
[[Page 96608]]
Maintain Maintain evolutionary
evolutionary drivers (gene flow,
processes. natural selection,
genetic drift) to
mimic historical
patterns.
------------------------------------------------------------------------
Risk Factors for the Swale Paintbrush
The primary factors influencing swale paintbrush viability are
habitat loss and fragmentation, hydrological alteration, altered fire
regimes, effects from intensive grazing pressure, exotic plant
invasion, climate change impacts (i.e., drought and increased cool
season temperatures), and the cumulative effects of multiple stressors.
Additionally, future collection risk may have compounding impacts on
the species' viability. The majority of information pertaining to these
threats is based on the New Mexico portion of the species' range;
however, based on visual inspections of aerial imagery and the limited
information we have on the historical sites, we estimate that these are
rangewide threats to this species. These stressors and their effects to
the swale paintbrush are summarized below.
Habitat Loss and Fragmentation
Habitat loss (Factor A) results in mortality of active plants,
within-site seedbank loss, reduction in available habitat, overall
decline in occupied area and abundance, increased edge effects, and
decreased genetic exchange (Oostermeijer 2003, p. 3 and references
therein). Edge effects include reduced wildlife use of and travel
through habitat (and the associated decrease in genetic exchange
through decreased rates of pollinator visitation and/or seed
dispersal), reduced infiltration of precipitation, altered surface and
subsurface hydrology, increased human activities, and exotic plant
invasion (Forman and Alexander 1998, pp. 210, 223; Bhattacharya et al.
2003, p. 37; Raiter et al. 2018, pp. 445-446; Sawyer et al. 2020, p.
934). The combined effects of habitat loss and edge effects can lead to
fragmented and small populations that have reduced genetic exchange,
which leads to reduced reproductive potential and adaptive capacity
(Oostermeijer 2003, p. 1 and reference therein). Major sources of
habitat loss and fragmentation within the swale paintbrush's range
include land conversion to agriculture and development associated with
human habitation and transportation.
Hydrological Alteration
The swale paintbrush relies on cool season precipitation, monsoon
precipitation, and a suitable surface/subsurface hydrology to complete
its life cycle and maintain its seedbank. Thus, this species is
sensitive to hydrological alterations (Factor A), such as artificial
drought and emergence season inundation. Artificial drought occurs when
upslope obstacles to, or diversions of, surface flows starve downslope
areas that would have otherwise received those flows (Raiter et al.
2018, pp. 445-446; Roth 2020, p. 5; Nichols and Degginger 2021,
entire). One report suggests that disturbance altered local hydrology
in the Gray Ranch area, starving previously occupied patches of habitat
and rendering them unsuitable for the species (Roth 2020, p. 5).
Alternately, downslope obstacles to surface flows may permanently or
seasonally flood upslope areas that would have otherwise shed flows to
downslope areas. Prolonged inundation causes forb mortality, reducing
forb cover and increasing graminoid (grass-like) cover and height
(Insausti et al. 1999, pp. 267, 269-271). If inundation interrupts the
species' annual life cycle, existing seedbanks may become depleted and/
or seedbank replenishment may be thwarted, depending on the timing,
intensity, and/or duration of flooding (Insausti et al. 1999, p. 272).
Altered Fire Regime
Fire intensity, frequency, and seasonality (Factor A) have direct
and indirect influences on swale paintbrush. Swale paintbrush relies
heavily on canopy gaps and mineralized soil nutrient inputs for
establishment and growth. Fire fosters these conditions and also
reduces the cover of woody vegetation. It stimulates the growth of
other grasses, including blue grama (which is one of swale paintbrush's
host plants), and forbs (which support pollinators and, hence, swale
paintbrush pollination) (Johnson 2000, unpaginated; Anderson 2003,
unpaginated; Lybbert et al. 2017, p. 1030; Sam 2020, p. 69; Bestelmeyer
et al. 2021, p. 181).
Prehistoric fire return intervals in Madrean ecosystems range from
2.5-10 years. Grasslands, a key ecosystem for the swale paintbrush, are
more likely to convert to shrublands or woodlands when fire return
intervals exceed 10 years. Fire management regimes and grazing
intensity (described below) affect fire frequency, and these habitats
are sensitive to fire suppression and herbivore removal of fine fuels,
which decrease fire frequency and may lead to increased intensity of
fires when they do occur (Kaib et al. 1996, pp. 253, 260; Swetnam and
Baisan 1996, pp. 23, 25; Brown and Archer 1999, pp. 2393-2394; Poulos
et al. 2013, pp. 3-4, 8; NatureServe 2021, unpaginated). Excessive fire
frequency, though less likely to occur, may also have detrimental
impacts on swale paintbrush populations. For example, alkali sacaton's
post-fire recovery time is 2-4 years, and high fire frequency can lower
pollinator abundance and diversity (Johnson 2000, unpaginated; Carbone
et al. 2019, p. 7). In turn, decreased pollinator abundance and
diversity results in decreased pollination rates of swale paintbrush,
which then leads to decreased reproduction and seedbank replenishment.
Uncharacteristic fire seasonality is likely to adversely affect
swale paintbrush. While a spring fire season is characteristic of the
Sierra Madre Occidental and adjacent Madrean ecosystems, a summer fire
season is characteristic of the rest of the desert Southwest (Swetnam
et al. 2001, pp. 5, 8; Poulos et al. 2013, p. 8). Current natural
ignitions for the historical Gray Ranch area are reported to rarely
start before the middle of April or after the middle of July (Brown
1998, p. 250). However, fire prescriptions for the Animas Valley area
are timed to avoid the breeding seasons of several wildlife species,
potentially pushing prescription burns into mid-August, the swale
paintbrush's reproductive season (Malpai Borderlands Group (MBG) 2008,
pp. 63-116). If fire interrupts the species' annual life cycle,
existing seedbanks may become depleted and/or seedbank replenishment
may be thwarted.
[[Page 96609]]
Effects of Intensive Grazing
The swale paintbrush occurs in grasslands that are used for
grazing. Cool season grazing and/or other natural processes help to
create the canopy gaps that this species needs for establishment (see
Species Needs, above). Exclusion of grazing promotes canopy gap
closure, especially under circumstances of reduced fire frequency,
which results in reduced habitat suitability for the swale paintbrush's
germination, establishment, and growth (Service 2023, pp. 22, 28, 51).
However, excessive grazing pressure that results in significant canopy
loss (Factor A) increases the potential for evaporation, erosion, and
nutrient loss (Li et al. 2007, pp. 318, 329-331). These effects can
reduce swale paintbrush productivity both directly and indirectly
through impacts on the productivity of symbiotic and host species
(Pimentel and Kounang 1998, pp. 419-421).
Palatability of species in the genus Castilleja is considered poor
for horses, poor to fair for cattle, and fair to good for sheep (New
Mexico State University n.d., unpaginated). However, the swale
paintbrush's slender stem morphology and erect growth habitat make them
vulnerable to trampling by livestock when habitats are grazed during
the plant's growing season. If grazing or trampling interrupt the
species' annual life cycle, existing seedbanks may become depleted and/
or seedbank replenishment may be thwarted, depending on the timing,
intensity, and/or duration of the grazing. Winter-spring grazing is
least likely to affect the swale paintbrush's survival and reproduction
directly. Excessive herbivory during winter-spring could result in
shifting the fire season further into the growing season, which could
have negative impacts on seedbank replenishment and viability.
Exotic Plant Invasion
Exotic plants (Factor A) can become introduced to, and dispersed
within, grassland habitats by the travel of both humans and animals.
Invasive exotic plants could reduce the availability of canopy gaps
and/or outcompete the swale paintbrush for available gaps, soil
moisture, and soil nutrients, potentially both depleting the existing
seedbank and reducing seedbank replenishment. Co-occurring noxious
plant species also increase the risks of herbicide exposure. For a list
of documented introduced species within the Gray Ranch area, see the
SSA report (Service 2023, pp. 29-30). Introduced species in the
vicinity of historical swale paintbrush sites in Mexico are unknown.
Climate Change Impacts
Climate change (Factor E) has the potential to affect all of the
following factors: drought (and associated increases in grazing
pressure), flood, fire, and vulnerability to exotic plant invasion. The
New Mexico sites are classified as an Apacherian-Chihuahuan Semi-Desert
Grassland and Steppe ecological system within the U.S. Environmental
Protection Agency (EPA) level 3 Madrean Archipelago ecoregion and the
EPA level 4 Madrean Basin Grasslands ecoregion. This system is highly
vulnerable to future climate changes. The remaining historical
collection sites in Mexico are in Chihuahuan Semi-Desert Grassland and
Steppe ecological systems within Sierra Madre Occidental ecoregions,
which are moderately vulnerable to future climate changes.
Projections for the Cloverdale hydrologic unit code (HUC) 08
watershed predict increasing temperatures and less available soil
moisture, which would be akin to prolonged drought. The elevated
temperatures and increased aridity projected across the swale
paintbrush's historical range render these systems vulnerable to
conversion to shrub-steppe (Caracciolo et al. 2016, pp. 2-3;
NatureServe 2021, unpaginated). These changes are likely to impact
swale paintbrush populations at the northern- and southern-most extents
of this species' range, including the verified extant population in New
Mexico.
Increased growing season aridity may stress the germination,
establishment, growth, and reproduction of swale paintbrush plants, and
increased winter temperatures may reduce swale paintbrush's capacity to
overcome seed dormancy before seeds in the soil seedbank become
nonviable. The combined effects of increased soil seedbank loss and
reduced seedbank replenishment lead to smaller population sizes, and,
thus, the species would be more susceptible to environmental and
demographic stochasticity.
Collection Risk
A future threat to the species is the emerging risk of collection
(Factor B). Although no illegal collection events of swale paintbrush
have been documented, other species within the genus Castilleja are
horticulturally desirable. Many Castilleja species are readily
available via online companies, and yellow-bracted species,
aesthetically similar to the swale paintbrush, are marketed as rare.
Currently, due to the species' rarity and limited distribution and
risks of illegal collection to rare species, swale paintbrush locality
data below the county level are not publicly available through online
databases (e.g., SEINet, Natural Heritage New Mexico, New Mexico Rare
Plants website). If the location of known occupied habitat became
publicly available, risk of illegal collection could increase.
There is a history of illegal collection occurring for other
species at or within the near vicinity of the Gray Ranch site. These
collection efforts targeted the Sonoran Desert toad (Incilius (=Bufo)
alvarius; New Mexico Department of Game and Fish 2020, pp. 78-79), New
Mexico ridge-nosed rattlesnake (Crotalus willardi obscurus; Harris Jr.
and Simmons 1975, p. 6; Malpai Borderlands Group 2008, p. 60), and
Mexican hog-nosed snake (Heterodon kennerlyi; Medina 2021, pers.
comm.). For the New Mexico ridge-nosed rattlesnake specifically,
collection over the period of 1961-1974 may have resulted in the loss
of 130 individuals from the population (Service 2008, p. 37), and
researchers encountered 15 illegal collectors from six States during a
single season (Harris Jr. and Simmons 1975, p. 6). The swale paintbrush
is easier to detect and collect than these mobile, camouflaged species.
Thus, given the desirability of paintbrush species for horticultural
use, the increased desirability of rare species, the inability of this
species to evade detection and collection, and the history of illegal
collection in the vicinity of the Gray Ranch, illegal collection is a
potential future emerging threat for this species, especially if the
location of known occupied habitat becomes publicly available. Further,
given the small known extant range and population size of the swale
paintbrush, its annual duration and reliance on frequent seedbank
replenishment, and risks to its seedbank from stochastic events and
other ongoing threats to the species, effects from collection (removal
of plants and damage to habitat) would be deleterious and potentially
catastrophic to the swale paintbrush.
Cumulative Effects
In summary, swale paintbrush is likely adapted to withstand
stochastic stressor events individually and intermittently. However,
the increased intensity of, the increased frequency of, the co-
occurrence or consecutive occurrence of, and the synergistic effects
between stochastic stressor events increase the risks to this species.
Given the swale paintbrush's annual duration, reliance on frequent
seedbank
[[Page 96610]]
replenishment, and low seed longevity, as few as 2 consecutive years of
adverse environmental conditions or human-caused or natural adverse
stochastic events could have catastrophic consequences for this
species.
Current Condition
The swale paintbrush was historically documented from 13 sites in
the United States and Mexico: 2 sites in the Animas Valley of Hidalgo
County, New Mexico, and 11 sites in the eastern Sierra Madre Occidental
of Chihuahua and northern Durango in Mexico. Currently, only one known
occupied site--the Gray Ranch site--exists within the Animas Valley of
Hidalgo County, New Mexico, and the species was last observed at this
site in 2021. The last observations of historical sites were in 1993 in
New Mexico, and in 1985 in Mexico.
We assessed the swale paintbrush's current condition using a two-
pronged approach. First, for all known occupied and historically
collected swale paintbrush sites, we derived the amount and intensity
of disturbed area and currently protected areas within the vicinity of
each site using aerial imagery from the period of 2000 to 2020. Then,
we used these data to estimate the possibility of swale paintbrush
occupancy within the vicinity of the historical location and assigned
each site into one of four categories: (1) known extant, (2) possibly
extant, (3) possibly extirpated, and (4) presumed extirpated. Known
extant means that the population has been observed within the last
decade. Possibly extant means that the site is only known from
herbarium records but has a reasonable potential for rediscovery;
evidence of habitat loss or degradation is not substantial enough to
presume complete loss of swale paintbrush habitat since the time of
collection. Possibly extirpated means that the population is known only
from herbarium records and has a low potential for rediscovery;
evidence of habitat loss or degradation is substantial enough that loss
of the species at the site is possible. Presumed extirpated means that
the population is only known from herbarium records and has a very low
potential for rediscovery; evidence of habitat loss or alteration is
significant enough to presume complete loss of suitable habitat since
the time of collection.
Second, we conducted a more detailed assessment of the resiliency
for the known occupied site at the Gray Ranch in the Animas Valley.
Briefly, we considered the demographic factors (population abundance,
occupied area, and count of patches within the last 2 years) and
habitat factors (surface disturbance, herbicide exposure, fire regime,
grazing regime, inundation seasonality, growing season canopy cover,
and precipitation history). We assigned each factor into three
condition categories; (1) high (factor values that are compatible with
stable to increasing populations); (2) moderate (factor values that
contribute to minimal rates of decline), or (3) low (factor values that
contribute to high rates of decline). Our methodology and evaluations
of viability are described in more detail in the swale paintbrush SSA
report (Service 2023, chapter 4).
Based on our assessment of the swale paintbrush's current
conditions across all sites, one site (the Gray Ranch site) is known
extant, four sites ranked as possibly extant, six sites ranked as
possibly extirpated, and two sites ranked as presumed extirpated. Of
the four possibly extant sites, swale paintbrush plants were last
observed at the sites in 1899, 1903, 1979, and 1993. Although
potentially suitable habitat may remain at some of the historical
sites, particularly the four possibly extant sites, the size and
abundance (i.e., resiliency) of the historical sites are unknown, and
we cannot reasonably assume anything about the status of the species at
these sites. Thus, the swale paintbrush has no verifiable redundancy
and very limited representation throughout its known range.
Based on our detailed assessment of current condition, the swale
paintbrush has moderate to high resiliency at the Gray Ranch site. The
most recent survey in September 2021 documented a minimum abundance of
6,000 plants--higher than our range of provisional minimum viable
population sizes (1,500-5,000 plants)--distributed across 2 patches and
11 hectares (28 acres) of habitat in the Animas Valley. Generally, the
site has moderate amounts of surface disturbance that would have
limited influence on pollinator visitation rates. There has been no
recent herbicide exposure within 300 meters (984 feet) of swale
paintbrush patches within the last 15 years. Grazing during the
species' active season within recent years has been avoided, and the
disturbance regime (fire return intervals, inundation seasonality,
grazing regime) combined with the recent precipitation history, have
maintained favorable canopy cover that allows for the swale
paintbrush's growth, establishment, and recent seedbank replenishment
within the core of the population area.
Although the Gray Ranch site is considered to have moderate to high
resiliency currently, the small area that the species is known to
occupy increases its risk of extirpation due to catastrophic events.
The swale paintbrush is at risk of impacts from the cumulative impacts
of multiple stressors because it is an annual species with a
provisional seedbank viability of 2 years in the wild and frequent
replenishment of the seedbank is essential to population persistence.
Replenishment of the seedbank with viable seeds requires flower
production, successful pollination, and ovule maturation, all of which
are impacted by stochastic and catastrophic events such as: habitat
loss and fragmentation (Factor A), hydrological alteration (Factor A),
altered fire regimes (Factor A), effects from intensive grazing
pressure (Factor A), exotic plant invasion (Factor A), climate change
impacts (i.e., drought and increased cool season temperatures; Factor
E), and the cumulative effects of multiple stressors. Additionally,
future collection risk (Factor B) may have compounding impacts on the
species' viability.
Drought is the primary threat to the species, as increased
frequency, intensity, and/or duration of drought can lead to decreased
swale paintbrush survival through direct (e.g., drought stress,
trampling, or herbivory) and indirect (e.g., increased grazing pressure
within the habitat, increased fire risk, delayed post-fire recovery)
mortality. Although grazing and fires help maintain canopy gaps,
grazing and/or fires during the growing season can result in decreased
swale paintbrush survival. Currently, grazing during the growing season
is generally avoided at the Gray Ranch site; however, this site is used
as a grass-banking pasture and may experience increased grazing
pressure during times of drought. Grazing during the active season can
result in trampling and mortality of the species. Fires during the
growing season result in swale paintbrush mortality and, depending on
the duration and intensity of the fire, prolonged recovery times for
native vegetation. Decreased recovery times leave soils vulnerable to
evaporation, erosion, nutrient loss, and invasive species
establishment, all of which lead to decreased swale paintbrush
survival.
Taken altogether, the swale paintbrush has moderate to high
resiliency within 1 population and unknown resiliency across the other
12 historical sites. Although our analysis reflects our best assessment
of the current conditions of disturbance at or in the vicinity of our
estimates of historical site locations, the status of historically
collected sites at Cowan Ranch of the Animas Valley and in the eastern
Sierra Madre Occidental of Mexico is unknown. Rangewide,
[[Page 96611]]
specimens were collected from 1887-2021, with the most recent record
from Mexico being collected in 1985. Additionally, outside of the known
extant New Mexico site (the Gray Ranch site), there have been no
reported estimates of abundance with the exception of qualitative
reports of ``occasional'' for the distribution at the Keil 13388 site
and ``few plants'' for Palmer 320 (Palmer 1906, unpaginated; Keil 1978,
unpaginated; Service 2023, p. 19). Thus, we cannot reasonably conclude
anything about the health or resiliency of any site except for the Gray
Ranch site. Accordingly, the swale paintbrush has limited to no
redundancy, depending on the status of the species at the historical
sites. Even if the swale paintbrush remains extant at sites outside of
Gray Ranch, the majority of sites are isolated, and there is limited
potential for interpopulation rescue in the event of local
extirpations. Finally, the swale paintbrush has limited representation.
The Gray Ranch site exists at the northern periphery of the species'
range and reflects only a small portion of the historical genetic and
ecological diversity of the species.
Future Condition
As part of the SSA, we also developed future condition scenarios to
capture the range of uncertainties regarding future threats and the
projected responses by the swale paintbrush. Our future condition
assessments considered the projected impacts of increased habitat
disturbance and climate changes across the swale paintbrush's
historical range. Specifically, we considered the upper and lower
bounds of plausible impacts of environmental variables related to
aridity during the growing and reproductive seasons and seed chilling
and cold stratification during the cool season. Because we determined
that the current condition of the swale paintbrush is consistent with
an endangered species (see Determination of Swale Paintbrush's Status,
below), we are not presenting the results of the future scenarios in
this rule. Please refer to the SSA report (Service 2023, chapter 5) for
the full analysis of future scenarios.
Conservation Efforts and Regulatory Mechanisms
Below is a brief description of conservation measures and
regulatory mechanisms currently in place. Please see the SSA report for
a more detailed description (Service 2023, chapter 3).
The swale paintbrush is listed as an endangered species by the
State of New Mexico. In New Mexico, the swale paintbrush exists on
lands managed for livestock production in an ecologically responsible
manner by the Animas Foundation (Brown 1998, p. 248). The Nature
Conservancy (TNC), the former landowners of the Gray Ranch site,
retains a conservation easement prohibiting development on the lands
formerly known as the Gray Ranch (TNC 2022, unpaginated). While the
easement does not ensure that range improvements will avoid adverse
effects to the swale paintbrush, it ensures that the covered areas will
remain open space.
The Animas Foundation is a member of the Malpai Borderlands Group,
a private, nonprofit organization that is dedicated to maintaining or
increasing rangeland health and the viability of traditional
livelihoods that maintain rangelands as open space (Malpai Borderlands
Group 1994, p. 2; Brown 1998, p. 249; Malpai Borderlands Group 2008,
pp. 1-2). Malpai Borderlands Group activities related to use,
maintenance, and enhancement of rangelands fall within the scope of a
habitat conservation plan (HCP) for all privately owned and State-trust
rangelands in the Malpai Borderlands of Southern Arizona and New
Mexico. Although the swale paintbrush is not a covered species under
this plan, the species may benefit from the plan's covered activities
and associated conservation measures (Service 2023, pp. 35-36, table 3-
1). These covered activities and associated conservation measures have
the potential to maintain and enhance swale paintbrush habitat by
restoring fire, minimizing erosion, and controlling invasive and exotic
plant species. The Animas Foundation's participation in the HCP, beyond
the grassbanking program, is unknown.
Finally, we have partnered with the Animas Foundation, the State of
New Mexico, and Albuquerque Bio Park to conduct and maintain ex situ
seed collections of the swale paintbrush from the Gray Ranch site.
Currently, 77 maternal lines have been collected and retained in
offsite storage institutions for germination studies, grow out, seed
increase, and potential reintroduction efforts.
Determination of Swale Paintbrush's Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines an ``endangered species'' as a
species in danger of extinction throughout all or a significant portion
of its range, and a ``threatened species'' as a species likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether a species meets the definition of endangered species
or threatened species because of any of the following factors: (A) The
present or threatened destruction, modification, or curtailment of its
habitat or range; (B) overutilization for commercial, recreational,
scientific, or educational purposes; (C) disease or predation; (D) the
inadequacy of existing regulatory mechanisms; or (E) other natural or
manmade factors affecting its continued existence.
Status Throughout All of Its Range
After evaluating threats to the species and assessing the
cumulative effect of the threats under the Act's section 4(a)(1)
factors, we found that the swale paintbrush's distribution has declined
from historical conditions. The swale paintbrush was documented from 13
sites historically: 2 sites in the Animas Valley of Hidalgo County, New
Mexico, and 11 sites in the eastern Sierra Madre Occidental of
Chihuahua and northern Durango in Mexico. Of the 13 historical sites,
only 1 site--the Gray Ranch site within the Animas Valley of Hidalgo
County, New Mexico--is currently known to be extant. Swale paintbrush
plants were last observed at the Gray Ranch site in September of 2021,
with a minimum abundance of 6,000 plants distributed across 11 hectares
(28 acres) of habitat. Of the 12 other historical sites, our analyses
found that four sites ranked as ``possibly extant,'' six sites ranked
as ``possibly extirpated,'' and two sites ranked as ``presumed
extirpated.'' Although potentially suitable habitat may remain at some
of the historical sites, the size and abundance (i.e., resiliency) of
the historical sites is unknown, and we do not have information that
these sites are resilient, stable, or able to contribute to the
viability of the species.
Although the Gray Ranch site is considered to have moderate to high
resiliency currently--based on the most recent abundance estimate
exceeding the minimum viable population size and habitat conditions of
the Animas Valley being generally favorable--the small area that the
species is known to occupy increases its risk of extirpation due to
catastrophic events. The swale paintbrush is at risk from the
cumulative impacts of multiple stressors because it is an annual
species with a provisional seedbank viability of 2 years and frequent
replenishment of the seedbank is essential to population persistence.
Replenishing the seedbank
[[Page 96612]]
with viable seeds requires flower production, successful pollination,
and ovule maturation, all of which are impacted by stochastic and
catastrophic events such as habitat loss and fragmentation (Factor A),
hydrological alteration (Factor A), altered fire regimes (Factor A),
effects from intensive grazing pressure (Factor A), exotic plant
invasion (Factor A), climate change impacts (i.e., drought and
increased cool season temperatures; Factor E), and the cumulative
effects of multiple stressors. Additionally, future collection risk
(Factor B) may have compounding impacts on the species' viability.
Drought is the primary threat to the species, as increased
frequency, intensity, and/or duration of drought can lead to decreased
swale paintbrush survival through direct and indirect mortality.
Although grazing and fires can help maintain canopy gaps, grazing and/
or fires during the growing season can result in decreased swale
paintbrush survival. Currently, grazing during the growing season is
avoided at the Gray Ranch site; however, this site is used as a grass-
banking pasture and may experience increased grazing pressure during
times of drought. Grazing during the active season can result in
trampling and mortality of the species. Fires during the growing season
result in swale paintbrush mortality and, depending on the duration and
intensity of the fire, prolonged recovery times for native vegetation.
Decreased recovery times leave soils vulnerable to evaporation,
erosion, nutrient loss, and invasive species establishment, all of
which lead to decreased swale paintbrush survival. Thus, decreased
swale paintbrush survival results in decreased seedbank replenishment
and, by extension, decreased seedbank viability, which increases the
species' risk of extinction.
Overall, the swale paintbrush has limited viability due to its
limited resiliency, lack of redundancy, and limited representation at
the species level. The species currently occurs at a single site at the
northern periphery of its known historical range and is vulnerable to
the impacts of catastrophic events. Given its limited distribution, the
species likely reflects only a small portion of its historical genetic
and ecological diversity; thus, the swale paintbrush has limited
capacity to adapt to long-term environmental changes (i.e., limited
representation). Even if the swale paintbrush is extant at sites
outside of the Gray Ranch, the majority of these potentially extant
historical sites are isolated, and, therefore, there is limited
potential for interpopulation rescue in the event of local
extirpations.
Accordingly, we find that the swale paintbrush is presently in
danger of extinction throughout all of its range based on small
population size and the species' risk from a number of contemporary
threats. The risk of extinction is high due to a small population with
no known potential for recolonization from nearby sources (no
redundancy) and the species having limited viability within the
seedbank. We do not find that a threatened status is warranted for the
swale paintbrush because the species occupies a small geographic range
that is currently vulnerable to stressors with the potential for
catastrophic synergistic consequences. Thus, the species' limited
resiliency, lack of redundancy, and limited representation currently
place the species in danger of extinction, and these contemporary
threats are only projected to increase in frequency, severity, extent,
and/or duration into the future.
Thus, after assessing the best available information, we determine
that the swale paintbrush is in danger of extinction throughout all of
its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
within the foreseeable future throughout all or a significant portion
of its range. We have determined that the swale paintbrush is in danger
of extinction throughout all of its range and accordingly did not
undertake an analysis of any significant portions of its range. Because
the swale paintbrush warrants listing as endangered throughout all of
its range, our determination does not conflict with the decision in
Center for Biological Diversity v. Everson, 435 F. Supp. 3d 69 (D.D.C.
2020), because that decision related to significant portion of the
range analyses for species that warrant listing as threatened, not
endangered, throughout all of their range.
Determination of Status
Our review of the best available scientific and commercial
information indicates that the swale paintbrush meets the Act's
definition of an endangered species. Therefore, we are listing the
swale paintbrush as an endangered species in accordance with sections
3(6) and 4(a)(1) of the Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition as a listed
species, planning and implementation of recovery actions, requirements
for Federal protection, and prohibitions against certain practices.
Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies,
including the Service, and the prohibitions against certain activities
are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The goal of this process is to restore listed
species to a point where they are secure, self-sustaining, and
functioning components of their ecosystems.
The recovery planning process begins with development of a recovery
outline made available to the public soon after a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions while a recovery plan is being developed.
Recovery teams (composed of species experts, Federal and State
agencies, nongovernmental organizations, and stakeholders) may be
established to develop and implement recovery plans. The recovery
planning process involves the identification of actions that are
necessary to halt and reverse the species' decline by addressing the
threats to its survival and recovery. The recovery plan identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Revisions of the plan may
be done to address continuing or new threats to the species, as new
substantive information becomes available. The recovery outline, draft
recovery plan, final recovery plan, and any revisions will be available
on our
[[Page 96613]]
website as they are completed (<a href="https://www.fws.gov/program/endangered-species">https://www.fws.gov/program/endangered-species</a>), or from our New Mexico Ecological Services Field Office (see
FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their ranges may occur primarily or solely on
non-Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
When this rule is effective (see DATES, above), funding for
recovery actions will be available from a variety of sources, including
Federal budgets, State programs, and cost-share grants for non-Federal
landowners, the academic community, and nongovernmental organizations.
In addition, pursuant to section 6 of the Act, the State of New Mexico
will be eligible for Federal funds to implement management actions that
promote the protection or recovery of the swale paintbrush. Information
on our grant programs that are available to aid species recovery can be
found at: <a href="https://www.fws.gov/service/financial-assistance">https://www.fws.gov/service/financial-assistance</a>.
Please let us know if you are interested in participating in
recovery efforts for the swale paintbrush. Additionally, we invite you
to submit any new information on this species whenever it becomes
available and any information you may have for recovery planning
purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7 of the Act is titled, ``Interagency Cooperation,'' and it
mandates all Federal action agencies to use their existing authorities
to further the conservation purposes of the Act and to ensure that
their actions are not likely to jeopardize the continued existence of
listed species or adversely modify critical habitat. Regulations
implementing section 7 are codified at 50 CFR part 402.
Section 7(a)(2) states that each Federal action agency shall, in
consultation with the Secretary, ensure that any action they authorize,
fund, or carry out is not likely to jeopardize the continued existence
of a listed species or result in the destruction or adverse
modification of designated critical habitat. Each Federal agency shall
review its action at the earliest possible time to determine whether it
may affect listed species or critical habitat. If a determination is
made that the action may affect listed species or critical habitat,
formal consultation is required (50 CFR 402.14(a)), unless the Service
concurs in writing that the action is not likely to adversely affect
listed species or critical habitat. At the end of a formal
consultation, the Service issues a biological opinion, containing its
determination of whether the Federal action is likely to result in
jeopardy or adverse modification.
Examples of discretionary actions for the swale paintbrush that may
be subject to consultation procedures under section 7 are land
management or other landscape-altering activities on Federal lands
administered by the Bureau of Land Management and the U.S. Forest
Service, as well as actions on State, Tribal, local, or private lands
that require a Federal permit (such as a permit from the U.S. Army
Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C.
1251 et seq.) or a permit from the Service under section 10 of the Act)
or that involve some other Federal action (such as funding from the
Federal Highway Administration, Federal Aviation Administration, or the
Federal Emergency Management Agency). Federal actions not affecting
listed species or critical habitat--and actions on State, Tribal,
local, or private lands that are not federally funded, authorized, or
carried out by a Federal agency--do not require section 7 consultation.
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.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered plants.
The prohibitions of section 9(a)(2) of the Act, and the Service's
implementing regulations codified at 50 CFR 17.61, make it illegal for
any person subject to the jurisdiction of the United States to commit,
to attempt to commit, to solicit another to commit, or to cause to be
committed any of the following acts with regard to any endangered
plant: (1) import into, or export from, the United States; (2) remove
and reduce to possession from areas under Federal jurisdiction;
maliciously damage or destroy on any such area; or remove, cut, dig up,
or damage or destroy on any other area in knowing violation of any law
or regulation of any State or in the course of any violation of a State
criminal trespass law; (3) deliver, receive, carry, transport, or ship
in interstate or foreign commerce, by any means whatsoever and in the
course of a commercial activity; or (4) sell or offer for sale in
interstate or foreign commerce. Certain exceptions to these
prohibitions apply to employees or agents of the Service, other Federal
land management agencies, and State conservation agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered plants under certain circumstances. Service
regulations governing permits for endangered plants are codified at 50
CFR 17.62, and general Service permitting regulations are codified at
50 CFR part 13. With regard to endangered plants, a permit may be
issued for scientific purposes or for enhancing the propagation or
survival of the species. The statute also contains certain exemptions
from the prohibitions, which are found in sections 9 and 10 of the Act.
It is the policy of the Services, as published in the Federal
Register on July 1, 1994 (59 FR 34272), to identify, to the extent
known at the time a species is listed, specific activities that will
not be considered likely to result in violation of section 9 of the
Act. To the extent possible, activities that will be considered likely
to result in violation of section 9 of the Act will also be identified
in as specific a manner as possible. The intent of this policy is to
increase public awareness of the effect of a listing on proposed and
ongoing activities within the range of the species.
As mentioned above, certain activities that are prohibited under
section 9 may be permitted under section 10 of the Act. In addition, to
the extent currently known, the following activities will not be
considered likely to result in violation of section 9 of the Act:
(1) Normal residential landscaping activities on non-Federal lands
that do not occur within known swale paintbrush habitat; and
(2) Cool season livestock grazing (November to April) that is
conducted in a manner that does not result in degradation of swale
paintbrush habitat.
This list is intended to be illustrative and not exhaustive;
additional activities that will not be considered likely to result in
violation of section 9 of the Act may be identified during coordination
with the local field office, and in some instances (e.g., with new
information), the Service may conclude that one or more activities
identified here will be
[[Page 96614]]
considered likely to result in violation of section 9.
At this time, we are unable to identify specific activities that
will be considered likely to result in a violation of section 9 of the
Act beyond what is already clear from the descriptions of the
prohibitions in section 9(a)(2) of the Act and at 50 CFR 17.61.
Questions regarding whether specific activities would constitute a
violation of section 9 of the Act should be directed to the New Mexico
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
II. Critical Habitat
Background
Section 4(a)(3) of the Act requires that, to the maximum extent
prudent and determinable, we designate a species' critical habitat
concurrently with listing the species. Critical habitat is defined in
section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that each Federal action agency ensure, in
consultation with the Service, that any action they authorize, fund, or
carry out is not likely to result in the destruction or adverse
modification of designated critical habitat. The designation of
critical habitat does not affect land ownership or establish a refuge,
wilderness, reserve, preserve, or other conservation area. Such
designation also does not allow the government or public to access
private lands. Such designation does not require implementation of
restoration, recovery, or enhancement measures by non-Federal
landowners. Rather, designation requires that, where a landowner
requests Federal agency funding or authorization for an action that may
affect an area designated as critical habitat, the Federal agency
consult with the Service under section 7(a)(2) of the Act. If the
action may affect the listed species itself (such as for occupied
critical habitat), the Federal action agency would have already been
required to consult with the Service even absent the critical habitat
designation because of the requirement to ensure that the action is not
likely to jeopardize the continued existence of the species. Even if
the Service were to conclude after consultation that the proposed
activity is likely to result in destruction or adverse modification of
the critical habitat, the Federal action agency and the landowner are
not required to abandon the proposed activity, or to restore or recover
the species; instead, they must implement ``reasonable and prudent
alternatives'' to avoid destruction or adverse modification of critical
habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific data available, those physical or biological features that
are essential to the conservation of the species (such as space, food,
cover, and protected habitat).
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report and information developed during the
listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
[[Page 96615]]
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and (3) the prohibitions found in section 9 of the Act.
Federally funded or permitted projects affecting listed species outside
their designated critical habitat areas may still result in jeopardy
findings in some cases. These protections and conservation tools will
continue to contribute to recovery of this species. Similarly, critical
habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, HCPs, or other species
conservation planning efforts if new information available at the time
of these planning efforts calls for a different outcome.
Prudency Determination
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary shall designate critical habitat at the
time the species is determined to be an endangered or threatened
species. On April 5, 2024, we published a final rule that revised our
regulations at 50 CFR part 424 to further clarify when designation of
critical habitat may not be prudent (89 FR 24300). Our regulations (50
CFR 424.12(a)(1)) state that designation of critical habitat may not be
prudent in circumstances such as, but not limited to, the following:
(i) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(ii) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species;
(iii) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States; or
(iv) No areas meet the definition of critical habitat.
In the proposed listing rule, we determined that designation of
critical habitat for swale paintbrush would not be prudent (88 FR 37490
at 37502-37503, June 8, 2023). We invited public comment and requested
information on our rationale that designation of critical habitat was
not prudent based on circumstance (i). Comments we received during the
public comment period indicated some disagreement that collection is a
threat to the species, which is described and addressed in further
detail in the Public Comments section, above. After review and
consideration of the comments we received, we now make a final
determination that the designation of critical habitat for the swale
paintbrush is not prudent, in accordance with 50 CFR 424.12(a)(1). Our
not prudent finding for the swale paintbrush is based on the threat of
collection--circumstance (i)--which is identical in the 2019
regulations (under which the proposed rule published) and the 2024
regulations (under which this final rule is being published); thus,
there is no functional or operation difference in application or
outcome. Analysis under both the 2019 and 2024 regulation provisions is
identical.
In our June 8, 2023, proposed rule, we noted that because of the
small known extant range and population size of this species, its
annual duration and reliance on frequent seedbank replenishment, and
risks to its seedbank from stochastic events and other ongoing threats
to the species, effects from illegal collection (removal of plants and
damage to habitat) would be deleterious to the swale paintbrush (88 FR
37490 at 37502-37503, June 8, 2023).
Although no known illegal collection events of the swale paintbrush
have been documented, other species within the genus Castilleja are
horticulturally desirable. Seeds of many Castilleja species are readily
available via online companies, and yellow-bracted species,
aesthetically similar to the swale paintbrush, are marketed as rare.
There is a history of illegal collection occurring for other species at
or within the near vicinity of the Gray Ranch site. These collection
efforts involved the Sonoran Desert toad (New Mexico Department of Game
and Fish 2020, pp. 78-79), New Mexico ridge-nosed rattlesnake (Harris
Jr. and Simmons 1975, p. 6; Malpai Borderlands Group 2008, p. 60), and
Mexican hog-nosed snake (Medina 2021, pers. comm.). The swale
paintbrush is easier to detect and collect than these mobile,
camouflaged species. Illegal collection and/or vandalism events are
difficult to document, especially in the case of rare plant species,
but they are suspected as a possible cause for the declines of many
rare plant species (Krigas et al. 2014, p. 86; Margulies et al. 2019,
pp. 174, 178; Lavorgna et al. 2020, p. 28).
Additionally, swale paintbrush locality data are not published
within online databases due to the species' rarity and limited
distribution (Gilbert and Pearson 2021, unpaginated; iNaturalist 2023,
unpaginated; Natural Heritage New Mexico n.d., unpaginated).
Designation of critical habitat requires the publication of maps and a
narrative description of specific critical habitat areas in the Federal
Register. The degree of detail necessary to properly designate critical
habitat is considerably greater than the general descriptions of
location provided in this rule to list the swale paintbrush as an
endangered species. We find that the publication of maps and
descriptions outlining the locations could further facilitate
unauthorized collection and/or vandalism by providing currently
unavailable precise location information.
Furthermore, we assessed the risks associated with a critical
habitat designation for the swale paintbrush, and some of them would be
catastrophic. The swale paintbrush is an annual plant species, and
Castilleja seed longevity is not documented at greater than 2 years in
the wild; thus, frequent replenishment of the seedbank is essential to
population persistence (Service 2023, p. 22). As few as 2 consecutive
years of adverse environmental conditions or human-caused or natural
adverse stochastic events could lead to population extirpation for this
species (Service 2023, p. 30). Factors that thwart seedbank
replenishment include growing season inundation, fire, or grazing/
trampling; vegetative competition; drought; and illegal collection
(Service 2023, pp. 28-31, 34, 95). These factors can occur
simultaneously or consecutively, and synergistic interactions between
these threats are possible (Service 2023, p. 30). Given the small known
extant range--approximately 11 hectares (28 acres)--and population size
of the species, combined with risks to its seedbank from stochastic
events and other ongoing threats to the species, the swale paintbrush
is exceptionally vulnerable to adverse effects from illegal collection
(including removal of swale paintbrush seeds from the wild) and/or
vandalism. Such adverse effects include genetic effects (loss of
genetic diversity, evolutionary potential, and adaptive capacity) and
habitat effects (changes in habitat quality) in addition to demographic
effects (reduced seed bank abundance and, therefore, reduced population
abundance). The actual severity of impact from a collection event
depends on how a collection is conducted as well as the population
abundance and fecundity at the site in years preceding, during, and
following the collection event. While the consequences of any given
collection event are unpredictable, increased collection pressure--
combined with the
[[Page 96616]]
impacts of other, ongoing stressors--is likely to result in increased
risk of population extirpation and, thus, species extinction in the
wild.
Overall, given the small known extant range and population size of
this species, its annual duration and reliance on frequent seedbank
replenishment, and risks to its seedbank from stochastic events and
other ongoing threats to the species, effects from illegal collection
(removal of plants and damage to habitat) would be deleterious to the
swale paintbrush. Therefore, in accordance with 50 CFR 424.12(a)(1), we
determine that designation of critical habitat is not prudent for the
swale paintbrush.
Required Determinations
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, May 4, 1994), Executive Order 13175
(Consultation and Coordination with Indian Tribal Governments), the
President's memorandum of November 30, 2022 (Uniform Standards for
Tribal Consultation; 87 FR 74479, December 5, 2022), and the Department
of the Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with federally recognized
Tribes and Alaska Native Corporations (ANCs) on a government-to-
government basis. In accordance with Secretary's Order 3206 of June 5,
1997 (American Indian Tribal Rights, Federal-Tribal Trust
Responsibilities, and the Endangered Species Act), we readily
acknowledge our responsibilities to work directly with Tribes in
developing programs for healthy ecosystems, to acknowledge that Tribal
lands are not subject to the same controls as Federal public lands, to
remain sensitive to Indian culture, and to make information available
to Tribes. We contacted all Tribal entities with documented cultural
interests in Hidalgo County, New Mexico--the Hopi Tribe, the White
Mountain Apache Tribe, the Mescalero Apache Tribe, and the Fort Sill
Apache Tribe--to provide them notice of our status review; solicit
information and invite their participation in the SSA process; and
inform them of the publication of our June 8, 2023, proposed rule and
its open public comment period. We did not receive any information from
Tribal entities during the SSA process or during our June 8, 2023,
proposed rule's public comment period. We will continue to coordinate
with Tribal entities throughout the recovery process for the swale
paintbrush.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a> and upon request from
the New Mexico Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this rule are the staff members of the Fish
and Wildlife Service's Species Assessment Team and the New Mexico
Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
unless otherwise noted.
0
2. In Sec. 17.12, in paragraph (h), amend the List of Endangered and
Threatened Plants by adding an entry for ``Castilleja ornata'' in
alphabetical order under FLOWERING PLANTS to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations
Scientific name Common name Where listed Status and applicable
rules
----------------------------------------------------------------------------------------------------------------
Flowering Plants
* * * * * * *
Castilleja ornata................ Swale paintbrush.... Wherever found...... E 89 FR [INSERT
FEDERAL REGISTER
PAGE WHERE THE
DOCUMENT BEGINS],
12/05/2024.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Gary Frazer,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2024-28357 Filed 12-4-24; 8:45 am]
BILLING CODE 4333-15-P
</pre></body>
</html>Indexed from Federal Register on December 5, 2024.
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