Rule2026-10045
Endangered and Threatened Wildlife and Plants; Reclassification of the Rough Popcornflower From Endangered to Threatened With a Section 4(d) Rule
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
May 19, 2026
Effective
June 18, 2026
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), are reclassifying the rough popcornflower (Plagiobothrys hirtus) from endangered to threatened (downlist) under the Endangered Species Act of 1973, as amended (Act). This action is based on our evaluation of the best scientific and commercial data available, which indicates that the species' status has improved such that it is not in danger of extinction throughout all or a significant portion of its range, but that it is still likely to become so within the foreseeable future. We also finalize protective regulations under the authority of section 4(d) of the Act that are necessary and advisable to provide for the conservation of this species.
Full Text
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[Federal Register Volume 91, Number 96 (Tuesday, May 19, 2026)]
[Rules and Regulations]
[Pages 29071-29091]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-10045]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R1-ES-2024-0005; FXES1113090FEDR-267-FF09E22000]
RIN 1018-BG68
Endangered and Threatened Wildlife and Plants; Reclassification
of the Rough Popcornflower From Endangered to Threatened With a Section
4(d) Rule
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are
reclassifying the rough popcornflower (Plagiobothrys hirtus) from
endangered to threatened (downlist) under the Endangered Species Act of
1973, as amended (Act). This action is based on our evaluation of the
best scientific and commercial data available, which indicates that the
species' status has improved such that it is not in danger of
extinction throughout all or a significant portion of its range, but
that it is still likely to become so within the foreseeable future. We
also finalize protective regulations under the authority of section
4(d) of the Act that are necessary and advisable to provide for the
conservation of this species.
DATES: This rule is effective June 18, 2026.
DATES: This final rule is available on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Comments and materials we received are available
for public inspection at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-
R1-ES-2024-0005.
Availability of supporting materials: Supporting materials we used
in preparing this rule, including the 5-year reviews, the 2003 recovery
plan, the 2019 recovery plan amendment, and the species status
assessment report, are available on the Service's website at <a href="https://ecos.fws.gov/ecp/species/2500">https://ecos.fws.gov/ecp/species/2500</a> and at <a href="https://www.regulations.gov">https://www.regulations.gov</a> under
Docket No. FWS-R1-ES-2024-0005.
FOR FURTHER INFORMATION CONTACT: Kessina Lee, State Supervisor, U.S.
Fish and Wildlife Service, Oregon Fish and Wildlife Office; 503-231-
6179; <a href="/cdn-cgi/l/email-protection#6b000e181802050a34070e0e2b0d1c18450c041d"><span class="__cf_email__" data-cfemail="a6cdc3d5d5cfc8c7f9cac3c3e6c0d1d588c1c9d0">[email protected]</span></a>. 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 reclassification from endangered to
threatened if it no longer meets the definition of an endangered
species (in danger of extinction throughout all or a significant
portion of its range). The rough popcornflower is listed as endangered,
and we are reclassifying (downlisting) the rough popcornflower as
threatened. We have determined the rough popcornflower does not meet
the Act's definition of an endangered species but it does meet the
definition of a threatened species (likely to become an endangered
species throughout all or a significant portion of its range within the
foreseeable future). Reclassifying a species as a threatened species
can be completed only by issuing a rule through the Administrative
Procedure Act rulemaking process (5 U.S.C. 551 et seq.).
What this document does. This rule downlists the rough
popcornflower from endangered to threatened on the Federal List of
Endangered and Threatened Plants (List), with a rule issued under
section 4(d) of the Act, based on the species' current status, which
has been improved through implementation of conservation actions
including additional monitoring that has revealed populations and
plants not known at the time of listing.
The basis for our action. Under the Act, we may determine that a
species is an endangered species or a threatened species because of any
of five factors: (A) The present or threatened destruction,
modification, or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence. We may reclassify a species if the
best scientific and commercial data available indicate the species no
longer meets the applicable definition in the Act. Based on the status
review, the current threats analysis, and evaluation of conservation
measures discussed in this rule, we conclude that the rough
popcornflower no longer meets the Act's definition of an endangered
species and should be reclassified to a threatened species. The species
is no longer in danger of extinction throughout all or a
[[Page 29072]]
significant portion of its range, but is likely to become so within the
foreseeable future.
We have determined that the rough popcornflower is a threatened
species due to the following threats: destruction and/or alteration of
habitat by development and hydrological changes (e.g., wetland fills,
draining, construction), competition from nonnative invasive plant
species, impacts due to climate change (e.g., winter flooding, drier
summer soils, and decreased fruit production), and lack of regulatory
mechanisms.
Previous Federal Actions
Please refer to the proposed rule to reclassify the rough
popcornflower, published on December 11, 2024 (89 FR 99809), for a
detailed description of previous Federal actions concerning this
species.
Peer Review
A species status assessment (SSA) team prepared an SSA report for
the rough popcornflower. The SSA team was composed of Service
biologists, in consultation with other species experts. The SSA report
represents a compilation of the best scientific and commercial data
available concerning the status of the species, including the impacts
of past, present, and future factors (both negative and beneficial)
affecting the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review of
listing and recovery actions under the Act (<a href="https://www.fws.gov/sites/default/files/documents/peer-review-policy-directors-memo-2016-08-22.pdf">https://www.fws.gov/sites/default/files/documents/peer-review-policy-directors-memo-2016-08-22.pdf</a>), we solicited independent scientific review of the information
contained in the rough popcornflower SSA report. As discussed in the
proposed rule, we sent the SSA report to three independent peer
reviewers and received two responses. The peer reviews can be found at
<a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No. FWS-R1-ES-2024-0005. In
preparing the proposed rule, we incorporated the results of these
reviews, as appropriate, into the SSA report, which was 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 (89 FR
99811-99812).
Summary of Changes From the Proposed Rule
We received two responses to our request for information on the
proposed rule during the public comment period. Only the submission
from the Oregon Department of Agriculture (ODA) raised substantive
issues that needed to be fully considered and addressed. We summarize
these issues in the 7 comments and provide our responses below (See
Summary of Comments and Recommendations). Minor, nonsubstantive changes
and corrections were made in response to comments on the proposed rule
and are reflected throughout this final rule. The information we
received during the comment period on the proposed rule did not change
our determination for either reclassifying the rough popcornflower as a
threatened species under the Act or the 4(d) rule for the species.
The ODA submitted comments that included additional information on
current population numbers from recent surveys and refined population
areas. Surveys were conducted by The Nature Conservancy (TNC), the
Oregon Department of Transportation (ODOT), ODA, and the Service. In
addition, Service staff conducted visits of some rough popcornflower
populations to get new estimates of population size and area coverage.
In response, we updated the population numbers and area for all
populations of rough popcornflower where available. This new
information resulted in one more downlisting criterion being fulfilled
and changed the degree to which other recovery criteria have been met.
We updated the number of populations reaching certain recovery criteria
where applicable throughout this final rule.
Finally, we developed an addendum to accompany the SSA report
version 1.0 that contains the updated population and area data for the
rough popcornflower that became available since the publication of the
proposed rule on December 11, 2024 (89 FR 99809). The addendum also
contains updated monitoring information for all populations of rough
popcornflower (USFWS 2026, entire).
Summary of Comments and Recommendations
In the proposed rule published on December 11, 2024 (89 FR 99809),
we requested that all interested parties submit written comments on the
proposal by February 10, 2025. 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. Newspaper notices inviting general public comment were
published in The News-Review. We did not receive any requests for a
public hearing. All substantive information received during the comment
period has either been incorporated directly into this final
determination or is addressed below.
Comments From States
(1) Comment: ODA commented that data presented in the proposed
downlisting rule (89 FR 99809) did not adequately demonstrate that the
downlisting criteria in the 2019 amendment to the recovery plan for
rough popcornflower (USFWS 2019, entire) had been fully met, though
they agreed that rough popcornflower merits downlisting from endangered
to threatened.
Our response: In accordance with section 4(b)(1)(A) of the Act (16
U.S.C. 1531et seq.), the downlisting determination for rough
popcornflower is based on the best scientific and commercial data
available to the Service. While we consider recovery plans to be
`roadmaps' to guide recovery, they are not binding regulatory
documents, and achievement, or lack of achievement, of specific
recovery criteria therein does not automatically confer regulatory
status under section 4(a)(1) of the Act. Ultimately, our determination
of listing status is based on an evaluation of whether a species meets
the definition of a threatened or endangered species under the Act.
Therefore, in our SSA, we analyzed population resiliency, redundancy,
and representation to evaluate whether a species still meets the
definition of ``endangered.'' In the case of the rough popcornflower,
we determined that the best scientific and commercial data available
supports downlisting the species from endangered to threatened. For
more information on the viability of the species, please see the SSA
(USFWS 2021, entire). Responses to ODA's comments on specific recovery
criteria not being fully met are provided below.
(2) Comment: ODA stated that our assessment that 10 of 12 reserves
meet recovery criterion 1 (see Background for descriptions of the
recovery criteria) is misleading because two populations are not
legally protected. Further, they stated that the definition of a
``reserve'' requires both a minimum population size (5,000 plants) and
formal protection with management for long-term survival. ODA commented
that two rough popcornflower populations (Horsepasture 2 and TNC/ODOT
Popcornswale Preserve) are not legally protected, and it is unclear if
they are managed specifically to protect the species.
[[Page 29073]]
Our response: We agree that the two rough popcornflower populations
on privately held property do not have formal protection. We consider
formal protection to be habitat secured through ownership or management
arrangement that ensures long-term preservation of the habitat features
on which rough popcornflower depends. We acknowledge the Horsepasture 2
population occurs on privately held land that is not managed
specifically to protect rough popcornflower, and it is not subject to
any legal land or regulatory protection (except for requirements for
consultation with the Service for any Federal actions that may affect
the rough popcornflower). We now consider the property unprotected and
have removed it as a ``reserve'' population.
We consider the TNC/ODOT Popcornswale Preserve population, which
contains lands owned by both TNC and ODOT, to be a reserve due to: (1)
our long-term partnership with TNC; and (2) the protections in place on
the portion of the lands owned by ODOT. We have cooperated with TNC on
many occasions to augment the rough popcornflower population, restore
habitat, and survey the TNC/ODOT Popcornswale Preserve population. TNC
has partnered with many of our agency's initiatives and programs
throughout the United States for many years, including a Jobs in the
Woods program at the TNC/ODOT Popcornswale Preserve that focused on
rehabilitating wet prairie at the Popcornswale Preserve through removal
of trees and shrubs and the control of nonnative invasive species to
benefit rough popcornflower (USFWS 2003a, entire). We maintain close
communication with TNC regarding the rough popcornflower population at
this site.
The rough popcornflower is afforded protection by state law on the
ODOT portion of this population, under Oregon Revised Statutes (ORS)
564.010-.994 (e.g., ORS 564.115, Protection and conservation programs).
Because the ODOT's Popcornswale property lies adjacent to and is part
of the same biological population as the TNC property, we consider the
ODOT population to independently meet ``reserve'' level population
status without considering the portion of the population that falls on
TNC property. Thus, for the reasons stated above, we consider the TNC/
ODOT Popcornswale Preserve population to be a reserve.
(3) Comment: ODA commented that criterion 3, which requires a
specific distribution of reserve populations throughout the three
recovery units and areas outside the recovery units, has not been met.
ODA remarked that there is a need for one more qualifying reserve in
both the Sutherlin and Calapooya Creek recovery units to meet the
criterion, though they consider the intent of criterion 3 met. ODA
commented that we should meet these requirements or formally revise
them with clear scientific justification before proceeding with
downlisting the rough popcornflower.
Our response: In the past several years, new census data has
resulted in updated population numbers for the rough popcornflower
populations. These data refine the area estimates for populations of
rough popcornflower, which changed the number of populations that met
the distribution requirement for criterion 3. Currently, there are four
reserves in the Sutherlin Creek recovery unit (Orenco Ponds, ODOT
Wilbur, ODOT Popcornswale, and Southside Swale), one reserve in the
Yoncalla Creek recovery unit (Yoncalla 2), no reserves in the Calapooya
Creek recovery unit, and one reserve located in the North Bank Habitat
Management Area (Middle Barn), that meet criterion 3. Although not
considered a reserve, the Horsepasture 2 population meets both area and
population requirements for criterion 3, as well. The most recent
survey data indicate that 12 populations, including Horsepasture 2,
exceed 5,000 plants distributed across all recovery units and the
Umpqua Management Area, and 8 populations exceed 500 square meters
(m\2\) (5,382 square feet (ft\2\)) of plant cover. Considering this
updated information, we find that the intent of criterion 3 has been
met.
It is not a requirement of the Act that we revise recovery criteria
prior to undertaking a reclassification. Recovery plans provide
roadmaps to species recovery but are not required to achieve recovery
of a species or to evaluate it for downlisting. In addition, recovery
plans are nonbinding documents that rely on voluntary participation
from landowners, land managers, and other recovery partners. A
determination of the status for a valid, extant species is made solely
on the question of whether it meets the definition of an endangered or
threatened species. As explained below (see Final Reclassification
Decision), the rough popcornflower no longer meets the definition of an
endangered species but meets the definition of a threatened species.
(4) Comment: ODA commented that monitoring data presented in the
proposed rule do not fully support the criterion 4 objective that
stable or increasing population trends occur over a 5-year period for
at least seven reserve populations, with only six reserve populations
showing population stability and three other populations without
sufficient data.
Our response: New data obtained since the proposed rule now show
that nine reserve populations have a stable or increasing population
trend over a 5-year period (USFWS 2026, entire); thus, this criterion
is met.
(5) Comment: ODA commented that persistent threats to rough
popcornflower remain across its range and should be routinely addressed
to ensure the species persists. They suggested that one-third of the
rough popcornflower populations are small, at risk of exposure to
development or succession, and likely to suffer from genetic isolation
and other genetic problems. In addition, they expressed concern that
rough popcornflower populations face challenges from a changing
climate, lack of secure regulatory requirements to protect the species,
and invasive species.
Our response: We review the best scientific and commercial data
available when conducting a threats analysis. The identification of
factors that could impact a species negatively is not sufficient to
compel a finding that a species meets the definition of an endangered
or threatened species under the Act. In considering what factors might
constitute a threat, we must look beyond the mere exposure of the
species to the factor to determine whether the exposure is likely to
cause actual impacts to the species and the degree to which these
factors are currently impacting and likely to impact the species within
the foreseeable future.
We agree with ODA that the factors identified present some level of
continued threat to the species into the future, and we discuss these
population-level threats in the context of the overall species-level
population and occupied area trends in the SSA (USFWS 2021, pp. 17-26).
However, the species has recovered to the point at which it is no
longer currently in danger of extinction but is likely to become in
danger of extinction within the foreseeable future. While some
populations remain small and potentially isolated, the majority of
rough popcornflower populations support more than 5,000 individuals
each, which is the population size at which the species is resilient to
disturbances and less susceptible to stochastic events and genetic
issues. Connectivity between populations has also improved since the
initial listing of the species, helping to alleviate potential genetic
isolation for some populations.
[[Page 29074]]
Competition with nonnative invasive plants remains an ongoing
threat for the rough popcornflower, primarily due to habitat
encroachment and elimination of bare ground needed for popcornflower
seed germination. However, nonnative invasive species management
remains a priority for many of the land managers where rough
popcornflower is found, and investments in weed control and improved
invasive species management have contributed to the species' stable or
increasing populations (USFWS 2021, p. 24). While these efforts need to
be maintained, the impact of nonnative invasive plants can be managed.
Rough popcornflower has the potential to be negatively impacted by
climate change, primarily due to the increased variability of
precipitation leading to periods of prolonged drought interspersed by
years with heavy rainfall events. This variation in precipitation could
increase the frequency at which wetlands dry before rough popcornflower
has completed the flowering and fruiting stage. Temperatures could also
rise above those suitable for growth of the species. Conservation
efforts have increased the species' resiliency, redundancy, and
representation such that the species is now better able to sustain
viability through changing climate conditions, though we agree these
impacts may persist in the foreseeable future (UWFWS 2021, pp. 24-25).
Rough popcornflower is a conservation-reliant species, and
significant progress has been made in protecting and managing sites
supporting the species through the use of conservation efforts such as
vegetation control, reintroductions and augmentation, and conservation
agreements. At the time of listing, rough popcornflower was known to
consist of approximately 7,000 individuals in 8 populations. With
implementation of recovery actions and the discovery of previously
unknown populations, there are currently over 2,000,000 plants in 18
populations. While challenges for the species remain, the current and
future viability of the species supports a status change to downlist
from an endangered species to a threatened species under the Act.
(6) Comment: ODA commented that the analysis of resiliency,
redundancy, and representation under Scenario B indicating that the
viability of rough popcornflower is not likely to be significantly
reduced over the next 30 years is overly optimistic given the current
threats facing rough popcornflower.
Our response: Future scenarios are not intended to function as
predictions; rather, they are a tool for assessing the potential long-
term viability of the species in response to a range of plausible
future conditions.
In our assessment of future viability of the species in the SSA
report, we considered better than expected (Scenario A), moderate
(Scenario B), and worse than expected (Scenario C) scenarios that
examined species viability over the next 30 years (USFWS 2021, pp. 41-
47). We include these scenarios to capture the full range of plausible
futures for rough popcornflower. Scenario B is the most likely scenario
based on current condition trajectories; it estimates that government
agencies, non-profit conservation organizations, academic institutions,
and private landowners will continue to collaborate and contribute
conservation resources to the rough popcornflower and its habitats.
Scenario A, the upper plausible limit, projects even greater
conservation effort. Scenario C projects conservation efforts decrease
from current levels. Therefore, Scenario B is only one of the plausible
future outcomes we considered for the species and falls between the
upper and lower condition outcomes. No one scenario is relied on to
assess the status of the species. Rather, we look at the entire range
of plausible outcomes to inform the status determination.
(7) Comment: ODA commented that it is misleading to suggest that
conservation measures and recovery actions of partners are responsible
for the increase of known plants from about 7,000 at the time of
listing to over 800,000 at the time of the proposed rule (now over
2,000,000 with updated survey information).
Our response: We amended language in the rule to attribute some
population increases to reintroduction, augmentation, and restoration
efforts, and attribute other population increases to the discovery of
existing populations that were not known or completely censused at the
time of the listing. We further note that we consider the discovery of
additional populations to be the direct result of recovery plan-driven
survey efforts by partners such as ODOT, ODA, Phoenix School
volunteers, and TNC and their volunteers.
I. Final Reclassification Determination
Background
Rough popcornflower is an herbaceous plant in the borage or
``forget-me-not'' family (Boraginaceae) and is endemic to the Umpqua
River basin in Douglas County, Oregon, with populations concentrated in
the Sutherlin Creek drainage (figure 1). It is closely associated with
emergent wetlands within seasonally wet meadows or prairie and
relatively level, open habitats formed from poor draining clay-loam
soils.
BILLING CODE 4333-15-P
[[Page 29075]]
[GRAPHIC] [TIFF OMITTED] TR19MY26.000
Figure 1--Distribution of Rough Popcornflower in Douglas County,
Oregon.
Rough popcornflower can be either an annual or a short-lived
perennial. Individual rough popcornflower plants are between 7
centimeters (cm) (2.75 inches (in)) and 60 cm (23.6 in) tall, with
narrow, bright-green leaves. Their trumpet-shaped, non-fragrant flowers
consist of five fused petals and are mostly white with yellow centers.
Rough popcornflower plants, whether annual or perennial, reach sexual
maturity and produce fruits in their first year. The plants generally
germinate in the fall, bloom in late spring and early summer, produce
seed beginning in late June, and then senesce between July and
November. The species is capable of either self-fertilization or cross-
fertilization; however, generalist insect pollination appears to be the
predominant vector enabling rough popcornflower reproduction (Amsberry
and Meinke 2001, pp. 12-13). A thorough review of the taxonomy, life
history, and ecology of the rough popcornflower is presented in the SSA
report, version 1.0 (USFWS 2021, entire).
Recovery Criteria
Section 4(f) of the Act directs us to develop and implement
recovery plans for the conservation and survival of endangered and
threatened species unless we determine that such a plan will not
promote the conservation of the species. Under section 4(f)(1)(B)(ii),
recovery plans must, to the maximum extent practicable, include
objective, measurable criteria which, when met, would result in a
determination, in accordance with the provisions of section 4 of the
Act, that the species be removed from the Lists of Endangered and
Threatened Wildlife and Plants.
Recovery plans provide a roadmap for us and our partners on methods
of enhancing conservation and minimizing threats to listed species, as
well as measurable criteria against which to evaluate progress towards
recovery and
[[Page 29076]]
assess the species' likely future condition. However, they are not
regulatory documents and do not substitute for the determinations and
promulgation of regulations required under section 4(a)(1) of the Act.
A decision to revise the status of a species, or to delist a species,
is ultimately based on an analysis of the best scientific and
commercial data available to determine whether a species is no longer
an endangered species or a threatened species, regardless of whether
that information differs from the recovery plan.
There are many paths to accomplishing recovery of a species, and
recovery may be achieved without all of the criteria in a recovery plan
being fully met. For example, one or more criteria may be exceeded
while other criteria may not yet be accomplished. In that instance, we
may determine that the threats are minimized sufficiently and that the
species is robust enough that it no longer meets the definition of an
endangered species or a threatened species. In other cases, we may
discover new recovery opportunities after having finalized the recovery
plan. Parties seeking to conserve the species may use these
opportunities instead of methods identified in the recovery plan.
Likewise, we may learn new information about the species after we
finalize the recovery plan. The new information may change the extent
to which existing criteria are appropriate for identifying recovery of
the species. The recovery of a species is a dynamic process requiring
adaptive management that may, or may not, follow all of the guidance
provided in a recovery plan.
We completed a final recovery plan for the rough popcornflower in
2003 (USFWS 2003b, entire) and amended the plan in 2019 (USFWS 2019,
entire). The objective of the original recovery plan for rough
popcornflower was to reduce the threats and increase population
viability to the point that the species could be downlisted to
threatened status (USFWS 2003b, p. 21). The original recovery plan
assigned each known natural population to one of three recovery units
(Calapooya Creek, Sutherlin Creek, and Yoncalla Creek). The recovery
units each corresponded to a drainage basin within the Lower North
Umpqua system and represented groups of populations which share
phenotypic similarities and are potentially genetically similar. The
original recovery plan also established recovery criteria for
downlisting (USFWS 2003b, pp. 21-22). At that time, the information
available was insufficient to identify recovery criteria for delisting.
The 2019 recovery plan amendment evaluated the adequacy of existing
recovery criteria, amended downlisting criteria, added delisting
criteria, and presented rationale supporting the recovery plan
modification (USFWS 2019, entire).
Below are the downlisting criteria for the rough popcornflower as
amended in 2019 (USFWS 2019, pp. 4-6), and the progress made to date
toward achieving each criterion.
Criterion 1 for Downlisting
Criterion 1 states that at least 9 reserves, containing a minimum
of 5,000 plants each, are protected and managed to assure their long-
term survival. A reserve refers to one or more patches of rough
popcornflower located within 1 kilometer (km) (0.6 miles (mi) of each
other that are protected from development and managed for the continued
existence of the species (USFWS 2019, p. 3). The minimum population
size of 5,000 individuals per reserve is intended to provide sufficient
resiliency to withstand stochastic events (Culotta 1995, pp. 31-32;
Traill et al. 2007, p. 164). The number of reserves is intended to
provide sufficient redundancy such that rough popcornflower is not at
risk of extinction due to catastrophic events. The maximum distance
between patches within a reserve provides connectivity for pollinator-
mediated gene flow across the population (USFWS 2019, p. 4).
At the time of listing, our knowledge of rough popcornflower
abundance and distribution was limited to approximately 7,000 known
plants in 8 populations (USFWS 2021, p. 9). Since then, many
conservation partners have made significant contributions to rough
popcornflower recovery efforts, including additional monitoring that
has revealed populations and plants not known at the time of listing.
For example, the ODA collected seed, sowed seed for use by multiple
partners, augmented existing populations, conducted monitoring, and
provided technical expertise. Other conservation partners, such as the
Douglas Soil and Water Conservation District, City of Sutherlin, and
Bureau of Land Management (BLM), have committed to conservation
measures that include habitat restoration followed by seeding on
several properties (USFWS 2001, entire; USFWS 2004, entire; USFWS
2023c, entire). Recent surveys (USFWS 2021, appendix 3; USFWS 2022,
entire; USFWS 2023a, entire; USFWS2025, entire) documented a total of
11 rough popcornflower reserves. All 11 of those reserves are protected
and managed, while 1 additional population (a privately owned parcel
containing over 1,000,000 plants) is currently adequately supporting
rough popcornflower but is not protected and thus not considered a
reserve (table 1).
Ten of the 11 reserves meet the minimum population size of 5,000
individuals per reserve to fully satisfy criterion 1 (USFWS 2026,
entire). This number of plants and the distribution of populations is
expected to enable rough popcornflower to withstand both stochastic and
catastrophic events, and to maintain the capacity to adapt to future
environmental changes. As such, we conclude that this downlisting
criterion has been met and exceeded.
Criterion 2 for Downlisting
Criterion 2 states a minimum of 500 m\2\ (5,382 ft\2\) is occupied
by rough popcornflower within each of the 9 reserves called for in
criterion 1. The intent of this criterion is to have multiple
populations large enough to maintain sufficient resiliency to withstand
stochastic events.
Six of the 10 reserves that meet criterion 1 contain at least 500
m\2\ (5,382 ft\2\) of occupied habitat to meet the description of
criterion 2. Two other populations (Deady and Horsepasture 2) also meet
or exceed the area coverage parameter but do not satisfy the criterion
as they are not considered to be protected populations (see table 1,
below). Although this criterion is not fully met as identified in the
2019 amendment to the recovery plan, there are eight populations that
meet or exceed the area coverage parameter (USFWS 2026, entire). These
eight populations are sufficiently spatially distributed across the
species' range to enable the species to withstand both stochastic and
catastrophic events, and to maintain the capacity to adapt to future
environmental changes. We conclude that the intent of this criterion
has been met.
Criterion 3 for Downlisting
Criterion 3 states that a minimum of nine reserves, each meeting
criteria 1 and 2, are distributed across the recovery units, with a
minimum of five reserves in the Sutherlin Creek recovery unit and at
least one reserve each in the Yoncalla Creek and Calapooya Creek
recovery units. The remaining two reserves may be located within any of
the natural recovery units or elsewhere within the watersheds
containing the recovery units. The intent of this criterion is to
provide sufficient redundancy of populations across the species' range
to allow the species to withstand catastrophic events.
[[Page 29077]]
Of the six reserves meeting criteria 1 and 2, four are in the
Sutherlin Creek recovery unit, one is in the Yoncalla Creek recovery
unit, none are in the Calapooya Creek recovery unit, and one is in the
Umpqua Management Area, which includes introduced populations of rough
popcornflower in the BLM's North Bank Habitat Management Area (USFWS
2026, entire).
Criterion 3 has not been fully met because the number of reserves
fully meeting both criteria 1 and 2 is not met, and one fewer reserve
than is indicated in the criterion currently exists in both the
Sutherlin Creek and Calapooya Creek recovery units. However, the
distribution of 12 populations that each exceed 5,000 plants (10
meeting criterion 1) across all recovery units and the Umpqua
Management Area, and 8 populations that exceed 500 m\2\ (5,382 ft\2\)
occupied by rough popcornflower, demonstrate that relatively large
populations are spatially distributed across the species' range.
Although reserve populations are not distributed as prescribed in the
recovery plan, the distribution and number of populations exceeding
5,000 plants indicate the species is likely to be sufficiently
resilient to catastrophic events. Therefore, we find that the intent of
this downlisting criterion has been met.
Criterion 4 for Downlisting
Criterion 4 states that over a period of 5 years, with a minimum of
3 individual years of monitoring, demographic data indicate at least
seven of the nine reserves referenced in criterion 1 have average
population numbers that are stable or increasing, without decreasing
trends lasting more than 2 years. Stable or increasing populations are
an indicator of resiliency. While some inter-annual variability is
expected due to demographic and environmental stochasticity, this
criterion is intended to provide sufficient confidence that large,
sustained declines will not occur. Population monitoring, which entails
taking a full plant census, occurs in late spring or early summer,
either annually or biannually. We monitor populations on private, city,
or county land when authorized to do so. Alternatively, we provide
funding through the Cooperative Endangered Species Conservation Fund to
the ODA to monitor populations. Conservation partners, including the
BLM, ODOT, and TNC monitor populations on their lands biennially.
Nine of the 10 rough popcornflower reserves that meet criterion 1
also currently meet this criterion (see table 1, below), and thus this
downlisting criterion is met. Although the remaining reserve meeting
criterion 1 has not been monitored with sufficient frequency to satisfy
all of the requirements of this criterion (ODOT Wilbur Mitigation
Site), it has maintained relatively stable population numbers between
monitoring events from 2011-2024 (USFWS 2021 pp. 13-16; USFWS 2022,
entire; USFWS 2023a, entire; USFWS 2025, entire). Having all 10 of the
reserve populations exhibiting stable or increasing numbers across the
range of the species demonstrates that rough popcornflower has
sufficient resiliency to respond to inter-annual environmental
variability and is unlikely to experience sustained declines across its
range.
Table 1--Rough Popcornflower Downlisting Criteria and Status by Recovery Units/Area, Douglas County, Oregon
[[check]= criterion met]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Downlisting criteria
------------------------------------------------------------------------------------------------
#1 #2 #3 #4
Population Recovery unit ------------------------------------------------------------------------------------------------
Patches Criteria 3 survey yrs. w/in
Plants >5,000 (number Managed or within 1 Area >500 m\2\ #1 and #2 last 5 yrs.; no 2-
of plants) protected km (size in m\2\) met \5\ yr decrease
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Horsepasture 2 \1\............ Sutherlin Creek..... [check] ............ [check] [check] .......... ..................
(1,000,000) (10,700)
2. TNC \2\ Popcornswale Preserve. Sutherlin Creek..... [check] [check] [check] [check] [check] [check]
(326,951) (1,384)
3. ODOT \3\ Wilbur Mitigation Sutherlin Creek..... [check] [check] [check] [check] [check] ..................
Site. (590,361) (914)
4. Hawthorne..................... Sutherlin Creek..... (250) ............ [check] (10) .......... ..................
5. Orenco Ponds.................. Sutherlin Creek..... [check] [check] [check] [check] [check] [check]
(97,126) (1,344)
6. Red Rock Park................. Sutherlin Creek..... (3,175) [check] [check] (82) .......... ..................
7. Southside Swale............... Sutherlin Creek..... [check] [check] [check] [check] [check] [check]
(19,520) (2,785)
8. Deady......................... Sutherlin Creek..... [check] ............ [check] [check] .......... ..................
(6,000) (506)
9. Sutherlin East................ Sutherlin Creek..... (1,000) ............ [check] (6) .......... ..................
10. Ford's Pond.................. Calapooya Creek..... [check] [check] [check] (145) .......... [check]
(27,130)
11. Stearns Lane................. Calapooya Creek..... (2) ............ [check] (2) .......... ..................
12. Nonpareil.................... Calapooya Creek..... (300) ............ [check] (100) .......... ..................
13. Goat Ranch................... Calapooya Creek..... (75) ............ [check] (5) .......... ..................
14. ODOT \3\ Yoncalla South...... Yoncalla Creek...... [check] [check] [check] (210) .......... [check]
(12,451)
15. Yoncalla 2................... Yoncalla Creek...... [check] [check] [check] [check] [check] [check]
(15,175) (845)
16. Soggy Bottoms/NWYC Patch..... Umpqua Mgmt. Area [check] [check] [check] (107) .......... [check]
\4\. (7,698)
17. Middle Barn/Soggy Bottoms Umpqua Mgmt. Area [check] [check] [check] [check] [check] [check]
Sister. \4\. (45,092) (500)
18. Westgate..................... Umpqua Mgmt. Area [check] [check] [check] (229) .......... [check]
\4\. (10,157)
------------------------------------------------------------------------------------------------
Total........................ .................... 2,162,463 ............ ......... 19,874 .......... ..................
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The Horsepasture 2 population meets the population and area requirements of downlisting criteria 1 and 2 but is located on private property and is
not considered protected. We do not consider this population to be a reserve.
\2\ TNC means The Nature Conservancy.
\3\ ODOT means the Oregon Department of Transportation.
[[Page 29078]]
\4\ The Umpqua Management Area is not an official recovery unit. This area is an additional recovery management area that includes introduced
populations of rough popcornflower in the Bureau of Land Management (BLM)'s North Bank Habitat Management Area. While not an official recovery unit,
the Umpqua Management Area populations do contribute toward the overall species' recovery.
\5\ Downlisting criterion 3 states that a minimum of nine reserves, each meeting the requirements in downlisting criteria 1 and 2, are distributed with
at least one reserve each in the Calapooya Creek and Yoncalla Creek recovery units, and a minimum of five reserves in the Sutherlin Creek recovery
unit.
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and the implementing
regulations in title 50 of the Code of Federal Regulations (CFR) 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.
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range, and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an endangered species or a threatened
species because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects. We consider these same five
factors in downlisting a species from endangered to threatened.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the species' expected response and
the effects of the threats--in light of those actions and conditions
that will ameliorate the threats--on an individual, population, and
species level. We evaluate each threat and its expected effects on the
species, then analyze the cumulative effect of all of the threats on
the species as a whole. We also consider the cumulative effect of the
threats in light of those actions and conditions that will have
positive effects on the species, such as any existing regulatory
mechanisms or conservation efforts. The Secretary determines whether
the species meets the definition of an ``endangered species'' or a
``threatened species'' only after conducting this cumulative analysis
and describing the expected effect on the species.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis which is
further described in the 2009 Memorandum Opinion on the foreseeable
future from the Department of the Interior, Office of the Solicitor (M-
37021, January 16, 2009; ``M- Opinion,'' available online at <a href="https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37021.pdf">https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37021.pdf</a>).
The foreseeable future extends as far into the future as the U.S. Fish
and Wildlife Service 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 scientific and commercial data available 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 available
regarding the status of the species, including an assessment of the
potential threats to the species. The SSA report does not represent our
decision on whether the species should be reclassified as a threatened
species under the Act. However, it does provide the scientific basis
that informs our regulatory decisions, which involve the further
application of standards within the Act and its implementing
regulations and policies.
To assess the rough popcornflower's viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency is the ability of the species to withstand environmental and
demographic stochasticity (for example, wet or dry, warm or cold
years), redundancy is the ability of the species to withstand
catastrophic events (for example, droughts, large pollution events),
and representation is the ability of the species to adapt to both near-
term and long-term changes in its physical and biological environment
(for example, climate conditions, pathogens). In general, species
viability will increase with increases in resiliency, redundancy, and
representation (Smith et al. 2018, p. 306). Using these principles, we
identified the species' ecological requirements for survival and
reproduction at the individual, population, and species levels, and
described the beneficial and risk factors influencing the species'
viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated individual species' life-history
needs. The next stage involved an assessment of the historical and
current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' future condition, including responses to
positive and negative environmental and
[[Page 29079]]
anthropogenic influences. Throughout all of these stages, we used the
best scientific and commercial data available 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-R1-
ES-2024-0005 on <a href="https://www.regulations.gov">https://www.regulations.gov</a> and at <a href="https://ecos.fws.gov/ecp/species/2500">https://ecos.fws.gov/ecp/species/2500</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. In addition, the SSA (USFWS
2021, entire) documents our comprehensive biological status review for
the species, including an assessment of the potential threats to the
species. The following is a summary of this status review and the best
scientific and commercial data available gathered since that time that
have informed this decision.
Species Needs
Rough popcornflower typically occupies seasonally wet meadows or
prairie, seasonally ponding mudflats, and Oregon ash (Fraxinus
latifolia) swale openings dominated by native wetland-associated plants
in valley lowlands where the ground is moist well into the summer
season. Rough popcornflower requires early seral habitat and is not
associated with dense tree or shrub canopies. Periodic disturbance
(e.g., flooding, fire, mowing, or grazing) is necessary to control
nonnative invasive plant competitors and maintain the early seral and
open habitat conditions in which rough popcornflower populations
thrive. Several insects are known to pollinate rough popcornflower:
honeybees (Apis spp.); bumble bees (Bombus spp.); halictid and
megachilid bees; Hemiptera (true bugs); bombyliid, syrphid, and
tachinid flies; and red-shouldered ctenucha moths (Ctenucha
rubroscapus). These insects require diverse native vegetation and
minimal pesticide exposure.
Resilient rough popcornflower populations need enough individuals
to withstand stochastic events and disturbances. The minimum viable
population size for rough popcornflower has not been identified.
However, the recovery plan characterizes 5,000 plants as approximately
the number of plants required to achieve an effective population size
of 500--the minimum effective population size where an isolated
population is likely to be resilient to most disturbances and capable
of resisting inbreeding depression (USFWS 2003b, p. 17; USFWS 2019, p.
4). Though some current populations may have fewer than 5,000 plants,
taking into consideration other factors such as habitat quantity,
habitat quality, connectivity, management, protection, reproduction,
they may still be considered to have high resiliency (USFWS 2021, p.
31). For rough popcornflower to be considered viable as a species, it
must be able to withstand catastrophic events and adapt to
environmental changes. This can be achieved with sufficient resilient
populations distributed across the species' geographic range,
representing the range of ecological settings in which the species is
known to exist. The minimum number of populations required for rough
popcornflower has not been determined. However, distribution and
abundance goals laid out in the recovery plan (USFWS 2003b, pp. 21-22;
USFWS 2019, pp. 4-8) and described above under Recovery Criteria
provide a benchmark for evaluating the species' condition.
Threats
When we listed rough popcornflower as endangered (65 FR 3866;
January 25, 2000), the primary threats were identified as habitat
alteration by wetland filling and development, livestock grazing (or
herbivory), and competition from nonnative invasive species. Small,
isolated populations contributed toward the species' vulnerability to
these threats. Lesser potential threats included overcollection for
scientific or horticultural purposes, vandalism, the inadequacy of
regulatory mechanisms, road maintenance, fire, and flooding (65 FR 3866
at 3870-3872; January 25, 2000). Since the time of listing, we found
that the primary threats to rough popcornflower are habitat alteration
by wetland filling and development, competition from native and
nonnative species, impacts due to climate change, and lack of
regulatory mechanisms. The best available information does not indicate
that livestock grazing, overcollection, vandalism, road maintenance,
fire or flooding currently pose a threat to the species (USFWS 2003b,
p. 13; USFWS 2023b, entire).
Habitat Loss and Fragmentation
In the final listing rule (65 FR 3866 at 3869; January 25, 2000),
we described how rough popcornflower populations had become fragmented
due to draining and filling of wetlands from properties being
developed. At the time of listing, only five populations of rough
popcornflower were protected from detrimental land-use activities.
Currently, 11 of the 18 populations are under Federal, State,
municipal, or land trust protections. Education efforts have increased
recognition of rough popcornflower habitat, as well as avoidance,
minimization, or mitigation of development impacts. Because 11 of the
18 known populations are now protected, the threat posed by detrimental
land use activities has been significantly reduced since the time of
listing. However, the lack of formal commitments for the long-term
beneficial management of rough popcornflower in the remaining 7
populations (approximately 47 percent of the total number of
individuals rangewide) means that the threat of detrimental land-use
activities remains in some parts of the species' distribution.
Small Population Size
In the final listing rule (65 FR 3866 at 3869-3870; January 25,
2000), we described the distribution of the rough popcornflower as 17
small patches of 1 to 3,000 plants (8 populations with approximately
7,000 plants total) that were threatened by natural (i.e., flood)
events, anthropogenic (e.g., herbicide treatment) events, or both. At
that time, the species' small population size was considered a threat
because a single natural or human-caused event had the potential to
extirpate rough popcornflower patches.
Due to implementation of recovery actions, including survey efforts
leading to the discovery of previously unknown populations, there are
currently over 2,000,000 plants in 18 populations (see table 1, above).
Twelve of the 18 populations have over 5,000 plants. At the time of
listing, 84% of rough popcornflower individuals were on unprotected
land, but new information gathered through these survey efforts
indicates populations at protected sites have increased such that a
much smaller proportion of individuals (47%) occur on unprotected land.
Although small populations that remain vulnerable to extirpation occur,
individual populations are broadly distributed and the likelihood of a
large-scale event affecting them collectively is unlikely. During years
with below average precipitation, drought, or fires, seed set could
fall short of what is needed to maintain population stability. However,
with a large number of seed produced
[[Page 29080]]
by plants, it is likely that any periodic depletion of seed bank will
be short-term and the seed bank will be replenished (USFWS 2021, p. 7).
One population thought to be extirpated for several years was
documented flowering after 3 years of species absence (Amsberry and
Meinke 2008, p. 14).
At the time of listing, data also indicated that small, isolated
populations may not be able to sustain adequate genetic variation, and
that a lack of connectivity between isolated patches and populations
would limit pollinator-mediated gene flow. Our current analysis of
connectivity for the 18 rough popcornflower populations ranked 11
populations as having high connectivity (within 950 meters (m) (3,117
ft) or less) and 3 populations as having medium connectivity (between
950 and 1,500 m (3,117 and 4,921 ft)) (USFWS 2021, p. 35), indicating
that rough popcornflower populations are less isolated than at the time
of listing. Overall, while the connectivity of small populations is
still of some concern, the species is much less vulnerable to the
effects of small population size and genetic isolation than when it was
listed in 2000.
Herbivory
Herbivory by rodents and livestock has been documented and was
identified as a threat to rough popcornflower (65 FR 3866 at 3871;
January 25, 2000). Although high densities of white-tailed (Odocoileus
virginianus) and black-tailed deer (Odocoileus hemionus hemionus)
overlap with the distribution of rough popcornflower, the best
available information does not indicate that deer herbivory is
adversely impacting rough popcornflower populations (USFWS 2021, p.
23).
Grazing by livestock may or may not be consistent with rough
popcornflower conservation. Grazing of rough popcornflower during its
growing period can be detrimental to the species. However, grazing can
help control nonnative plant competitors and provide a measure of
disturbance that maintains the preferable early seral and open habitat
conditions for rough popcornflower. Four rough popcornflower
populations with more than 5,000 plants each are partially or entirely
on privately-owned grazing lands; the largest single population (more
than 1,000,000 plants) is on a private horse ranch where grazing is
managed in a manner compatible with the long-term survival of rough
popcornflower (USFWS 2021, p. 16). Depending on how grazing is managed,
it can adversely impact or benefit individual populations of rough
popcornflower. With 11 of the 18 populations considered protected or on
adequately managed land, livestock herbivory is not currently
considered a threat to the species overall. However, because formal
commitments for long-term management of livestock grazing for the
benefit of rough popcornflower have not been secured for some
populations (including the largest population of over 1,000,000
plants), these populations remain potentially exposed to this threat
and its impacts.
Nonnative Invasive Plant Encroachment
Nonnative invasive plants, including pennyroyal (Mentha pulegium),
teasel (Dipsacus spp.), creeping thistle (Cirsium arvense), and reed
canary grass (Phalaris arundinacea) are a primary threat to the
establishment and maintenance of rough popcornflower due to their
encroachment of habitat and elimination of bare ground, which
popcornflower seeds require to germinate. Pennyroyal is present at many
rough popcornflower sites, and teasel and creeping thistle control
require constant conservation efforts at the North Bank Habitat
Management Area, Yoncalla South, and TNC/ODOT Popcornswale Preserve
populations.
Rough popcornflower is conservation reliant, and when natural
disturbance events are lacking, active management (e.g., manual
weeding, herbicide application, mowing, and strategic grazing) is
necessary to control competing vegetation and maintain early seral
habitats, which can help rough popcornflower populations persist into
the future (USFWS 2010, p. 27). Nonnative invasive plants appear to be
less of a concern on private lands due to livestock grazing (USFWS
2020, p. 2). Strategic grazing by livestock, in terms of seasonal
grazing periods and intensity, when closely monitored, can benefit
rough popcornflower populations by reducing plant competition and
creating open ground that facilitates seed germination and enables
population expansion (USFWS 2021, p. 24).
While competition with nonnative invasive plants remains an ongoing
threat to rough popcornflower, this threat can be successfully managed
through continued investments in the adaptive management practices that
have resulted in flourishing populations across the species' range
(USFWS 2021, appendices 3 and 4).
Fire
At the time of listing, fire was considered a natural event key to
the formation and maintenance of rough popcornflower habitat (65 FR
3866 at 3867; January 25, 2000). In late September 2003, an accidental
fire burned across the Soggy Bottoms rough popcornflower population at
moderate intensity. The year following the burn, staff noted that
individual rough popcornflower plants were much larger and robust, and
the population had increased. The population dropped significantly
during the following 5 years, although that was considered likely due
to changed site hydrology. While the effects of fire in rough
popcornflower habitat restoration are still unknown (USFWS 2010, p.
27), data collected after the 2003 fire suggest that low- to moderate-
intensity fire can have at least short-term beneficial effects to the
species.
Climate Change
The likely impacts of climate change on rough popcornflower's
ecological processes are closely connected to the availability of
water. Due to their shallow and ephemeral nature, wet swales in
southwestern Oregon are particularly sensitive to increases in
evaporation or reductions in rainfall. Strong climate variability is
likely to persist in the Pacific Northwest, owing in part to the annual
and decadal climate variability associated with the Pacific Ocean (May
et al. 2018, p. 1,039). Models project periods of prolonged drought
interspersed with years featuring heavy rainfall driven by powerful
atmospheric rivers and strong El Ni[ntilde]o winters (May et al. 2018,
p. 1,039). Even modest temperature increases could result in more water
runoff in winter and less in spring and summer, more winter flooding,
and drier summer soils, thereby altering the seasonality and duration
of wetland hydration (Fleishman 2025, pp. 63-64, 75). Reduced soil
moisture due to evaporation and transpiration may exacerbate drought
effects (Fleishman 2025, pp. 74-75). Drought-mediated decreases in
water depth and inundation periods could increase the frequency at
which wetlands dry before rough popcornflower has completed its
flowering and fruiting stages. However, Southern Oregon, along with
other areas in the western United States, has been experiencing a
prolonged drought for several years (Fleishman 2023, p. 52) and rough
popcornflower continued to demonstrate stable or increasing population
trends. Climate change could also cause temperatures to exceed those
suitable for growth of the species (USFWS 2010, p. 28).
The impact of climate change on rough popcornflower will likely
vary depending on site-specific conditions
[[Page 29081]]
and annual precipitation variation. Rough popcornflower individuals are
naturally adaptive to fall and winter inundation and depend on soil
moisture until their seed has matured. An earlier warming trend may
result in a limited seed set because the soil will dry out quicker and
may benefit nonnative plants. Habitat management using herbicides and
prescribed burning would likely increase with an increase in nonnative
plants. However, if climate change in Oregon results in wetter winters
and springs as predicted (Fleishman 2023, pp. 11-12), then the
additional precipitation may lengthen seed set and favor rough
popcornflower survival over competitors unable to adapt to saturated
soils.
Conservation Efforts and Regulatory Mechanisms
Rough popcornflower is a conservation-reliant species, meaning that
the species will require continued conservation efforts to remain
viable (USFWS 2010, p. 30). Since listing the species in 2000, we have
coordinated with local, State, and Federal stakeholders on conservation
actions for the species, some of which we supported with funding.
Mowing in rough popcornflower habitat to control competing
nonnative invasive plant species, and subsequent outplanting of rough
popcornflower, has occurred regularly at several sites. Other
conservation actions include fencing to protect populations from
anthropogenic disturbance; population reintroductions and
augmentations; and stakeholder workshops in which species' needs,
recovery targets, and habitat conservation were discussed to raise
landowner awareness. Agencies and property owners who have made
commitments to protect or manage rough popcornflower and its habitat
are the City of Sutherlin, Oregon; Douglas Soil and Water Conservation
District, Oregon; ODA, Native Plant Conservation Program; the BLM; the
Native Plant Society of Oregon, Umpqua Valley Chapter; and TNC.
In the 2007 City of Sutherlin Conservation Agreement and
Conservation Plan (ODA 2007, entire), the signatories (the Service, the
City of Sutherlin, ODA, the Umpqua Valley Chapter of the Native Plant
Society of Oregon, the Sutherlin Stampede Association, and the
Sutherlin Blackberry Festival, Inc.) agreed to the following measures:
<bullet> Prohibit activities that would disturb or destroy existing
populations of rough popcornflower, or their habitat, on land owned or
managed by the City of Sutherlin;
<bullet> Contract or coordinate appropriately timed surveys for new
populations of rough popcornflower on city-owned or -managed land prior
to initiating ground-disturbing projects;
<bullet> Contact the ODA Native Plant Conservation Program if a new
population of rough popcornflower is found during a pre-project survey
and cooperate with the ODA Native Plant Conservation Program to develop
conservation-based alternatives to proposed projects that would impact
rough popcornflower populations or their habitat; and
<bullet> Cooperate with the ODA Native Plant Conservation Program
to implement a management plan promoting the conservation of the
populations of rough popcornflower at the Red Rock Park (formerly
Timber Days Grounds).
Since 2007, implementation of this Agreement has provided fencing
to protect rough popcornflower populations, reduced competitive and
nonnative invasive species, and increased population numbers. This
agreement was updated in 2023. In the updated agreement, entitled
``Conservation Agreement for Rough Popcornflower,'' the City of
Sutherlin agreed to continue to protect the plant and to extend the
protection to Ford's Pond, a property acquired after the original
signing in 2007. The 2023 agreement also allows reintroduction of the
species at Ford's Pond (USFWS 2023c, p. 8).
The biological opinion on the North Bank Habitat Management Area
issued by the Service in 2001 evaluated the effects of proposed
management actions and conservation measures conducted by the BLM for
three rough popcornflower populations occurring in the management area
(USFWS 2001, p. 15). Proposed management actions included manual and
mechanical removal of competitive vegetation and the use of integrated
pest management techniques to control noxious weeds. Proposed
conservation measures included retaining existing populations and
introducing additional populations into suitable habitat. To date, the
BLM has consistently implemented these management actions and
conservation measures, and the BLM is expected to continue to maintain
and enhance habitat for this species into the future.
The ODOT has established the Special Management Areas program to
protect State-listed and federally listed endangered and threatened
plant species identified on ODOT rights-of-way (ODOT 2017, p. 4).
Special Management Areas are marked with signs that instruct ODOT
maintenance crews on allowable activities. ODOT entered a statewide
habitat conservation plan (HCP) with the Service in 2017 (USFWS 2017,
entire). Under the HCP, the Special Management Areas identify the known
populations of rare plants along ODOT rights-of-way that they have
agreed to avoid impacting. In most cases, only periodic maintenance is
necessary in Special Management Areas, and site-specific restrictions
have been developed to protect listed species.
All federally listed plants in Oregon are also protected by State
law under the Oregon Endangered Species Act (ORS 564.010-.994), and
their protection and conservation are administered by the ODA. The
Oregon Endangered Species Act protects many other plant species in
addition to those protected under the Federal Endangered Species Act.
All State and municipal agencies, including City of Sutherlin, Douglas
County, Douglas Soil and Water Conservation Service, and ODOT must
consult with ODA when a proposed action on land owned or leased by the
State, or for which the State holds a recorded easement, has the
potential to appreciably reduce the likelihood of the survival or
recovery of any listed plant species.
While we do not have a specific agreement in place with TNC that
guarantees a commitment to future management, they have actively
managed the rough popcornflower habitat at their property (the TNC/ODOT
Popcornswale Preserve) since 1995 by monitoring populations,
controlling nonnative invasive species, and managing habitat by
reducing tree cover, mowing, and augmenting the population with
seeding. TNC has continued to manage the TNC/ODOT Popcornswale Preserve
multiple times a year since 1995 and is expected to continue these
efforts.
These and other conservation efforts by us and our partners,
including surveys, have helped increase the number of protected sites
and improve the number of plants in the overall population. Currently,
11 of the 18 known populations throughout the species' range are under
Federal, State, municipal, or land trust protections offering
indefinite protection from habitat conversion to other uses. The
remaining 7 populations (approximately 47 percent of the total number
of individuals) do not have formal commitments for the long-term
beneficial management of rough popcornflower but are benefitting from
voluntary management practices employed by land management agencies and
private landowners.
[[Page 29082]]
Cumulative Effects
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.
Current Condition
Resiliency
Resiliency, the ability of populations to withstand stochastic
events, is commonly determined as a function of metrics such as
population size, growth rate, or habitat quality and quantity. We
evaluated the current resiliency of rough popcornflower populations
based on the population size, habitat quantity, connectivity, habitat
quality, management frequency, reproductive success, and the degree of
protection afforded to each population (see tables 2 through 8, below).
Populations with over 5,000 mature plants were determined to be in high
condition based on the downlisting criteria outlined in the species'
recovery plan. Populations of over 1,000 plants were considered to be
in medium condition, and those with under 200 plants were considered to
be in low condition. We then assigned numerical values to each of the
condition category rankings and added them together to arrive at an
overall resiliency score of each rough popcornflower population, which
we then parsed into high, moderate, and low categories (see table 9,
below). A complete description of our analytical approach to current
condition is available in the SSA report (USFWS 2021, pp. 34-37).
Table 2--Population Size Rankings of Rough Popcornflower Populations From the SSA Report and Subsequent Surveys
----------------------------------------------------------------------------------------------------------------
Number of populations Number of populations
Population size (number of plants) in 2021 in 2024
----------------------------------------------------------------------------------------------------------------
High (>=5,000).................................................... 13 12
Medium (1,000-4,999).............................................. 2 1
Low (1-999)....................................................... 3 5
----------------------------------------------------------------------------------------------------------------
Table 3--Habitat Quantity Rankings of Rough Popcornflower Populations From the SSA Report and Subsequent Surveys
----------------------------------------------------------------------------------------------------------------
Number of populations Number of populations
Habitat quantity (amount) in 2021 in 2024
----------------------------------------------------------------------------------------------------------------
High (>500 m\2\/5,382 ft\2\)...................................... 7 8
Medium (76-500 m\2\/818-5,382 ft\2\).............................. 3 6
Low (<76 m\2\/818 ft\2\).......................................... 8 4
----------------------------------------------------------------------------------------------------------------
Table 4--Connectivity Rankings of Rough Popcornflower Populations From the SSA Report and Subsequent Surveys
----------------------------------------------------------------------------------------------------------------
Connectivity (proximity to next Number of populations
population) * in 2021 Number of populations in 2024
----------------------------------------------------------------------------------------------------------------
High (<950 m/3,117 ft)..................... 11 No change reported.
Medium (950-2,000 m/3,117-6562 ft)......... 3 No change reported.
Low (>2000 m/6,562 ft)..................... 4 No change reported.
----------------------------------------------------------------------------------------------------------------
* Scores are not strictly distance-based if populations are separated by barriers such as development, roads, or
expanses of unsuitable habitat.
Table 5--Habitat Quality Rankings of Rough Popcornflower Populations From the SSA Report and Subsequent Surveys
----------------------------------------------------------------------------------------------------------------
Number of populations Number of populations
Habitat quality (presence of nonnative invasive species) in 2021 in 2024
----------------------------------------------------------------------------------------------------------------
High (no invasive species)........................................ 5 2
Medium (1-2 invasive species)..................................... 8 11
Low (dominated by invasive species)............................... 5 5
----------------------------------------------------------------------------------------------------------------
Table 6--Management Frequency Rankings of Rough Popcornflower Populations From the SSA Report and Subsequent
Surveys
----------------------------------------------------------------------------------------------------------------
Number of populations
Management frequency (interval) in 2021 Number of populations in 2024
----------------------------------------------------------------------------------------------------------------
High (continuous, annual, or biennial)..... 10 No change reported.
Medium (3-5 years)......................... 5 No change reported.
[[Page 29083]]
Low (>5 years)............................. 3 No change reported.
----------------------------------------------------------------------------------------------------------------
Table 7--Reproductive Success Rankings of Rough Popcornflower Populations From the SSA Report and Subsequent
Surveys
----------------------------------------------------------------------------------------------------------------
Number of populations Number of populations
Reproductive success (measures) in 2021 in 2024
----------------------------------------------------------------------------------------------------------------
High (>5,000 plants and 100 percent seed production).............. 15 11
Medium (3,000-5,000 plants, 75-99 percent seed production)........ 1 2
Low (<3,000 plants, 0-74 percent seed production)................. 2 5
----------------------------------------------------------------------------------------------------------------
Table 8--Protected Status Rankings of Rough Popcornflower Populations From the SSA Report and Subsequent Surveys
----------------------------------------------------------------------------------------------------------------
Number of populations
Individuals protected or managed status in 2021 Number of populations in 2024
----------------------------------------------------------------------------------------------------------------
Yes........................................ 11 No change reported.
No......................................... 7 No change reported.
----------------------------------------------------------------------------------------------------------------
Table 9--Overall Resiliency Rankings of Rough Popcornflower Populations From the SSA Report and Subsequent
Surveys
----------------------------------------------------------------------------------------------------------------
Number of populations Number of populations
Overall resiliency in 2021 in 2024
----------------------------------------------------------------------------------------------------------------
High.............................................................. 11 12
Moderate.......................................................... 3 1
Low............................................................... 4 5
----------------------------------------------------------------------------------------------------------------
As shown above in table 9, at the time of the SSA report in 2021,
11 (61 percent) of the 18 rough popcornflower populations scored high
for resiliency, 3 (17 percent) scored moderate, and 4 (22 percent)
scored low. Changes in condition category rankings as a result of
surveys conducted from 2021-2024 (USFWS 2022, entire; USFWS 2023a,
entire; USFWS 2025, entire) resulted in overall resiliency rankings of
12 (67 percent) high, 1 (5 percent) moderate, and 5 (28 percent) low.
Some changes in condition category rankings from 2021 to 2024 reflect
variability in survey timing and optimal blooming for the rough
popcornflower populations, which may be asynchronous. For example, some
populations may reach optimal blooming in late May one year and mid-
June in others, and surveys may not capture all populations at their
peak. Additionally, one population (Red Rock) underwent some mowing and
clearing that impacted the growing area at that site. Nevertheless, the
overall condition results demonstrate relatively high resiliency across
the range of the rough popcornflower.
Redundancy
Redundancy is a species' ability to withstand catastrophic events
and is a function of the number and resilience of populations, as well
as their distribution and connectivity. At the time of listing, there
were eight known rough popcornflower populations. Currently, there are
18 known populations. Some of this increase is due to newly discovered
populations; however, since the time of listing, habitat restoration,
reintroductions, and habitat protection have collectively improved the
status of the species. Of the 18 known populations, 12 populations
score high for overall resiliency and are distributed across the range
of the species, with 6 in the Sutherlin Creek recovery unit, 2 in the
Yoncalla Creek recovery unit, 1 in the Calapooya recovery unit, and 3
in the Umpqua Management Area. The six populations with moderate or low
resiliency contribute to the species' redundancy to a lesser degree and
are distributed across the Calapooya Creek and Sutherlin Creek recovery
units. The distribution of 12 populations with high resiliency across
all 3 recovery units and the management area demonstrates the species'
ability to withstand catastrophic events.
Representation
Representation refers to the ability of a species to adapt to
change, and is assessed using geographic, genetic, ecological, and
niche diversity data. Ecological diversity and genetic variation based
on habitat differences, differences in annual and biennial life
histories, and differences in growth forms may be inferred from the
rough popcornflower's distribution across different sub-watersheds.
Multiple populations with high resiliency throughout the species'
range, along with populations of lesser resiliency, facilitate the
preservation of the genetic diversity present within each recovery
unit. Although populations with fewer than 5,000 plants may have lower
genetic variation, rough popcornflower's wide variety of possible
pollinators (Amsberry and Meinke 2001, pp. 12-13) assists in gene
transfer and could boost the genetic variation of these populations.
Natural and reintroduced rough popcornflower populations are
[[Page 29084]]
currently distributed in multiple subwatersheds across the species'
historical range, and plants demonstrate diversity within and between
populations, including different growth forms and flowering times.
Additionally, rough popcornflower seeds do not all germinate every
year, and a portion of the seed bank likely remains in the ground. The
presence of a long-term seed bank allows rough popcornflower to persist
through periods of adverse environmental conditions. In combination,
these factors indicate that the species has the capacity to adapt to a
variety of environmental conditions.
Future Condition
To assess the future viability of rough popcornflower, we
considered the factors that will influence the species within the
foreseeable future. We define the foreseeable future as 30 years, as we
consider this a reasonable timeframe to make reliable predictions about
the threats to this species and its response to those threats due to
this plant's reproductive strategy as an annual or short-lived
perennial. Our viability assessment is characterized in terms of the
resiliency, redundancy, and representation of the species as projected
under various future conditions that capture the range of plausible
outcomes (Shaffer and Stein 2000 pp. 306-310; Wolf et al. 2015, entire;
Smith et al. 2018, pp. 304, 306-307). We projected the viability of
rough popcornflower from 2020 to 2050 under three plausible future
scenarios based on potential trends with conservation partners, climate
patterns, and population demographics. Scenario A represented
improvements over current conditions. Scenario B represented the most
likely conditions if current trends continue. Scenario C represented
conditions that are worse than current conditions.
Scenario A, the upper plausible limit, assumes continued
conservation support for the rough popcornflower including from private
landowners throughout the species' range, as well as additional funding
for outplanting and nonnative invasive vegetation control. Scenario B
is the most likely scenario for the rough popcornflower based on
current Federal and State agency commitments, outplanting successes,
the current ability to place conservation agreements, and species'
population demographic trends. We discuss scenario B further below.
Scenario C assumes diminished habitat conditions and a decreased level
of management actions (e.g., mowing, manual or chemical control of
nonnative invasive herbaceous plants, prescribed burning) from current
levels, falling short of what is needed and resulting in the reduction
of the species' resiliency, redundancy, and representation over the
next 30 years. For further details on all three scenarios, see the SSA
report (USFWS 2021, pp. 41-47).
We determined that rough popcornflower is expected to continue to
be influenced by the factors that have historically influenced and are
currently influencing the species, at rates most closely associated
with scenario B. Therefore, scenario B represents the most likely
conditions if current trends continue (USFWS 2021, pp. 44-45). In
scenario B, we made several assumptions about ongoing conservation
support within the foreseeable future. Several conservation partners
(government agencies, nonprofit conservation organizations, academic
institutions, and private landowners) have made significant
contributions to recovery efforts for rough popcornflower. We assume
that these partners will continue to collaborate and contribute
conservation resources to rough popcornflower and its habitat based on
current regulations and agency commitments, outplanting successes, and
our ability to obtain conservation agreements. Continued outreach
efforts are likely to support awareness of the species among private
landowners and the public and to generate support for conservation. We
also assume that development projects will continue to be evaluated by
the Service, the Oregon Department of State Lands, and the ODA, and be
modified to minimize or mitigate impacts to rough popcornflower and its
habitats.
Under a continually increasing greenhouse gas emission scenario,
Oregon's annual average temperature is projected to increase by 2.8
degrees Celsius ([deg]C)) (5 degrees Fahrenheit ([deg]F)) by 2074
(Fleishman 2025, p. 7). In this emission scenario, the amount of annual
precipitation is projected to be highly uncertain. Summers are expected
to warm more than the annual average and are likely to become drier.
Extreme heat and precipitation events are expected to become more
frequent (Dalton et al. 2017, p. 8). The effects of climate change on
rough popcornflower populations are expected to be relatively moderate.
Most rough popcornflower plants are expected to adjust to warmer
temperatures by dispersal of seeds to moister habitats (via ungulates,
other mammals, or birds), flowering earlier, and shortening their
flowering period (USFWS 2021, p. 42). Climate change may limit rough
popcornflower's growing season and habitat as well as moisture
availability, though the species would likely continue to maintain
viability within the three recovery units and the introduced
populations at the Umpqua Management Area (USFWS 2021, p. 45). Given
differences in microsites and management across populations, we expect
some populations may fare better than others under future conditions.
For species resiliency in Scenario B, we expect there will be a
total of 20 rough popcornflower populations, increasing from the
current total of 18 populations due to recovery efforts such as
reintroductions. At least 10 of those populations are anticipated to be
in protected areas (reserves), contain populations that meet or exceed
5,000 plants, and exhibit stable or increasing population counts in 7
out of 10 years (see table 10, below). In terms of redundancy,
protected rough popcornflower populations are expected to continue to
be distributed in all three recovery units. With a total of 20
populations widely distributed across the species' range, we do not
anticipate a catastrophic event, such as extreme flooding, would impact
all populations of rough popcornflower simultaneously. Thus, we find
that the rough popcornflower will likely be able to withstand
catastrophic events.
Table 10--Future Viability of Rough Popcornflower Under a Moderate
Future Scenario
------------------------------------------------------------------------
Viability elements Expected condition
------------------------------------------------------------------------
Population Resilience.................. Protected populations (>=10)
meet or exceed criterion of
>=5,000 individual stems and
show stable or positive
demographic trends. The total
population number is 20.
Stable or increasing
population counts occur 7 out
of 10 years.
Species Redundancy..................... Redundancy is provided by
having 20 populations present
across the range to withstand
catastrophic events.
[[Page 29085]]
Species Representation................. 20 populations, distributed
across the range of the
species, would provide genetic
and ecological diversity for
the species. No evidence of
inbreeding depression.
Overall Viability...................... Moderate: The species is able
to adapt to climate change,
and species receives adequate
monitoring to inform
management needs. Species
requires continued management.
------------------------------------------------------------------------
For species representation, rough popcornflower populations are
expected to be well distributed across all three recovery units and the
Umpqua Management Area. We expect genetic diversity will likely be
maintained in the foreseeable future, as future projections show at
least 10 populations will likely exceed the effective population size
necessary to sustain genetic diversity over time. An increase in
connectivity due to larger populations will also reduce the likelihood
of population isolation.
Collectively, our analysis of the resiliency, redundancy, and
representation under this scenario indicates that the viability of the
rough popcornflower is not likely to be significantly reduced over the
next 30 years. However, some populations remain genetically isolated,
and competition with nonnative invasive plants remains an ongoing
threat to the species. Rough popcornflower also has the potential to be
negatively impacted by climate change in the foreseeable future,
primarily due to increased variability of precipitation leading to
periods of prolonged drought interspersed with years of heavy rainfall.
Determination of Rough Popcornflower Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines an ``endangered species'' as a
species in danger of extinction throughout all or a significant portion
of its range, and a ``threatened species'' as a species likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether a species meets the definition of an endangered
species or a threatened species because of any of the following
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence.
Status Throughout All of Its Range
After evaluating threats to the species and assessing the
cumulative effect of the threats under the section 4(a)(1) factors, we
found that the primary threats to rough popcornflower, since the time
of listing, have been the destruction and/or alteration of habitat by
development and hydrological changes (e.g., wetland fills, draining,
construction), competition from nonnative invasive plant species,
impacts due to climate change (e.g., winter flooding, drier summer
soils, and decreased fruit production), and lack of regulatory
mechanisms. The best available information does not indicate that
overcollection (Factor B) or herbivory (Factor C) are threats to the
viability of the rough popcornflower. Our current analysis also
indicates that the habitat threats (Factor A) and threats from the
inadequacy of regulatory mechanisms (Factor D) have decreased since the
time of listing, while climate change and competitive exclusion from
nonnative invasive plants (Factor E) will likely require ongoing
monitoring and management.
Habitat-related threats (destruction, alteration, or both of
habitat and competition from nonnative invasive plant species),
identified as drivers of the rough popcornflower's status, are still
present on the landscape; however, their magnitude and scope have
decreased from historical levels and have been offset by a variety of
management and conservation measures by many conservation partners
since the rough popcornflower was listed as an endangered species (see
65 FR 3866; January 25, 2000), and these conservation actions continue
today (USFWS 2021, p. 25 and appendix 3). While there is still
fluctuation in nonnative invasive plant species growth depending on
factors such as changes to maintenance routines that include targeted
herbicide application, mowing and clearing, improvements in habitat
management practices and extensive habitat restoration have been
implemented, which have improved population resiliency and redundancy
at several sites. Increased public awareness of the species has
resulted in increased stewardship across lands with rough popcornflower
populations and improved regulatory compliance. Greater understanding
and compliance along with improvements in habitat management practices
and extensive habitat restoration have helped ameliorate threats to the
species, resulting in population increases and greater distribution. A
majority of the rough popcornflower population sites (11 of 18) are
protected by public ownership or managed to benefit the species; with
these site protections and increased public knowledge of the species,
compliance with regulatory mechanisms has increased significantly.
At the time of listing, rough popcornflower was known to exist in
only 8 populations totaling 7,000 plants. There are currently 18 known
populations totaling more than 2,000,000 plants. Although almost half
(1,000,000) of the plants are within a single population, there are 17
other populations comprising more than 1,000,000 rough popcornflower
plants distributed across the range of the species; 11 of these
populations are considered protected or managed. Although the plants
and populations are not distributed precisely as identified in
downlisting criteria (USFWS 2019, pp. 4-6), the population size (both
the number of plants and the physical area covered) in two of the three
recovery units and the additional recovery management area exceed the
target population size by unit/area. Our viability analysis determined
that the species currently has high resiliency, good redundancy, and
sufficient representation (USFWS 2021, pp. 32-41). Thus, after
assessing the best scientific and commercial data available, we
conclude that the rough popcornflower is not in danger of extinction
throughout all of its range.
We therefore proceed with determining whether the rough
popcornflower is likely to become
[[Page 29086]]
endangered within the foreseeable future throughout all of its range.
The best available information indicates that, at the species
level, the most influential factors affecting rough popcornflower into
the future are habitat-related threats (destruction, alteration, or
both of habitat and competition from nonnative invasive plant species)
(Factor A) and climate change (Factor E), which will likely cause more
winter flooding, drier summer soils, and decreased fruit production. In
our analysis of future viability (USFWS 2021, pp. 41-47), under the
moderate (Scenario B) and better than expected (Scenario A) scenarios,
we predict the species' resiliency, redundancy, and representation to
be stable or increasing within the next 30 years. While a continuation
of current conservation efforts as modeled under our moderate scenario
is most likely, 7 of the 18 known populations (approximately 47 percent
of the total number of plants) do not have formal commitments for long-
term beneficial management of rough popcornflower and continued
beneficial management is not assured.
Additionally, under our worse than expected scenario, we predict
the species' resiliency, redundancy, and representation to diminish
within the next 30 years. Although this scenario is considered the
least likely to occur, diminished habitat conditions along with reduced
management actions and agency commitments are plausible and would
likely lead to long-term demographic declines, reductions in the number
of populations, and reduced genetic diversity.
Thus, after assessing the best scientific and commercial data
available, we conclude that the rough popcornflower is not in danger of
extinction, but is likely to become in danger of extinction within the
foreseeable future throughout all of its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
within the foreseeable future throughout all or a significant portion
of its range. The court in Center for Biological Diversity v. Everson,
435 F. Supp. 3d 69 (D.D.C. 2020) (Everson), vacated the provision of
the Final Policy on Interpretation of the Phrase ``Significant Portion
of Its Range'' in the Endangered Species Act's Definitions of
``Endangered Species'' and ``Threatened Species'' (hereafter Final
Policy; 79 FR 37578; July 1, 2014) that provided that if the Service
and National Marine Fisheries Service (together, the Services)
determine that a species is threatened throughout all of its range, the
Services will not analyze whether the species is endangered throughout
a significant portion of its range.
Therefore, we proceed to evaluating whether the species is
endangered throughout a significant portion of its range--that is,
whether there is any portion of the species' range for which both (1)
the portion is ``significant''; and (2) the species is in danger of
extinction in that portion. We can choose to address either question
first. Regardless of which question we address first, if we reach a
negative answer with respect to the first question that we address, we
do not need to evaluate the other question for that portion of the
species' range.
Following the court's holding in Everson, we now consider whether
the species is in danger of extinction throughout a significant portion
of its range. In undertaking this analysis for rough popcornflower, we
choose to address the status question first--we consider information
pertaining to the geographic distribution of both the species and the
threats that the species faces to identify portions of the range where
the species may be endangered.
We evaluated the range of the rough popcornflower to determine if
the species is in danger of extinction throughout any portion of its
range. The range of a species can theoretically be divided in an
infinite number of ways. We focused our analysis on portions of the
species' range that may meet the Act's definition of an endangered
species. For rough popcornflower, we considered whether the threats or
their effects on the species are greater in any biologically meaningful
portion of the species' range than in other portions such that the
species is in danger of extinction in that portion. We divided the
range of the rough popcornflower in several ways (e.g., populations,
recovery units) for the purposes of our viability analyses in the SSA
report (Service 2021, entire). For the purpose of evaluating
significant portion of the range, we divided the range into three
recovery units (Sutherlin Creek, Yoncalla Creek, and Calapooya Creek)
that correspond to drainage basins within the Lower North Umpqua system
and represent groups of populations which share phenotypic similarities
and are potentially genetically similar to one another. This scale is
appropriate for considering whether the species may be in danger of
extinction in any portion of the range.
We examined the following threats: habitat loss and fragmentation,
small population size, nonnative invasive plant encroachment, fire, and
climate change, including cumulative effects. We considered the effects
of these threats on the rough popcornflower within each of the three
recovery units.
As discussed above, thanks in part to recovery efforts from
multiple stakeholders, the rough popcornflower has increased to over
2,000,000 plants in 18 populations. In two of the three recovery units
there are at least two populations that meet or exceed the resiliency
criterion size of 5,000 individuals surpassing a patch size of 500 m\2\
(5,382 ft\2\), indicating they have a high probability of persistence
over the next 30 years. The remaining recovery unit has a population
well over 5,000 individuals that does not yet meet the area requirement
but is also expected to persist.
The rough popcornflower has a current distribution that is
analogous to its historical range in all three recovery units (USFWS
2021, p. 39). Near-term threats are similar for all populations
distributed throughout the recovery units. The rough popcornflower is a
conservation reliant species, and in each recovery unit populations
receive some form of habitat management in the form of mowing, grazing,
prescribed burning, or nonnative invasive plant control to address the
near-term threats (USFWS 2021, p. 38).
Given the distribution of resilient populations across recovery
units, the uniformity of the near-term threats to the species within
each unit and ongoing conservation measures addressing those threats,
there is no one recovery unit that has a different status from its
range-wide status. In summary, we found no portion of the rough
popcornflower range where threats are impacting individuals differently
from how they are affecting the species elsewhere in its range, or
where the biological condition of the species differs from its
condition elsewhere in its range such that the status of the species in
that portion does not differ from any other portion of the species'
range.
Therefore, no portion of the species' range provides a basis for
determining that the species is in danger of extinction throughout a
significant portion of its range, and we determine that the species is
likely to become in danger of extinction within the foreseeable future
throughout all of its range. This does not conflict with the courts'
holdings in Desert Survivors v. U.S. Department of the Interior, 321 F.
Supp. 3d 1011, 1070-74 (N.D. Cal. 2018)
[[Page 29087]]
and Center for Biological Diversity v. Jewell, 248 F. Supp. 3d 946, 959
(D. Ariz. 2017) because, in reaching this conclusion, we did not apply
the aspects of the Final Policy, including the definition of
``significant'' that those court decisions held were invalid.
Determination of Status
Based on the best scientific and commercial data available, we
determine that the rough popcornflower no longer meets the Act's
definition of an endangered species but does meet the Act's definition
of a threatened species, because it is likely to become in danger of
extinction within the foreseeable future throughout all of its range.
Therefore, we are reclassifying the rough popcornflower from an
endangered species to a threatened species in accordance with sections
3(20) and 4(a)(1) of the Act.
Available Conservation Measures
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. Once we have downlisted the rough popcornflower, conservation
measures continue to be provided to species listed as threatened
species under the Act including recognition as a listed species,
planning and implementation of recovery actions, requirements for
Federal protection, and prohibitions against certain practices. As
discussed above, we developed a strategy in our rough popcornflower
recovery plan (USFWS 2003b and 2019a) to downlist the species by
conserving populations throughout its range by augmenting existing
populations, seeding, and through the use of formal habitat restoration
agreements. In addition, section 7(a)(1) and 7(a)(2) responsibilities
of Federal agencies remain.
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 rough popcornflower that
may be subject to consultation procedures under section 7 are
management of Federal lands administered by the BLM, as well as actions
that require a Federal permit (such as a permit from the U.S. Army
Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C.
1251 et seq.)) or actions funded by Federal agencies, such as the
Federal Highway Administration, Federal Aviation Administration, or the
Federal Emergency Management Agency. Federal actions not affecting
listed species or critical habitat--and actions on State, Tribal,
local, or private lands that are not federally funded, authorized, or
carried out by a Federal agency--do not require section 7 consultation.
Federal agencies should coordinate with the local Service Field Office
(see FOR FURTHER INFORMATION CONTACT) with any specific questions on
Section 7 consultation and conference requirements.
Please let us know if you are interested in participating in
recovery efforts for the rough popcornflower. Additionally, we invite
you to submit any new information on this species whenever it becomes
available and any information you may have for recovery implementation
purposes (see FOR FURTHER INFORMATION CONTACT).
Section 9 of the Act provides a specific list of prohibitions for
endangered species but does not provide these same prohibitions for
threatened species. Instead, pursuant to section 4(d) of the Act, for
any species listed as a threatened species, the Secretary must issue
protective regulations that are ``necessary and advisable to provide
for the conservation of such species'' (these are referred to as ``4(d)
rules). Additional measures for the rough popcornflower are described
below (see Protective Regulations Under Section 4(d) of the Act,
below).
We may issue permits to carry out otherwise prohibited activities
involving threatened plants under certain circumstances. Service
regulations governing permits for threatened plants are codified at 50
CFR 17.72, and general Service permitting regulations are codified at
50 CFR part 13. With regard to threatened 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 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. Although most of the prohibitions in section 9 of
the Act apply to endangered species, sections 9(a)(1)(G) and 9(a)(2)(E)
of the Act prohibit the violation of any regulation under section 4(d)
pertaining to any threatened species of fish or wildlife, or threatened
species of plant, respectively. Section 4(d) of the Act directs the
Secretary to promulgate protective regulations that are necessary and
advisable for the conservation of threatened species. As a result, when
we list a species as a threatened species, to the extent possible, we
identify activities that will or will not be considered likely to
result in violation of the protective regulations under section 4(d)
for that species.
At this time, we are unable to identify specific activities that
will or will not be considered likely to result in violation of section
9 of the Act beyond what is already clear from the descriptions of
prohibitions and exceptions established by protective regulation under
section 4(d) of the Act.
Questions regarding whether specific activities would constitute
violation of section 9 of the Act should be directed to the Oregon Fish
and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
II. Protective Regulations Under Section 4(d) of the Act
Background
As discussed in Available Conservation Measures, section 9 of the
[[Page 29088]]
Act provides a specific list of prohibitions for endangered species but
does not provide these same prohibitions for threatened species.
Instead, pursuant to section 4(d) of the Act, for any species listed as
a threatened species, the Secretary must issue protective regulations
that are ``necessary and advisable to provide for the conservation of
such species'' (these are referred to as ``4(d) rules''). Section 4(d)
of the Act contains two sentences. The first sentence states that the
Secretary shall issue such regulations as they deem necessary and
advisable to provide for the conservation of species listed as
threatened species. Conservation is defined in the Act to mean the use
of all methods and procedures which are necessary to bring any
endangered species or threatened species to the point at which the
measures provided pursuant to the Act are no longer necessary.
Additionally, the second sentence of section 4(d) of the Act states
that the Secretary may by regulation prohibit with respect to any
threatened species any act prohibited under section 9(a)(1), in the
case of fish or wildlife, or section 9(a)(2), in the case of plants.
With these two sentences in section 4(d), Congress delegated broad
authority to the Secretary to determine what protections would be
necessary and advisable to provide for the conservation of threatened
species, and even broader authority to put in place any of the section
9 prohibitions, for a given species.
Courts have recognized the extent of the Secretary's discretion
under section 4(d) to develop regulations that are appropriate for the
conservation of threatened species. For example, courts have upheld, as
a valid exercise of agency authority, rules developed under section
4(d) that included limited prohibitions against takings (see Alsea
Valley Alliance v. Lautenbacher, 2007 WL 2344927 (D. Or. 2007);
Washington Environmental Council v. National Marine Fisheries Service,
2002 WL 511479 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules
that do not address all of the threats a species faces (see State of
Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the
legislative history when the Act was initially enacted, ``once an
animal is on the threatened list, the Secretary has an almost infinite
number of options available to [them] with regard to the permitted
activities for those species. [They] may, for example, permit taking,
but not importation of such species, or [they] may choose to forbid
both taking and importation but allow the transportation of such
species'' (H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973).
Under our section 4(d) authorities, we put in place protections
intended to both prevent a threatened species from becoming an
endangered species and to promote its recovery. Section 4(d) rules
explain what is prohibited for a threatened species, thus making the
activity unlawful without a permit or authorization under the Act for
the prohibited activity unless otherwise excepted in the 4(d) rule and
may also include affirmative requirements. Section 4(d) rules are
therefore directly related to what actions may require permits in the
future. As discussed in Available Conservation Measures, permits may be
issued for purposes described in our threatened plant species
permitting regulations at 50 CFR 17.72, including for recovery actions,
conservation benefit agreements (previously referred to as candidate
conservation agreements with assurances and safe harbor agreements), or
habitat conservation plans. We may also except otherwise prohibited
activities through a 4(d) rule itself, in which case threatened species
permits would not be required for those activities. For example, there
are two categories of exceptions that we frequently include in 4(d)
rules, and these are for otherwise prohibited acts or forms or amounts
of ``take'' that are: (1) unavoidable while conducting beneficial
actions for the species, or (2) considered inconsequential (de minimis)
to the conservation of the species. For otherwise prohibited take
activities that require section 10 permits, programmatic approaches--
such as general conservation plans and template habitat conservation
plans--may be available as another way for project proponents to comply
with take prohibitions or requirements applicable to one or more
species while reducing the time that would otherwise be associated with
developing individual permit applications. In addition, the Service and
project proponents can reduce the need for such permits by developing
standardized conservation measures that avoid the risk of ``take.''
The provisions of this species' protective regulations under
section 4(d) of the Act are one of many tools that we will use to
promote the conservation of the rough popcornflower. Nothing in 4(d)
rules changes in any way the recovery planning provisions of section
4(f) of the Act or the consultation requirements under section 7 of the
Act. As mentioned previously in Available Conservation Measures,
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they authorize, fund, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. These
requirements are the same for a threatened species regardless of what
is included in a 4(d) rule.
Section 4(d) rules do not alter section 7 obligations, including
the criteria for informal or formal consultations or the analytical
process used for biological opinions or concurrence letters. Section 7
consultation is required for Federal actions that ``may affect'' a
listed species regardless of whether take caused by the activity is
prohibited or excepted by a 4(d) rule. For example, as with an
endangered species, if a Federal agency determines that an action is
``not likely to adversely affect'' a threatened species, this will
require the Service's written concurrence (50 CFR 402.13(c)).
Similarly, if a Federal agency determines that an action is ``likely to
adversely affect'' a threatened species, the action will require formal
consultation with the Service and the formulation of a biological
opinion (50 CFR 402.14(a)). Because consultation obligations and
processes are unaffected by 4(d) rules, we may consider developing
tools to streamline future intra-Service and inter-Agency consultations
for actions that result in forms of take that are not prohibited by the
4(d) rule (but that still require consultation). These tools may
include consultation guidance, online consultation processes via the
Service's digital project planning tool (Information for Planning and
Consultation; <a href="https://ipac.ecosphere.fws.gov/">https://ipac.ecosphere.fws.gov/</a>), template language for
biological opinions, or programmatic consultations.
Provisions of the 4(d) Rule
Exercising the Secretary's authority under section 4(d) of the Act,
we have developed a rule that is designed to address the rough
popcornflower's conservation needs. As discussed previously in Summary
of Biological Status and Threats, we have concluded that rough
popcornflower is likely to become in danger of extinction within the
foreseeable future primarily due to habitat loss and fragmentation,
nonnative invasive plant encroachment, and impacts due to climate
change (e.g., winter flooding, drier summer soils, and decreased fruit
production). Section 4(d) requires the Secretary to issue such
regulations as they deem necessary and advisable to provide for the
conservation of each threatened species and authorizes the Secretary to
include
[[Page 29089]]
among those protective regulations any of the prohibitions that section
9(a)(2) of the Act prescribes for endangered species (In re: Polar Bear
Endangered Species Act Listing and 4(d) Rule Litigation, 818 F. Supp.
2d 214, 228 (D.D.C. 2011) (citing Sweet Home Chapter of Cmtys. for a
Great Or. v. Babbitt, 1 F.3d 1, 8 (D.C. Cir. 1993), rev'd on other
grounds, 515 U.S. 687 (1995))). Our necessary and advisable
determination includes consideration of conservation and economic
impacts (Kansas Natural Resources Coalition, et al. v. USFWS, et al.
No. 23-CV-00159-DC-RCG (W.D. Tex. 2025). We explain below why we find
that the prohibitions and exceptions in this final rule as a whole
satisfy the requirement in section 4(d) of the Act to issue regulations
deemed necessary and advisable to provide for the conservation of rough
popcornflower.
The protective regulations for rough popcornflower incorporate
prohibitions from section 9(a)(2) to address the threats to the
species. We include the following prohibitions of section 9(a)(2) of
the Act, and implementing regulations codified at 50 CFR 17.61, which
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. These
protective regulations include these prohibitions for the rough
popcornflower because the rough popcornflower is likely to become
endangered within the foreseeable future and putting these prohibitions
in place will help to prevent declines and preserve the species'
remaining populations.
As discussed above in Summary of Biological Status and Threats,
habitat loss and fragmentation, nonnative invasive plant encroachment,
and impacts due to climate change (e.g., winter flooding, drier summer
soils, and decreased fruit production), are affecting the status of the
rough popcornflower. Almost 63,000 rough popcornflower plants are known
to occur on lands owned and managed by the BLM. Regulating activities
on lands under Federal jurisdiction (e.g., lands managed by BLM) and 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 through our application of 50 CFR 17.61(c)(1) would help reduce the
severity of the threat of habitat loss and fragmentation. As discussed
above, all federally listed plants in Oregon are also protected by
State law under the Oregon Endangered Species Act (ORS 564.010-.994),
and their protection and conservation are administered by the ODA. All
State and municipal agencies, including City of Sutherlin, Douglas
County, Douglas Soil and Water Conservation District, and ODOT must
consult with ODA when a proposed action on land owned or leased by the
State, or for which the State holds a recorded easement, has the
potential to appreciably reduce the likelihood of the survival or
recovery of any listed plant species. The 4(d) rule makes any known
violation of these laws when removing, cutting, digging up, or damaging
or destroying the species a violation of the Act.
In addition, we are regulating import, export, and intrastate or
foreign commerce of rough popcornflower (50 CFR 17.61 (b), (d), and
(e)). While collection and associated commerce of the species is not
known to pose a threat to the species, regulating these activities will
reduce the potential for this becoming a threat in the future.
Collection of the species for ornamental purposes could exacerbate the
ongoing threat to the species due to its limited range and small
population size. These activities are currently regulated for rough
popcornflower, and permits are currently available for these otherwise
prohibited activities according to section 10 of the Act and
regulations for endangered plants at 50 CFR 17.62. Should anyone wish
to engage in these activities going forward, the permitting
requirements at 50 CFR 17.72 are less than those currently required and
we therefore anticipate reduced regulatory costs associated with these
prohibitions.
The 4(d) rule will also provide for the conservation of the species
by allowing exceptions that are intended to incentivize conservation
actions or actions that are not expected to rise to the level that
would have a negative impact (i.e., would have only de minimis impacts)
on the species' conservation.
Exceptions to the prohibitions include those set forth in 50 CFR
17.71(b). To further the conservation of the species, any employee or
agent of the Service, any other Federal land management agency,
federally recognized Tribe, or a State conservation agency, who is
designated by their agency or Tribe for such purposes, may, when acting
in the course of official duties, remove and reduce to possession
threatened plants from areas under Federal jurisdiction without a
permit if such action is necessary to: (i) Care for a damaged or
diseased specimen; (ii) dispose of a dead specimen; or (iii) salvage a
dead specimen that may be useful for scientific study. Any removal and
reduction to possession must be reported in writing to the Office of
Law Enforcement, via contact methods listed at <a href="https://www.fws.gov">https://www.fws.gov</a>,
within 5 calendar days. The specimen may only be retained, disposed of,
or salvaged under directions from the Office of Law Enforcement.
We recognize the special and unique relationship that we have with
our State natural resource agency partners in contributing to
conservation of listed species. State agencies often possess scientific
data and valuable expertise on the status and distribution of
endangered, threatened, and candidate species of wildlife and plants.
State agencies, because of their authorities and their close working
relationships with local governments and landowners, are in a unique
position to assist us in implementing all aspects of the Act. In this
regard, section 6 of the Act provides that we must cooperate to the
maximum extent practicable with the States in carrying out programs
authorized by the Act. Therefore, any qualified employee or agent of a
State conservation agency that is a party to a cooperative agreement
with us in accordance with section 6(c) of the Act, who is designated
by their agency for such purposes, will be able to conduct activities
designed to conserve rough popcornflower that may result in otherwise
prohibited activities without additional authorization.
In addition, any employee or agent of the Service, who is
designated by their agency for such purposes, may, when acting in the
course of official duties, remove and reduce to possession from areas
under Federal jurisdiction rough popcornflower plants.
We recognize the beneficial and educational aspects of activities
with seeds of cultivated plants, which generally enhance the
propagation of the species and, therefore, would satisfy permit
requirements under the Act. We intend to monitor the interstate and
foreign commerce and import and export of these specimens in a manner
that will not inhibit such activities,
[[Page 29090]]
providing the activities do not represent a threat to the survival of
the species in the wild. In this regard, seeds of cultivated specimens
would not be subject to the prohibitions above, provided that a
statement that the seeds are of ``cultivated origin'' accompanies the
seeds or their container (e.g., the seeds could be moved across State
lines for purposes of seed banking or use for outplanting without
additional regulations).
Finally, we may under certain circumstances issue permits to carry
out one or more otherwise-prohibited activities, including those
described above. The regulations that govern permits for threatened
plants state that the Director may issue a permit authorizing any
activity otherwise prohibited with regard to threatened species. A
permit may be issued for the following purposes: for scientific
purposes, to enhance propagation or survival, for economic hardship,
for botanical or horticultural exhibition, for educational purposes, or
for other purposes consistent with the purposes and policy of the Act
(50 CFR 17.72). As mentioned above, the permitting requirements for
threatened species are less than those for endangered species.
Additional statutory exemptions from the prohibitions are found in
sections 9 and 10 of the Act.
The 4(d) rule provides for the conservation of rough popcornflower
because it will regulate activities that pose a threat to the species
or that may become a threat in the future. This 4(d) rule provides
increased flexibilities in management for rough popcornflower through
additional exceptions at 50 CFR 17.71(b) instead of current exceptions
at 50 CFR 17.61(c)(2-4). The 4(d) rule also provides for reduced
permitting requirements for otherwise prohibited activities through
permitting regulations at 50 CFR 17.72 instead of requirements under
section 10(c) of the Act and regulations at 50 CFR 17.62 (current
permitting as an endangered species). Please see our November 25, 2025
``Consideration of Economic Impacts for the Proposed 4(d) Rule for the
Rough Popcornflower'' on <a href="https://www.regulations.gov">https://www.regulations.gov</a> for our
consideration of economic impacts. The 4(d) rule's increased
flexibilities and reduced permitting requirements result in an overall
reduction in any potential economic impacts due to these reduced
regulatory requirements. Where there is a Federal nexus, the 4(d) rule
does not change any obligations under section 7 of the Act. Therefore,
after considering the conservation needs of the species and the
economic impacts of the 4(d) rule, we have determined that the 4(d)
rule is necessary and advisable to provide for the conservation of the
species.
Required Determinations
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; title II of Public Law 104-121, March 29, 1996), whenever
an agency is required to publish a notice of rulemaking for any
proposed or final rule, it must prepare and make available for public
comment a regulatory flexibility analysis that describes the effects of
the rule on small entities (i.e., small businesses, small
organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of the agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. The SBREFA amended the RFA to
require Federal agencies to provide a certification statement of the
factual basis for certifying that the rule will not have a significant
economic impact on a substantial number of small entities.
While we do not conduct RFA analyses on our classification
determinations under the Act, in accordance with recent caselaw (Kansas
Natural Resources Coalition, et al. v. USFWS, et al. No. 23-CV-00159-
DC-RCG (W.D. Tex. 2025)) we comply with RFA through consideration of
conservation and economic impacts when promulgating 4(d) rules.
During the development of this final rule, we reviewed and
evaluated all information submitted during the comment period on the
proposed rule (89 FR 99811; December 11, 2024) that may pertain to our
consideration of the probable impacts of the 4(d) rule. As discussed
above, there are no new regulatory requirements due to the 4(d) rule.
Prior to the effective date of this final rule, the rough popcornflower
was an endangered species and all section 9(a)(2) prohibitions applied
with limited exceptions. This final 4(d) rule provides increased
flexibilities in management and reduced permitting requirements for the
rough popcornflower. Please see our November 25, 2025 ``Consideration
of Economic Impacts for the 4(d) Rule for the Rough Popcornflower'' on
<a href="https://www.regulations.gov">https://www.regulations.gov</a> for our consideration of economic impacts.
We certify that this 4(d) rule will not have a significant economic
impact on a substantial number of small entities, and a regulatory
flexibility analysis is not required.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
Regulations adopted pursuant to section 4(a) of the Act are exempt
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et
seq.) and do not require an environmental analysis under NEPA. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This includes
listing, delisting, and reclassification rules, as well as critical
habitat designations and species-specific protective regulations
promulgated concurrently with a decision to list or reclassify a
species as threatened. The courts have upheld this position (e.g.,
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995) (critical
habitat); Center for Biological Diversity v. U.S. Fish and Wildlife
Service., 2005 WL 2000928 (N.D. Cal. Aug. 19, 2005) (concurrent 4(d)
rule)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951, May 4, 1994), E.O. 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 on a government-to-government
basis. In accordance with Secretary's Order 3206 of June 5, 1997
(American Indian Tribal Rights, Federal-Tribal Trust Responsibilities,
and the Endangered Species Act), we readily acknowledge our
responsibilities to work directly with Tribes in developing programs
for healthy ecosystems, to acknowledge that Tribal lands are not
subject to the same controls as Federal public lands, to remain
sensitive to Indian culture, and to make information available to
Tribes. We have determined that no Tribes will be affected by this rule
because there are no Tribal lands or interests within or adjacent to
rough popcornflower habitat.
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>
[[Page 29091]]
and upon request from the Oregon Fish and Wildlife Office (see FOR
FURTHER INFORMATION CONTACT).
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 revising an entry for ``Plagiobothrys hirtus'' in
alphabetical order under FLOWERING PLANTS to read as follows:
Sec. 17.12 Endangered and threatened plants
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Scientific name Common name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
Flowering Plants
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Plagiobothrys hirtus Rough Wherever found.... T 91 FR [INSERT Federal
popcornflower. Register PAGE WHERE
THE DOCUMENT BEGINS],
[5/19/2026; 50 CFR
17.73(k) \4d\.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.73 by adding paragraph (k) to read as follows:
* * * * *
Sec. 17.73 Species-specific rules--flowering plants
* * * * *
(k) Threatened flowering plants--
(l) The prohibitions and exceptions in this paragraph (k) apply to
the following species:
(i) Plagiobothrys hirtus (rough popcornflower)
(ii) Reserved.
(2) Prohibitions. The following prohibitions that apply to
endangered plants also apply to the species identified under paragraph
(k)(l). Except as provided under paragraph (k)(3) of this section, it
is unlawful for any person subject to the jurisdiction of the United
States to commit, to attempt to commit, to solicit another to commit,
or cause to be committed, any of the following acts in regard to this
species:
(i) Import or export, as set forth at Sec. 17.61(b) for endangered
plants.
(ii) Remove and reduce to possession from areas under Federal
jurisdiction, maliciously damage or destroy the species on any such
area; or remove, cut, dig up, or damage or destroy the species 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, as
set forth at Sec. 17.61(c)(1) for endangered plants.
(iii) Interstate or foreign commerce in the course of commercial
activity, as set forth at Sec. 17.61(d) for endangered plants.
(iv) Sale or offer for sale, as set forth at Sec. 17.61(e) for
endangered plants.
(3) Exceptions from prohibitions. In regard to the species
identified in paragraph (k)(1) above, you may:
(i) Conduct activities as authorized by permit under Sec. 17.72.
(ii) Remove and reduce to possession from areas under Federal
jurisdiction, as set forth at Sec. 17.71(b).
(iii) Engage in any act prohibited under paragraph (k)(2) of this
section with seeds of cultivated specimens, provided that a statement
that the seeds are of ``cultivated origin'' accompanies the seeds or
their container.
* * * * *
Brian R. Nesvik,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2026-10045 Filed 5-18-26; 8:45 am]
BILLING CODE 4333-15-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.