Rule2026-11609
Endangered and Threatened Wildlife and Plants; Removal of Northeastern Bulrush From the List of Endangered and Threatened Plants
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 10, 2026
Effective
July 10, 2026
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), are removing the northeastern bulrush (Scirpus ancistrochaetus) from the Federal List of Endangered and Threatened Plants. Our review of the best scientific and commercial data available indicates that the threats to the northeastern bulrush have been eliminated or reduced to the point that the species no longer meets the definition of an endangered or threatened species under the Endangered Species Act of 1973, as amended (Act). Accordingly, the prohibitions and conservation measures provided by the Act, particularly through sections 7 and 9, will no longer apply to the northeastern bulrush.
Full Text
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[Federal Register Volume 91, Number 111 (Wednesday, June 10, 2026)]
[Rules and Regulations]
[Pages 35147-35155]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-11609]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R5-ES-2023-0014; FXES11130900000-267-FF09E22000]
RIN 1018-BD66
Endangered and Threatened Wildlife and Plants; Removal of
Northeastern Bulrush From the List of Endangered and Threatened Plants
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are removing
the northeastern bulrush (Scirpus ancistrochaetus) from the Federal
List of Endangered and Threatened Plants. Our review of the best
scientific and commercial data available indicates that the threats to
the northeastern bulrush have been eliminated or reduced to the point
that the species no longer meets the definition of an endangered or
threatened species under the Endangered Species Act of 1973, as amended
(Act). Accordingly, the prohibitions and conservation measures provided
by the Act, particularly through sections 7 and 9, will no longer apply
to the northeastern bulrush.
DATES: This rule is effective July 10, 2026.
ADDRESSES: 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-
R5-ES-2023-0014.
Availability of supporting materials: This rule and supporting
documents, including the 5-year reviews, Recovery Plan, and the species
status assessment (SSA) report, are available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No. FWS-R5-ES-2023-0014.
FOR FURTHER INFORMATION CONTACT: Audrey Mayer, Field Supervisor, New
England Ecological Services Field Office; telephone 603-223-2541; email
<a href="/cdn-cgi/l/email-protection#610014051304183e0c00180413210716124f060e17"><span class="__cf_email__" data-cfemail="68091d0c1a0d11370509110d1a280e1f1b460f071e">[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:
Previous Federal Actions
Please refer to the proposed rule to delist the northeastern
bulrush published on July 31, 2024 (89 FR 61387) 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 northeastern bulrush (Service 2019a). 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 northeastern bulrush SSA report. As discussed in the
proposed rule, we sent the SSA report
[[Page 35148]]
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> at Docket No.
FWS-R5-ES-2023-0014. 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 61387 at 61388, July 31, 2024).
Summary of Changes From the Proposed Rule
In preparing this final rule, we reviewed and fully considered all
public comments received during the comment period. We have made no
substantive changes from the July 31, 2024, proposed rule (89 FR
61387).
Summary of Comments and Recommendations
In the proposed rule published on July 31, 2024 (89 FR 61387), we
requested that all interested parties submit written comments on the
proposal by September 30, 2024. 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. We published a newspaper notice in USA Today on August
5, 2024, inviting the public to comment. We did not receive any
requests for a public hearing. All substantive information received
during comment period has either been incorporated directly into this
final determination or is addressed below.
Public Comments
Comment 1: Several commenters stated that the biggest concern for
the northeastern bulrush is climate change, which may lead to
increasingly extreme and unpredictable weather patterns, such as
hotter, drier summers and heavier rainfall with more flooding. They
mention that while populations may seem stable now, the sustainability
of northeastern bulrush populations is in question due to the increased
risk of unsuitable habitat conditions resulting from climate change
impacts.
Our response: We evaluated the effects of climate change on the
northeastern bulrush, including higher water levels early in the
growing season followed by hotter summers and a faster drying cycle, in
the discussion of future scenarios in the SSA report (Service 2019a,
pp. 32-39). The Service evaluated the impacts from climate change,
along with impacts to the species from other threats, in determining
that the species is recovered. It is not necessary for all threats to a
species to be removed for a species to be considered as recovered under
the Act. In considering what factors might constitute a threat, we also
look beyond the mere exposure (or potential exposure) of a species to
the factor to determine whether it causes actual impacts to the
species. The mere identification of factors that could impact a species
negatively is not sufficient to compel a finding that maintaining a
currently listed species on the Federal List of Endangered and
Threatened Plants is appropriate; we require evidence that these
factors are operative threats that may act on the species to the point
that the species meets the definition of endangered or threatened under
the Act. We anticipate climate change impacts on bulrush populations to
include fluctuating water levels and light availability; however, in
beaver wetlands we expect beavers to mitigate those impacts by thinning
canopy cover and regulating water levels by damming. In seasonal
wetlands we anticipate some negative effects from climate change on
resiliency of populations, and a slight decline in species
representation and redundancy (including the projected extirpation of
13 populations looking out to 2050). However, in 2050 approximately 135
populations would remain distributed across a large geographical range
in at least three physiographic provinces, two habitat types, and all
currently occupied States. The species therefore does not meet the
definition of an endangered or a threatened species.
Comment 2: Several commenters voiced support for delisting the
northeastern bulrush but indicated that the Service should continue to
monitor populations of the species for several years after delisting to
ensure that they do not decline.
Our response: Section 4(g)(1) of the Act requires us, in
cooperation with the States, to implement a monitoring program for not
less than 5 years for all species that have been recovered. This
monitoring program includes post-delisting monitoring (PDM), which
refers to activities undertaken to verify that a species delisted due
to recovery remains secure from the risk of extinction after the
protections of the Act no longer apply (see Post-Delisting Monitoring,
below). The primary goal of PDM is to monitor the species to ensure
that its status does not deteriorate, and if a decline is detected, to
take measures to halt the decline so that proposing it as endangered or
threatened again is not needed.
Comment 3: One commenter disagreed with our determination to delist
the northeastern bulrush, suggesting that historical populations of
northeastern bulrush in Pennsylvania (PA) are not prolific or healthy,
and are still subjected to threats. They provided unpublished accounts
of the species only being found at a few historical sites visited in
2022 and stated that remaining populations in eastern PA are smaller
and more fragmented than historical surveys predict.
Our response: We appreciate the additional information presented on
the research involving historical sites of northeastern bulrush.
According to the 2008 northeastern bulrush 5-year review (Service 2009,
p. 6), historical occurrences are not counted as extant occurrences
and, thus, we did not consider them in the current or future condition
scenarios in the SSA report (Service 2019a, entire), which helped to
inform the delisting decision. In the SSA report, we assumed that
historical sites were extirpated (i.e., locally extinct) (Service
2019a, p. 26); therefore, the fact that a few plants are still being
found at these sites is encouraging. A summary of the current and
future condition of this species can be found in appendix 2 of the SSA
report.
Comment 4: One commenter stated that delisting the species would
make it more difficult to protect its habitat.
Our response: Threats to the northeastern bulrush have been
eliminated or reduced to the point that the species no longer meets the
definition of an endangered or threatened species under the Act;
therefore, specific habitat protections provided to the species under
the Act are no longer necessary for the species to achieve recovery.
Further, there are several examples of ongoing habitat protection that
are not dependent upon the species' status under the Act. For example,
in PA, where 59.5 percent of populations of northeastern bulrush are
found, the PA Department of Conservation and Natural Resources places a
minimum 200-foot forest management buffer around vernal pools (i.e.,
seasonal wetlands) (Bowen 2025, pers. comm.). Vernal pools are one of
the primary wetland habitat types where northeastern bulrush are found.
Comment 5: One commenter stated that northeastern bulrush should
remain on the endangered species list due to its restricted geographic
range and ongoing vulnerability. They point out that the species
historically had a much broader range and that this range contraction
suggests that the species has faced significant environmental
pressures,
[[Page 35149]]
likely due to habitat loss, climate change, and other anthropogenic
factors.
Our response: Rarity or range restriction alone is not a basis for
determining that a species meets the definitions of either a threatened
or endangered species under the Act. Our analysis of the best
commercial and scientific data available indicates that the populations
of northeastern bulrush are secure. We also determined that despite the
historical decrease in the range of this species, stressors have not
occurred to the extent projected at the time of listing and many more
populations have been discovered, contributing to our evaluation that
the species no longer warrants listing under the Act.
Comment 6: One commenter stated that northern populations of
northeastern bulrush show little genetic diversity, which may hinder
the species' potential for viability and continued growth.
Our response: As mentioned in the SSA, genetic diversity of
northeastern bulrush is limited, especially in the New England region,
which potentially makes it more difficult for the species to adapt to
changing environmental conditions (i.e., reduced representation).
However, the projected loss of a few populations in the New England and
Appalachian regions will have a negligible effect on each region's
adaptive capacity via genetic diversity due to the large numbers of
populations remaining. This lower genetic representation will continue
to be mitigated by large numbers of populations, diversity of habitat
type, and presence in different physiographic regions (Service 2019a,
p. 37).
Background
Species Description
A thorough review of the life history, taxonomy, and ecology of the
northeastern bulrush is presented in the SSA report (Service 2019a,
entire).
The northeastern bulrush is a member of the Cyperaceae (sedge)
family. It is a tall (80 to 120 centimeters), leafy, perennial herb
that produces stems and leaves from short, thick, underground rhizomes.
It is distinguished from other Scirpus species by its drooping,
clustered, fruiting heads; dark, chocolate-brown florets; achene (i.e.,
small, dry, one-seeded fruit) bristles that are barbed to the base; and
broad bracts (Schuyler 1962, pp. 44-46).
Population size may vary from year to year. In some cases, plants
are absent above ground for several years before re-emerging (Service
2019a, p. 10). This is likely due to changes in environmental
conditions, although the exact causal mechanisms are not well
understood. When water levels and/or light availability are not
favorable, the population becomes stressed, dwindles in size, and
sometimes becomes completely absent above ground. When favorable
habitat conditions return, the population may re-emerge.
The northeastern bulrush is a wetland obligate plant occurring in
acidic to almost neutral wetlands including sinkhole ponds, wet
depressions, and vernal pools--collectively, seasonal or ephemeral
wetlands; American beaver (Castor canadensis) flowages; and other
riparian areas found in hilly country (Schuyler 1962, p. 47). Optimal
habitat includes abundant sunlight, high organic matter (Lentz and
Dunson 1999, p. 165), and seasonally and/or annually fluctuating water
levels. Prolonged periods with too much or too little water may be
detrimental.
At the time of listing in 1991, only 13 populations of the
northeastern bulrush scattered across 6 States were known to exist
(Service 1991, entire); however, the species is now known from 148
extant populations in 8 States (Service 2019a, p. 2). The populations
can be loosely organized into a northern region and a southern or
Appalachian region, with a large gap in the distribution in
southeastern New York. The northern region includes extreme eastern New
York and the New England States of Vermont, New Hampshire, and
Massachusetts; and the southern or Appalachian region includes
southwestern New York, Pennsylvania, Maryland, Virginia, and West
Virginia. The vast majority of populations are in Pennsylvania (59.5
percent), Vermont (20.9 percent), and New Hampshire (9.5 percent).
Recovery Criteria
Section 4(f) of the Act directs us to develop and implement
recovery plans for the conservation and survival of endangered and
threatened species unless we determine that such a plan will not
promote the conservation of the species. Under section 4(f)(1)(B)(ii),
recovery plans must, to the maximum extent practicable, include
objective, measurable criteria which, when met, would result in a
determination, in accordance with the provisions of section 4 of the
Act, that the species be removed from the Lists of Endangered and
Threatened Wildlife and Plants.
Recovery plans provide a roadmap for us and our partners on methods
of enhancing conservation and minimizing threats to listed species, as
well as measurable criteria against which to evaluate progress towards
recovery and assess the species' likely future condition. However, they
are not regulatory documents and do not substitute for the
determinations and promulgation of regulations required under section
4(a)(1) of the Act. A decision to revise the status of a species or to
delist a species is ultimately based on an analysis of the best
scientific and commercial data available to determine whether a species
is no longer an endangered species or a threatened species, regardless
of whether that information differs from the recovery plan.
There are many paths to accomplishing recovery of a species, and
recovery may be achieved without all of the criteria in a recovery plan
being fully met. For example, one or more criteria may be exceeded
while other criteria may not yet be accomplished. In that instance, we
may determine that the threats are sufficiently minimized 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.
In the 2019 5-year review (Service 2019b, entire), the Service
recommended delisting the northeastern bulrush, because it no longer
meets the Act's definition of an endangered or a threatened species.
While the recovery plan does not include delisting criteria, our
analysis presented in the SSA report (Service 2019a, entire) shows that
the intent of the recovery plan's downlisting criteria (Service 1993,
p. 37) has been exceeded substantially, supporting our conclusion that
the species is neither endangered nor threatened.
The purpose and intent of the first downlisting criterion calling
for permanent protection of 20 populations was to provide evidence that
a reasonable number of populations were reliably protected from
development, which was identified as a threat to the species'
viability. Currently, 88 (approximately 60 percent) of the 148 known
extant populations occur on public lands, which affords consistent
[[Page 35150]]
and reliable protection through a management structure conducive to
conservation. In addition, although development was identified as an
important threat at the time of listing, that threat appears to have
diminished. Currently, oil and gas development in Pennsylvania is
perhaps the most likely development threat; however, no available
information indicates any populations are under known threat from oil
and gas development. Although other types of activities such as road
construction, forestry, recreation, and plant competition are factors
that may affect the species, data indicate they are not primary factors
influencing the viability of the northeastern bulrush. Also, because
the species occurs in wetland habitats, which are provided some
protections under State and Federal laws, the species is protected from
many sources of impacts from human activities. As a result, the need
for further affirmative protection from these threats on both public
and private lands is less than previously determined at the time the
recovery plan was issued in 1993. Together these factors lead to our
conclusion that the purpose and intent of the first downlisting
criterion of permanent protection for 20 populations has been
substantially exceeded.
The intent of the second downlisting criterion calling for 20
stable or increasing populations was to demonstrate and ensure the
species was not in active decline. This element of the recovery plan
has also been exceeded by a wide margin. There are 148 known extant
populations of the northeastern bulrush in 8 States, an increase of 31
percent from the 113 known extant populations in 7 States at the time
of the 2009 5-year review. Our analysis of these populations in the SSA
report (Service 2019a, p. 27) indicates that 132 (89 percent) of the
148 known extant populations demonstrate excellent, good, and fair
resiliency (indicative of stable or increasing populations), and only
16 (11 percent) of the populations demonstrate poor resiliency or have
been extirpated. We determined that the intent of this criterion has
been substantially exceeded.
The third downlisting criterion calling for increased understanding
of the life-history and ecological requirements of the northeastern
bulrush has been achieved in that we have sufficient information to
support long-term management of populations. Research by State,
Federal, and university partners on the effects of hydrology, shading,
herbivory, genetics, propagation, transplantation, and nutrients on
germination and plant growth has provided better understanding of how
to more effectively protect, monitor, and manage the species.
Therefore, lack of knowledge to support long-term management of
populations no longer contributes a substantial risk to the species.
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. The determination to delist a
species must be based on an analysis of the same five factors.
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 (i.e., direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (i.e., 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 the threats on the
species as a whole. We also consider the cumulative effect of the
threats in light of those actions and conditions that will have
positive effects on the species--such as any existing regulatory
mechanisms or conservation efforts. The Secretary determines whether
the species meets the definition of an ``endangered species'' or a
``threatened species'' only after conducting this cumulative analysis
and describing the expected effect on the species.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis, which is
further described in the 2009 Memorandum Opinion on the foreseeable
future from the Department of the Interior, Office of the Solicitor (M-
37021, January 16, 2009; ``M-Opinion,'' available online at <a href="https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37021.pdf">https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37021.pdf</a>).
The foreseeable future extends as far into the future as the U.S. Fish
and Wildlife Service and National Marine Fisheries Service can make
reasonably reliable predictions about the threats to the species and
the species' responses to those threats. We need not identify the
foreseeable future in terms of a specific period of time. We will
describe the foreseeable future on a case-by-case basis, using the best
available data and taking into account considerations such as the
species' life-history characteristics, threat-projection timeframes,
and environmental variability. In other words, the foreseeable future
is the period of time over which we can make reasonably reliable
predictions. ``Reliable'' does not mean ``certain''; it means
sufficient to
[[Page 35151]]
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 delisted. 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 northeastern bulrush 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 (e.g., wet or dry, warm or cold years);
redundancy is the ability of the species to withstand catastrophic
events (e.g., droughts, large pollution events), and representation is
the ability of the species to adapt to both near-term and long-term
changes in its physical and biological environment (e.g., climate
conditions, pathogen). 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 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-R5-
ES-2023-0014 on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Summary of Biological Status and Threats
In this discussion, we review the biological condition of the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability. In addition, the SSA report
(Service 2019a, 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
The northeastern bulrush is a wetland obligate plant occurring in
acidic to almost neutral wetlands including sinkhole ponds, wet
depressions, vernal pools--collectively, seasonal or ephemeral
wetlands; beaver flowages; and other riparian areas found in hilly
country (Schuyler 1962, p. 47). Optimal habitat includes abundant
sunlight, higher organic matter (Lentz and Dunson 1999, p. 165), and
seasonally and/or annually fluctuating water levels. Prolonged periods
with too much or too little water may be detrimental. The northeastern
bulrush may be found in a wide range of water depths from just a few
centimeters up to a meter in depth, depending on seasonal fluctuations
in water levels (Thompson 1991, p. 5). Plants typically grow in open
areas surrounded by forest. Light availability is known to influence
plant growth, reproduction, and distribution (Boardman 1977, p. 372;
Lentz and Cipollini 1998, p. 126). Shaded plants are often taller, but
at the expense of the roots and other organs (Lentz and Cipollini 1998,
pp. 127, 129), and the species usually is absent from the highly shaded
perimeter of wetlands.
Threats
At the time of listing (see 56 FR 21091; May 7, 1991), the Service
identified habitat disturbance and destruction from development and
other anthropogenic impacts, especially on private land, as important
threats to the northeastern bulrush. Currently, oil and gas development
in Pennsylvania is perhaps the most likely development threat; however,
we are not aware of any information indicating that any northeastern
bulrush populations may be affected by any existing or planned oil and
gas development. Although other types of activities such as road
construction, forestry, and recreation are factors that may affect the
species, to date they have not proven to be significant factors
contributing to the risk of extinction of the northeastern bulrush.
Accordingly, we conclude that the threats of disturbance and
destruction of northeastern bulrush habitat from development are less
than previously thought, and not significant factors impacting the
continued viability of the species.
Native species are known to modify habitat for the northeastern
bulrush and can have meaningful, although mostly temporary, impacts on
populations. American beavers can create flood conditions through
increasing water depth by constructing or adding to a dam and raising
the water level in a wetland occupied by the northeastern bulrush.
Persistent flood conditions can negatively impact the species; however,
beavers also have a long-term positive effect on habitat quality by
harvesting trees and other woody vegetation for food and shelter,
thereby creating open canopy and increasing light availability.
Trampling by white-tailed deer (Odocoileus virginianus) and
trampling and wallowing by American black bears (Ursus americanus) have
been noted in some northeastern bulrush populations, and these
activities can have mixed, sometimes substantial, impacts, especially
where bulrush populations are very small. Trampling and soil compaction
occur as deer and bears move through northeastern bulrush sites. Bears
excavate wallows near the edge of wetlands, and some northeastern
bulrush populations have been impacted by this activity. Wallows can be
big enough to affect entire populations if the populations are very
small; however, wallows also can be beneficial as they help create
areas of open water, which are important during dry periods. These
factors affect a small number of populations, and it appears that the
timing, location, and scale of the trampling and wallows that would
need to align to extirpate a population occur with such infrequency as
to be discountable.
Climate change, especially in the southern portion of its range, is
the primary factor influencing the viability of the northeastern
bulrush. Although the species exists in wetlands that regularly
experience fluctuating water levels, the northeastern bulrush and its
habitat are susceptible to floods and droughts. Based on global,
regional, and local climate models (Service 2019a, chapter 5), we
expect that changes in climate will impact the northeastern bulrush's
habitat by changing the
[[Page 35152]]
amount, timing, and severity of precipitation and drought, and the
number of extreme precipitation events. Higher temperatures, without
increasing summer precipitation, may cause wetlands to desiccate (i.e.,
dry out) earlier, and an extended growing season may allow other
vegetation to encroach upon, compete with, and increase shading of
northeastern bulrush plants. We expect these impacts to be more
noticeable in populations that occur in seasonal wetlands. We expect
beaver activity may at least partially mitigate effects of changing
climate by regulating water levels through damming, maintaining larger
wetlands and open area, removing trees, and reducing shading at the
wetland perimeter. For further discussion of the threats analysis,
please see the SSA report (Service 2019a, chapter 3).
Conservation Efforts and Regulatory Mechanisms
A major increase in survey effort of known occupied and potentially
suitable habitat in every state in the species' range has resulted in a
large increase in the number of known populations and the species'
known occupied range. These surveys were conducted as part of the
broader recovery efforts for the species following its initial listing.
Other conservation efforts include long-term monitoring of known
populations following targeted habitat management activities, pilot
programs involving propagation and transplantation of northeastern
bulrush, and active management to address shrub encroachment and canopy
shading in occupied areas (Service 2019a, p. 24).
The wetland habitats in which the northeastern bulrush occurs are
protected by State statutes and regulations, although these mechanisms
typically include a permitting process that may allow direct impacts to
wetlands contingent upon implementation of mitigation measures. Some
States have additional statutes or regulations or both that protect the
northeastern bulrush or its habitat. For example, Vermont, New York,
and Massachusetts require protection of upland buffers and permits to
work within wetlands. However, State protection of upland areas around
the wetlands is inconsistent, and disturbances such as roads or other
development near wetlands can cause indirect effects such as
sedimentation, altered hydrology, and introduction of invasive species.
The species is designated as State endangered throughout its range,
except in West Virginia, and these State designations are independent
of the species' Federal status. West Virginia does not have a State law
to protect endangered species, and only three northeastern bulrush
populations occur in West Virginia. The States that currently protect
the northeastern bulrush under State law require, at a minimum, project
proponents to coordinate with State resource agencies to develop
minimization measures for projects that may affect the northeastern
bulrush or its habitat. The regulatory protection discussion in the SSA
report (Service 2019a, pp. 17-21) includes a summary of our current
understanding of the laws and regulations regarding wetlands and
buffers in States where the northeastern bulrush occurs.
The 88 northeastern bulrush populations that occur on publicly
owned land--approximately 60 percent of known populations--are provided
long-term protection from risk of development. Publicly owned lands
include State Game Lands, National Wildlife Refuges, National Park
Service units, and lands protected by non-governmental organizations
such as The Nature Conservancy (see Service 2019a, pp. 21-24).
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
When the northeastern bulrush was listed in 1991, only 13
populations were known to exist. The species is now known to exist
within 148 extant populations in 8 States (Service 2019a, p. 2). The
populations can be loosely organized into a northern region and a
southern or Appalachian region, with a large gap in the distribution in
southeastern New York. As described in chapter 4 of the SSA report
(Service 2019a, pp. 25-31), we used element occurrence (E.O.) rank to
assess and describe the current resiliency of northeastern bulrush
populations. E.O. rankings document the status and quality of plant
population occurrences and assess the probability of an occurrence
persisting. We consider the E.O. rank to be the most meaningful way to
describe a population's status, as it requires an in-person observation
and combines multiple components of a population's condition into a
single metric. E.O. ranks are assigned by a surveyor based on
observations beyond just population size, but also habitat conditions
at the site at the time of the survey, conditions over time since its
last observation, and probability of persistence. Our analysis of these
populations (Service 2019a, p. 27) indicates that 132 (89.2 percent) of
the 148 known extant populations demonstrate excellent, good, and fair
resiliency; 13 populations (8.8 percent) demonstrate poor resiliency;
and 3 populations (2 percent) have been extirpated.
Northeastern bulrush populations with excellent and good resiliency
in both seasonal and beaver wetlands tend to have stable populations in
high-quality habitat (i.e., suitable water levels, suitable soil pH,
adequate light), more individuals per population, and lower risk of
disturbance. In the context of resiliency, these populations are more
likely to recover from stochastic disturbance because the habitat is
superior and a stable population can reproduce more often than an
inconsistent population (Service 2019a, p. 28). The 13 populations (8.8
percent of known extant populations) in seasonal wetlands that
currently have poor resiliency are the most vulnerable to the effects
of changing climate and have a high risk of extirpation. Populations in
beaver wetlands are much less vulnerable to the effects of changing
climate and have a low risk of extirpation due to factors such as a
larger average size and water fluctuations being tempered by damming.
Rangewide, most populations (78 percent) occur in seasonal wetlands,
but the distribution is geographically disparate. In the New England
region, 60.4 percent of populations (29 of 48) occur in beaver
wetlands, while in the Appalachian region, 97 percent of populations
(97 of 100) occur in seasonal wetlands (Service 2019a, p. 29).
Future Condition
We modeled a single scenario to assess the potential future
viability of the northeastern bulrush in the context of the factors
influencing species viability and resiliency, representation, and
redundancy. Due to uncertainties with factors such as fluctuating water
levels, climatic stochasticity, light
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availability, and regulatory protection, we used E.O. rank to assess
future resiliency condition, consistent with our current condition
analysis.
We explored plausible changes in the factors considered in an E.O.
ranking, such as population size, biotic factors, abiotic factors, and
landscape context (Hammerson et al. 2008, entire) to anticipate future
changes in E.O. rank at each population. We were unable to explicitly
predict changes in population size; however, we were able to use
existing climate models to qualitatively anticipate effects of changing
climate on biotic and abiotic factors (i.e., habitat type and quality).
We used the same population resiliency scoring model for future
condition that we used for current condition. Accordingly, to describe
plausible future viability, we modeled future resiliency at the
population level and reasonably reliable trends in redundancy and
representation at the rangewide scale (see Service 2019a, pp. 32-39).
We considered the potential consequences of climate change and
carried the scenario into 2050. We consider this time step to be the
foreseeable future because we have information to reasonably and
reliably predict changes in climate within this timeframe. We first
modeled the response of northeastern bulrush habitat to changes in
climate consistent with representative concentration pathway (RCP) 8.5.
The best available information, as summarized in the SSA report,
generally presents this scenario as a plausible, high-emissions
scenario anticipating greater changes in climate than moderate climate
scenarios, such as RCP4.5. Available information also suggests the
probability of scenarios worse than RCP8.5 is low. Therefore, RCP8.5
presents a worst case, but still plausible, scenario for northeastern
bulrush habitat. As our analysis using RCP8.5 resulted in the
northeastern bulrush not meeting the Act's definition of an endangered
or a threatened species, it follows that additional analyses using
RCP4.5 or another moderate-emissions climate model would result in
lower magnitude effects on the species' habitat and, ultimately, the
same listing determination. Therefore, we did not bracket our analysis
with lower emissions climate models.
We generally anticipate, and modeling reflects, that climate change
is likely to impact the species' habitat through higher water levels
early in the growing season followed by hotter summers and a faster
drying cycle. For the northeastern bulrush, this will affect
fluctuating water levels, climatic stochasticity (i.e., random
fluctuations in climate patterns), and light availability, resulting in
neutral effects on beaver wetlands and negative effects on seasonal
wetlands. We expect beavers to mitigate anticipated climate changes at
beaver wetlands by thinning canopy cover and regulating water levels by
damming. In addition, while we are not aware of climate studies
examining specific effects on beavers, beavers occur within and outside
the range of the northeastern bulrush in diverse landscapes, some of
which are hotter and have different precipitation regimes. Accordingly,
we anticipate beavers will remain within the range of the northeastern
bulrush through 2050. Therefore, we expect no reduction in northeastern
bulrush population representation in beaver wetlands before 2050 beyond
that which could occur through normal beaver use and disuse of
wetlands.
Our future scenario anticipated moderate negative effects on
resiliency, a slight decline in representation and redundancy, and
extirpation of 13 populations (2 in the northern region and 11 in the
Appalachian region) from seasonal wetlands. In 2050, approximately 135
populations would remain distributed across a large geographical range
in at least three physiographic provinces, two habitat types, and all
currently occupied States. The species likely would retain low genetic
diversity, especially in the northern region. The species' apparent
limited dispersal capacity will reduce its ability to shift its range
in response to changing climate. However, the species would retain its
redundancy driven by a wide geographic distribution and retain
representation via the use of a variety of environmental settings
(i.e., habitat and physiographic provinces).
Determination of Northeastern Bulrush 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
When we listed the northeastern bulrush in 1991 (56 FR 21091, May
7, 1991), there were only 13 known populations, and the species faced
threats from habitat loss primarily due to land conversion for
development. Since then, the northeastern bulrush has been the subject
of many recovery efforts, including: the discovery of previously
unknown populations (i.e., there are currently 148 known populations
across 8 states); research leading to the understanding of the species'
needs; and identification of management actions that support those
needs. Those efforts, in addition to unmaterialized projected threats
of habitat loss from development, have led to a revised assessment of
the overall risk and status of the species. After evaluating threats to
the species and assessing the cumulative effect of the threats under
the Act's section 4(a)(1) factors, we conclude that the northeastern
bulrush has substantially exceeded all criteria detailed in the
recovery plan (Service 1993, entire) and no longer meets the definition
of either an endangered or a threatened species under the Act.
As stated previously, we identified habitat disturbance and
destruction from development, especially on private lands, as important
threats to the northeastern bulrush at the time of listing. However, we
are not aware of any information indicating that any northeastern
bulrush populations are under threat from oil and gas development, road
construction, forestry, or recreation; therefore, we do not consider
these anthropogenic impacts as a significant threat. Deer browsing and
trampling, as well as trampling and wallowing by black bears, have been
noted in some populations, and these activities may have localized
detrimental effects on a population. However, these factors affect only
a small number of populations, and the likelihood is low that browsing,
trampling, or wallowing would occur in a particular population with
poor resiliency and with sufficient magnitude to affect the entire
population. Accordingly, we conclude that browsing, trampling, and
wallowing either individually or cumulatively are
[[Page 35154]]
not likely to cause the extirpation of a population and, therefore, are
not significant factors contributing to the risk of extinction of the
northeastern bulrush.
Regulatory protections afforded to the northeastern bulrush include
State wetland protections and State endangered species regulations.
These protections apply independently of the species' Federal status
under the Act and, at a minimum, require project proponents to
coordinate with State resource agencies to develop minimization
measures for projects that may affect the northeastern bulrush or its
habitat. A description of the States' regulatory protections can be
found in the SSA report (Service 2019a, pp. 17-21).
To summarize, our greater knowledge regarding the prevalence of
northeastern bulrush populations and the impacts of natural and
artificial systems and disturbances on the species results in the
conclusion that the overall extinction risk for the northeastern
bulrush is much lower than we had previously determined it to be at the
time the species was listed. Considering our modeled worst case future
scenario, it is apparent that the risk of threats manifesting in such a
way as to cause the species to likely become in danger of extinction
within the foreseeable future is very low. Known impacts at the time of
listing, such as habitat loss due to development and inadequate
regulatory protections, that could have resulted in the extirpation of
populations have either been reduced or have not materialized since
listing. Through our assessment of future condition, including the
status of known stressors and probable impacts of climate change, we
anticipate that 88 percent of populations across the range of the
species would maintain high, moderate, or fair resiliency within the
foreseeable future. Thus, after assessing the best available data, we
conclude that the northeastern bulrush is not in danger of extinction
or likely to become so 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. Having determined that the northeastern bulrush is not in
danger of extinction or likely to become so in the foreseeable future
throughout all of its range, we now consider whether it may be in
danger of extinction (i.e., endangered) or likely to become so within
the foreseeable future (i.e., threatened) in a significant portion of
its range--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 or likely to become so in the foreseeable future in that
portion. Depending on the case, it might be more efficient for us to
address the ``significance'' question or the ``status'' question first.
We can choose to address either question first. Regardless of which
question we address first, if we reach a negative answer with respect
to the first question that we address, we do not need to evaluate the
other question for that portion of the species' range.
In undertaking this analysis for northeastern bulrush, we choose to
address the status question first. We began by identifying portions of
the range where the biological status of the species may be different
from its biological status elsewhere in its range. For this purpose, we
considered information pertaining to the geographic distribution of (a)
individuals of the species, (b) the threats that the species faces, and
(c) the resiliency condition of populations.
We evaluated the range of the northeastern bulrush to determine if
the species is in danger of extinction or likely to become so within
the foreseeable future in any portion of its range. The range of a
species can theoretically be divided into portions in an infinite
number of ways. We focused our analysis on portions of the species'
range that may meet the definition of an endangered species or a
threatened species. For northeastern bulrush, 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 or likely to become so
within the foreseeable future in that portion. We examined the
following threats: (1) habitat disturbance and destruction from
development; (2) beaver activity; (3) deer and bear activities, such as
trampling, browsing, and wallowing; and (4) climate change, including
cumulative effects.
As stated previously under Summary of Biological Status and
Threats, when this species was listed, we identified habitat
disturbance and destruction from development and other anthropogenic
impacts as important threats to the northeastern bulrush. However,
since listing, the anticipated threat of habitat loss from development
has not materialized in any portion of the range, and we conclude that
the threats of habitat disturbance and destruction from development do
not rise to a level that threatens the species now or into the future.
Similarly, while we identified threats of beaver activity, trampling,
and wallowing that can cause localized impacts to individual
northeastern bulrush populations, these factors are not occurring at a
significant level in any portion of the species' range.
The effects of climate change differ between the northern and
southern portions of the range of the northeastern bulrush, as most
populations in the southern portion of the range occur in seasonal
wetlands while populations in the northern portion are more evenly
distributed between seasonal wetlands and beaver marshes. Changing
climatic conditions will include more precipitation during winters,
higher temperatures throughout the species' range, and an increased
frequency of extreme precipitation events. We project these conditions
will have more negative effects on seasonal wetlands and neutral
effects on beaver marshes, equating to a slightly elevated risk from
climate change in the southern portion of the range. As described in
the SSA report (Service 2019a, pp. 32-39), climate change under a
worst-case scenario could contribute to extirpation of 13 populations
(2 populations in the northern portion and 11 in the southern portion)
across the species' range. However, our analyses in the SSA report
projected that 135 populations would remain: 46 populations in the
northern portion (96 percent of extant populations) and 89 in the
southern portion (89 percent), providing representation and redundancy
within each portion and across the species' range. Moreover, it is
projected that the southern and northern portions of the range will
each retain strong resiliency, with more than 85 percent of populations
in the southern portion and 93 percent in the northern portion
projected to maintain high, moderate, or fair resiliency.
We found no biologically meaningful portion of the northeastern
bulrush's range where the condition of the species differs from its
condition elsewhere in its range such that the status of the species in
that portion differs from its status in any other portion of the
species' range.
Therefore, we find that the species is not in danger of extinction
or likely to become so within the foreseeable future in any significant
portion of its range. This does not conflict with the courts' holdings
in Desert Survivors v. U.S. Department of the Interior, 321 F. Supp. 3d
1011, 1070-74 (N.D. Cal. 2018) and
[[Page 35155]]
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 on interpretation of the phrase
``significant portion of its range'' in the Endangered Species Act's
definitions of ``endangered species'' and ``threatened species'' (79 FR
37578, July 1, 2014), including the definition of ``significant'' that
those court decisions held to be invalid.
Determination of Status
Based on the best scientific and commercial information available,
we determine that the northeastern bulrush does not meet the definition
of an endangered species or a threatened species in accordance with
sections 3(6) and 3(20) of the Act. In accordance with our regulations
at 50 CFR 424.11(e)(2), the northeastern bulrush has recovered to the
point at which it no longer meets the definition of an endangered
species or a threatened species. Therefore, we are removing the
northeastern bulrush from the Federal List of Endangered and Threatened
Plants.
Effects of This Rule
This rule revises 50 CFR 17.12(h) by removing the northeastern
bulrush from the Federal List of Endangered and Threatened Plants. On
the effective date of this rule (see DATES, above), the prohibitions
and conservation measures provided by the Act, particularly through
sections 7 and 9, will no longer apply to this species. Federal
agencies will no longer be required to consult with the Service under
section 7 of the Act in the event that activities they authorize, fund,
or carry out may affect northeastern bulrush.
There is no critical habitat designated for this species, so there
will be no effect to 50 CFR 17.96.
Post-Delisting Monitoring
Section 4(g)(1) of the Act requires us, in cooperation with the
States, to implement a monitoring program for not less than 5 years for
all species that have been recovered. Post-delisting monitoring (PDM)
refers to activities undertaken to verify that a species delisted due
to recovery remains secure from the risk of extinction after the
protections of the Act no longer apply. The primary goal of PDM is to
monitor the species to ensure that its status does not deteriorate, and
if a decline is detected, to take measures to halt the decline so that
proposing it as endangered or threatened is not again needed. If at any
time during the monitoring period data indicate that protective status
under the Act should be reinstated, we can initiate listing procedures,
including, if appropriate, emergency listing.
We will coordinate with other Federal agencies, State resource
agencies, interested scientific organizations, and others as
appropriate to develop and implement an effective PDM plan for the
northeastern bulrush. The PDM plan will build upon current research and
effective management practices that have improved the status of the
species since listing. Ensuring continued implementation of proven
management strategies that have been developed to sustain the species
will be a fundamental goal for the PDM plan. The PDM plan will identify
measurable management thresholds and responses for detecting and
reacting to significant changes in northeastern bulrush numbers,
distribution, and persistence. If declines are detected equaling or
exceeding these thresholds, the Service, in combination with other PDM
participants, will investigate causes of these declines. The
investigation will be to determine if the northeastern bulrush warrants
expanded monitoring, additional research, additional habitat
protection, or resumption of Federal protection under the Act.
Required Determinations
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951, May 4, 1994), Executive Order 13175
(Consultation and Coordination with Indian Tribal Governments), the
President's memorandum of November 30, 2022 (Uniform Standards for
Tribal Consultation; 87 FR 74479, December 5, 2022), and the Department
of the Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with federally recognized
Tribes and Alaska Native Corporations 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
northeastern bulrush 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> and upon request from
the New England Ecological Services Field 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.
Sec. 17.12 [Amended]
0
2. In Sec. 17.12, amend paragraph (h) by removing the entry for
``Scirpus ancistrochaetus'' under FLOWERING PLANTS from the List of
Endangered and Threatened Plants.
Brian R. Nesvik,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2026-11609 Filed 6-9-26; 8:45 am]
BILLING CODE 4333-15-P
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