[Federal Register Volume 85, Number 189 (Tuesday, September 29, 2020)]
[Proposed Rules]
[Pages 61460-61498]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-19337]



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Vol. 85

Tuesday,

No. 189

September 29, 2020

Part IV





 Department of the Interior





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 Fish and Wildlife Service





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50 CFR Part 17





Endangered and Threatened Wildlife and Plants; Threatened Species 
Status for the Wright's Marsh Thistle (Cirsium wrightii) With a 4(d) 
Rule and Designation of Critical Habitat; Proposed Rule

  Federal Register / Vol. 85 , No. 189 / Tuesday, September 29, 2020 / 
Proposed Rules  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2018-0071; FF09E21000 FXES11110900000 201]
RIN 1018-BC34


Endangered and Threatened Wildlife and Plants; Threatened Species 
Status for the Wright's Marsh Thistle (Cirsium wrightii) With a 4(d) 
Rule and Designation of Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
list the Wright's marsh thistle (Cirsium wrightii), a plant species 
from New Mexico, as a threatened species and designate critical habitat 
under the Endangered Species Act of 1973, as amended (Act). After a 
review of the best available scientific and commercial information, we 
find that listing the species is warranted. Accordingly, we propose to 
list the Wright's marsh thistle as a threatened species with a rule 
issued under section 4(d) of the Act (``4(d) rule''). If we finalize 
this rule as proposed, it would add this species to the List of 
Endangered and Threatened Plants and extend the Act's protections to 
the species. We also propose to designate critical habitat for Wright's 
marsh thistle under the Act. The proposed critical habitat totals 
approximately 64.3 hectares (ha) (159 acres (ac)) in Chaves, Eddy, 
Guadalupe, Otero, and Socorro Counties, New Mexico. We also announce 
the availability of a draft economic analysis of the proposed 
designation of critical habitat for Wright's marsh thistle.

DATES: We will accept comments received or postmarked on or before 
November 30, 2020. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 
p.m. Eastern Time on the closing date. We must receive requests for 
public hearings, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by November 13, 2020.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R2-ES-2018-0071, 
which is the docket number for this rulemaking. Then, click on the 
Search button. On the resulting page, in the Search panel on the left 
side of the screen, under the Document Type heading, click on the 
Proposed Rule box to locate this document. You may submit a comment by 
clicking on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-R2-ES-2018-0071; U.S. Fish and Wildlife Service, 
MS: JAO/1N, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested, below, for more information).
    Availability of supporting materials: For the critical habitat 
designation, the coordinates or plot points or both from which the maps 
are generated are included in the administrative record and are 
available at the New Mexico Ecological Services website https://www.fws.gov/southwest/es/NewMexico/index.cfm and at http://www.regulations.gov under Docket No. FWS-R2-ES-2018-0071. Any 
additional tools or supporting information that we may develop for the 
critical habitat designation will also be available at the Service 
website set out above, and may also be included in the preamble and/or 
at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Shawn Sartorius, Field Supervisor, New 
Mexico Ecological Services Field Office, 2105 Osuna Rd. NE, 
Albuquerque, NM 87113; telephone 505-346-2525; facsimile 505-346-2542. 
Persons who use a telecommunications device for the deaf (TDD) may call 
the Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act, if a species is 
determined to be an endangered or threatened species throughout all or 
a significant portion of its range, we are required to promptly publish 
a proposal in the Federal Register and make a determination on our 
proposal within 1 year. Critical habitat shall be designated, to the 
maximum extent prudent and determinable, for any species determined to 
be an endangered or threatened species under the Act. Listing a species 
as an endangered or threatened species and designations and revisions 
of critical habitat can only be completed by issuing a rule.
    What this document does.
     Proposes to list Wright's marsh thistle as a threatened 
species. Wright's marsh thistle is a candidate species for which we 
have on file sufficient information on biological vulnerability and 
threats to support preparation of a listing proposal, but for which 
development of a listing rule has been precluded by other higher 
priority listing activities. This proposed rule reassesses all 
available information regarding the status of and threats to this 
species.
     Proposes a rule issued under section 4(d) of the Act 
(``4(d) rule'') that would make it unlawful to remove and reduce to 
possession the species from areas under Federal jurisdiction; 
maliciously damage or destroy the species on areas under Federal 
jurisdiction; 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. Nothing in the proposed 4(d) rule affects in any way other 
provisions of the Act, such as the designation of critical habitat 
under section 4, the recovery planning provisions of section 4(f), and 
the consultation requirements under section 7.
     Proposes to designate critical habitat for the species on 
approximately 64.3 ha (159 ac) in Chaves, Eddy, Guadalupe, Otero, and 
Socorro Counties, New Mexico.
    The basis for our action. Under the Act, we can determine that a 
species is an endangered or threatened species based on any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. We have determined that stressors related to 
Factors A and E are causing Wright's marsh thistle to be threatened.
    Section 4(a)(3) of the Act requires the Secretary of the Interior 
(Secretary) to designate critical habitat concurrent with listing to 
the maximum extent prudent and determinable. Section 4(b)(2) of the Act 
states that the Secretary must make the designation on the basis of the 
best scientific data available and after taking into consideration the 
economic impact, the impact on national security, and any other 
relevant impacts of specifying any particular area as critical habitat. 
Section 3(5)(A) of the Act defines critical habitat as (i) the specific 
areas

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within the geographical area occupied by the species, at the time it is 
listed, on which are found those physical or biological features (I) 
essential to the conservation of the species and (II) which may require 
special management considerations or protections; and (ii) specific 
areas outside the geographical area occupied by the species at the time 
it is listed, upon a determination by the Secretary that such areas are 
essential for the conservation of the species.
    Peer review. In accordance with our joint policy on peer review 
published in the Federal Register on July 1, 1994 (59 FR 34270), and 
our August 22, 2016, memorandum updating and clarifying the role of 
peer review of listing actions under the Act, we sought the expert 
opinions of three appropriate and independent specialists during the 
analysis of the status of the species and the creation of the SSA 
report (USFWS 2017). The purpose of peer review was to ensure that our 
listing determination and critical habitat designation are based on 
scientifically sound data, assumptions, and analyses. The peer 
reviewers have expertise in Wright's marsh thistle's biology, life 
history, habitat, and range, and in the physical or biological features 
of its habitat. One of three peer reviewers provided comments on the 
species status assessment, which were integrated into the SSA report; 
these comments will be available along with other public comments in 
the docket for this proposed rule (see http://www.regulations.gov, 
Docket No. FWS-R2-ES-2018-0071).
    Because we will consider all comments and information we receive 
during the comment period on this proposed rule, our final 
determinations may differ from this proposal. Based on the new 
information we receive (and any comments on that new information), we 
may conclude that the species is endangered instead of threatened, or 
we may conclude that the species does not warrant listing as either an 
endangered species or a threatened species. Such final decisions would 
be a logical outgrowth of this proposal, as long as we: (1) Base the 
decisions on the best scientific and commercial data available after 
considering all of the relevant factors; (2) do not rely on factors 
Congress has not intended us to consider; and (3) articulate a rational 
connection between the facts found and the conclusions made, including 
why we changed our conclusion.

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other concerned governmental agencies, 
Native American tribes, the scientific community, industry, or any 
other interested parties concerning this proposed rule. We particularly 
seek comments concerning:
    (1) Wright's marsh thistle's biology, range, and population trends, 
including:
    (a) Biological or ecological requirements of the species, including 
habitat requirements for all life cycle stages, seed production and 
dispersal, and seed germination and growth;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the species, its 
habitat, or both.
    (2) Factors that may affect the continued existence of the species, 
which may include habitat modification or destruction, overutilization, 
disease, predation, the inadequacy of existing regulatory mechanisms, 
or other natural or manmade factors.
    (3) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this species and existing regulations 
that may be addressing those threats.
    (4) Additional information concerning the historical and current 
status, range, distribution, and population size of this species, 
including the locations of any additional populations of this species.
    (5) Information on regulations that are necessary and advisable to 
provide for the conservation of the Wright's marsh thistle and that the 
Service can consider in developing a 4(d) rule for the species. In 
particular, information concerning the extent to which we should 
include any of the section 9 prohibitions in the 4(d) rule or whether 
any other forms of take should be excepted from the prohibitions in the 
4(d) rule.
    (6) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including information to inform the following factors such that 
a designation of critical habitat may be determined to be not prudent:
    (a) The species is threatened by taking or other human activity and 
identification of critical habitat can be expected to increase the 
degree of such threat to the species;
    (b) The present or threatened destruction, modification, or 
curtailment of a species' habitat or range is not a threat to the 
species, or threats to the species' habitat stem solely from causes 
that cannot be addressed through management actions resulting from 
consultations under section 7(a)(2) of the Act;
    (c) Areas within the jurisdiction of the United States provide no 
more than negligible conservation value, if any, for a species 
occurring primarily outside the jurisdiction of the United States;
    (d) No areas meet the definition of critical habitat.
    (7) Specific information on:
    (a) The amount and distribution of Wright's marsh thistle habitat;
    (b) What areas, that were occupied at the time of listing and that 
contain the physical or biological features essential to the 
conservation of the species, should be included in the critical habitat 
designation and why;
    (c) Special management considerations or protections that may be 
needed in the critical habitat areas we are proposing, including 
managing for the potential effects of climate change; and
    (d) What areas not occupied at the time of listing that are 
essential for the conservation of the species. We particularly seek 
comments:
    (i) Regarding whether occupied areas are inadequate for the 
conservation of the species; and,
    (ii) Providing specific information that supports the determination 
that unoccupied areas will, with reasonable certainty, contribute to 
the conservation of the species and, contain at least one physical or 
biological feature essential to the conservation of the species.
    (8) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (9) Any probable economic, national security, or other relevant 
impacts of designating any area as critical habitat that may be 
included in the final designation, and the related benefits of 
including or excluding areas.
    (10) Information on the extent to which the description of probable 
economic impacts in the draft economic analysis is a reasonable 
estimate of the likely economic impacts.
    (11) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act.
    (12) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for

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greater public participation and understanding, or to better 
accommodate public concerns and comments.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Please note that submissions merely stating support for, or 
opposition to, the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act directs that 
determinations as to whether any species is an endangered or a 
threatened species must be made ``solely on the basis of the best 
scientific and commercial data available.''
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via http://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov.

Public Hearing

    Section 4(b)(5) of the Act provides for a public hearing on this 
proposal, if requested. Requests must be received by the date specified 
in DATES. Such requests must be sent to the address shown in FOR 
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this 
proposal, if requested, and announce the date, time, and place of the 
hearing, as well as how to obtain reasonable accommodations, in the 
Federal Register and local newspapers at least 15 days before the 
hearing. For the immediate future, we will provide these public 
hearings using webinars that will be announced on the Service's 
website, in addition to the Federal Register. The use of these virtual 
public hearings is consistent with our regulation at 50 CFR 
424.16(c)(3).

Previous Federal Actions

    On October 15, 2008, we received a petition from WildEarth 
Guardians requesting that we list Wright's marsh thistle as an 
endangered or threatened species under the Act. Additionally, the 
petitioner requested that critical habitat be designated concurrent 
with the listing of Wright's marsh thistle (thistle). On September 10, 
2009, we published a 90-day finding in the Federal Register (74 FR 
46542) that the petition presented substantial information that listing 
Wright's marsh thistle may be warranted. The 90-day finding stated that 
the petition provided substantial information indicating that listing 
Wright's marsh thistle may be warranted. At that time, we initiated a 
status review of the species.
    On February 11, 2010, WildEarth Guardians filed suit against the 
Service for failure to issue a 12-month finding on the petition 
(WildEarth Guardians v. Salazar, No. 10-cv-00122 BRB-DJS (D.N.M.)). 
Under a stipulated settlement agreement, the 12-month finding was due 
to the Federal Register by October 31, 2010. On November 4, 2010, after 
review of all available scientific and commercial information, we 
published a 12-month petition finding (75 FR 67925), in which we found 
that listing Wright's marsh thistle as endangered or threatened 
throughout its range is warranted, but that listing of the thistle was 
precluded by higher priority actions to amend the Lists of Endangered 
and Threatened Wildlife and Plants. As a result of the 12-month 
finding, we added Wright's marsh thistle to our candidate species list, 
with a listing priority number of 8, indicating that the thistle faced 
imminent threats that were of moderate magnitude. Thereafter, we 
reassessed the status of the species annually and determined that 
listing the thistle remained warranted but was precluded by higher 
priority activities under the Act (see 77 FR 69994, November 21, 2012; 
78 FR 70104, November 22, 2013; 79 FR 72450, December 5, 2014; 80 FR 
80584, December 24, 2015; 81 FR 87246, December 2, 2016).

Supporting Documents

    A species status assessment (SSA) team prepared an SSA report for 
the Wright's marsh thistle. 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. The Service sent the SSA report to 3 independent 
peer reviewers and received 1 response.

I. Proposed Listing Determination

Background

Species Description

    Wright's marsh thistle (Gray 1853, p. 101), a member of the 
Asteraceae (sunflower) family, produces a 0.9- to 2.4-meter (m) (3- to 
8-foot (ft)) single stalk covered with succulent leaves. There are two 
regional varieties of this species. The more eastern populations in the 
Pecos River valley of New Mexico have pink flowers and dark green 
foliage with higher plant height, while the more western and southern 
populations in New Mexico (and the previous populations in Arizona and 
Mexico) have white or pale pink flowers and pale green foliage 
(Sivinski 2011, pp. 27-28). The differences serve as evidence of 
ecological adaptability within the species, and we believe these 
differences represent genetic diversity between the eastern and western 
populations.

Life History

    Depending on local environmental conditions, Wright's marsh thistle 
can display life-history traits of a biennial (a plant completing 
development in 2 years, flowering in its second year) or a weak 
monocarpic perennial (a plant that flowers, sets seed, and then dies). 
Cross pollination is achieved by insect pollinators, primarily bees. 
Like other species in the genus Cirsium, Wright's marsh thistle 
produces numerous seeds per flowering plant. After germination, 
seedlings develop into an intermediate rosette form for most of a year 
or longer before bolting (producing a stem) and growing into the 
mature, flowering plant. It does not reproduce vegetatively (asexually 
from parent plant). In order to progress through its life cycle, the 
thistle requires adequate soil alkalinity, water availability for 
permanent root saturation, and access to full sunlight. Specifically, 
seeds require water-saturated soils and access to fairly direct 
sunlight for germination. Rosettes also require water-saturated soils 
and access to fairly direct sunlight in order to grow into a mature 
plant. Mature plants must also maintain permanent root saturation via 
water-saturated soils and tend to thrive better in full sunlight. For 
more details of the biology and life history of Wright's marsh thistle, 
please refer to chapter 2 of the SSA report (USFWS 2017).

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Habitat and Distribution

    Wright's marsh thistle is a rare wetland species that grows in 
marshy habitats with year-round, water-saturated soils, at elevations 
between 1,150 and 2,390 m (3,450 and 7,850 ft) in elevation (Sivinski 
1996, p. 1; 2005, pp. 3-4). Wright's marsh thistle is an obligate of 
seeps, springs, and wetlands that have saturated soils with surface or 
subsurface water flow (Sivinski 1996, p. 1; USFWS 1998, p. 2; 
Worthington 2002, p. 2; NMRPTC 2009, p. 1). Within those spring and 
seep areas, it is usually associated with alkaline soils (Sivinski 
2005, p. 3).

Historical Range

    Wright's marsh thistle was historically known to occur in Arizona 
and New Mexico in the United States, and Chihuahua and Sonora in Mexico 
(Sivinski 2012, p. 2). The single location in Arizona was a historical 
1851 collection from San Bernardino Cienega, which straddles the 
international border with Mexico, and no longer has suitable wetland 
habitat on the Arizona side of the border (Baker 2011, p. 7). There 
were 10 historical occurrences in New Mexico; however, in a recent 
search effort at one of the sites (Lake County), the thistle was not 
found (Sivinski 2011, p. 40), and another of the 10 records 
(Rattlesnake Springs, Eddy County) is now thought to be a hybrid 
between Wright's marsh thistle and the Texas thistle (C. texanum) 
(NMRPTC 2009, p. 2). Reports of Wright's marsh thistle from Texas were 
common (Keil 2006, p. 131; Sivinski 1996, pp. 2-4), but in subsequent 
examinations of Texas specimens purporting to be Wright's marsh 
thistle, the specimens were found to be Texas thistle or other Cirsium 
species (75 FR 67928; November 4, 2010).
    The status of the Wright's marsh thistle in Mexico is presumed 
extirpated. There have been few verified historical collections, and 
the most recent site visit to Fronteras, Mexico, and Cerro Angostura, 
Mexico, indicated that the habitat had been mostly dried out and is no 
longer suitable (Sivinski 2017, entire).
    Therefore, Wright's marsh thistle has been extirpated from all 
previously known locations in Arizona, two historical locations in New 
Mexico, and all known locations in Mexico, and it was misidentified and 
likely not ever present in Texas.

Current Range

    In New Mexico, eight general confirmed locations of Wright's marsh 
thistle cover an area of approximately 43 ha (106 ac): Santa Rosa, in 
Guadalupe County; Bitter Lake National Wildlife Refuge (NWR), in Chaves 
County; Blue Spring, in Eddy County; La Luz Canyon, Karr/Haynes Canyon, 
Silver Springs, and Tularosa Creek, in Otero County; and Alamosa Creek, 
in Socorro County (Bridge 2001, p. 1; Sivinski and Bleakly 2004, p. 2; 
NMRPTC 2009, p. 1; Sivinski 1994, p. 1; Sivinski 1996, p. 2; Sivinski 
2005, p. 1, 3-5; Sivinski 2009; USFWS 1998, p. 1; Worthington 2002, p. 
1-3). In Otero County, the Sacramento Mountains have four unique 
populations of the species clustered within about 16 kilometers (km) 
(10 miles (mi)) of each other on the west slope of the mountains. The 
remaining four localities are widely disjunct, separated from the 
Sacramento localities by about 120 to 225 km (75 to 140 mi) and from 
each other by about 120 to 345 km (75 to 215 mi). In the Sacramento 
Mountains, two of these four localities occur on the Lincoln National 
Forest, one locality is on private land, and the remaining locality is 
on the Mescalero Apache Reservation. In the Pecos River Valley, one 
locality is on public lands on Bitter Lake NWR; one is on private land 
near Blue Springs and the Black River; and one is in the vicinity of 
Santa Rosa on private, municipal, and State lands. The remaining 
locality is on private land on Alamosa Creek, Socorro County. 
Localities vary in relative population size from fewer than 20 
individuals covering only about 0.02 ha (0.03 ac) at the Silver Springs 
locality (Sivinski 2012, p. 21), to several thousand individuals on 
Bitter Lake NWR, covering almost 9.3 ha (23 ac).

Regulatory and Analytical Framework

Regulatory Framework

    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 is an ``endangered species'' or a ``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 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 expected response by the species, 
and the effects of the threats--in light of those actions and 
conditions that will ameliorate the threats--on an individual, 
population, and species level. We evaluate each threat and its expected 
effects on the species, then analyze the cumulative effect of all of 
the threats on the species as a whole. We also consider the cumulative 
effect of the threats in light of those actions and conditions that 
will have positive effects on the species, such as any existing 
regulatory mechanisms or conservation efforts. The Secretary determines 
whether the species meets the definition of an ``endangered species'' 
or a ``threatened species'' only after conducting this cumulative 
analysis and describing the expected effect on the species now and in 
the foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable

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future on a case-by-case basis. The term ``foreseeable future'' extends 
only so far into the future as the Services can reasonably determine 
that both the future threats and the species' responses to those 
threats are likely. In other words, the foreseeable future is the 
period of time in which we can make reliable predictions. ``Reliable'' 
does not mean ``certain''; it means sufficient to provide a reasonable 
degree of confidence in the prediction. Thus, a prediction is reliable 
if it is reasonable to depend on it when making decisions.
    It is not always possible or necessary to define foreseeable future 
as a particular number of years. Analysis of the foreseeable future 
uses the best scientific and commercial data available and should 
consider the timeframes applicable to the relevant threats and to the 
species' likely responses to those threats in view of its life-history 
characteristics. Data that are typically relevant to assessing the 
species' biological response include species-specific factors such as 
lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.

Analytical Framework

    The SSA report for Wright's marsh thistle (USFWS 2017) documents 
the results of our comprehensive biological status review for the 
species, including an assessment of the potential threats to the 
species. The SSA report does not represent a decision by the Service on 
whether the species should be proposed for listing as an endangered or 
threatened species under the Act. It does, however, provide the 
scientific basis that informs our regulatory decisions, which involves 
the further application of standards within the Act and its 
implementing regulations and policies.
    To assess Wright's marsh thistle viability, we used the three 
conservation biology principles of resiliency, redundancy, and 
representation (Shaffer and Stein 2000, pp. 306-310). Briefly, 
resiliency supports the ability of the species to withstand 
environmental and demographic stochasticity (for example, wet or dry, 
warm or cold years), redundancy supports the ability of the species to 
withstand catastrophic events (for example, droughts, large pollution 
events), and representation supports the ability of the species to 
adapt over time to long-term changes in the environment (for example, 
climate changes). In general, the more resilient and redundant a 
species is and the more representation it has, the more likely it is to 
sustain populations over time, even under changing environmental 
conditions. Using these principles, we identified the species' 
ecological requirements for survival and reproduction at the 
individual, population, and species levels, and described the 
beneficial and risk factors influencing the species' viability.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical 
and current condition of the species' demographics and habitat 
characteristics, including an explanation of how the species arrived at 
its current condition. The final stage of the SSA involved making 
predictions about the species' responses to positive and negative 
environmental and anthropogenic influences. This process used the best 
available information to characterize viability as the ability of a 
species to sustain populations in the wild over time. We use this 
information to inform our regulatory decision.

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.
    To determine the species' current condition, we ranked each 
population based on six factors relating to population and habitat 
variables including habitat quantity, number of patches, abundance, 
reproduction, permanent root saturation, and full sun. For each of 
these six factors, we defined criteria for low, moderate, and high 
conditions, which are outlined in table 3.3 in chapter 3 of the SSA 
report. These criteria were used to determine an overall condition for 
each of the eight extant populations (USFWS 2017). The overall 
condition of a population refers to the likelihood of persistence over 
time. We expect a population in high overall condition to have a 
greater than 90 percent likelihood of persistence over the foreseeable 
future (in other words a 10 percent or less likelihood of extirpation). 
For a population in moderate condition, we estimate that the likelihood 
of persistence over the foreseeable future would be approximately 66 to 
90 percent (10 to 33 percent likelihood of extirpation). For a 
population in low condition, we estimated a likelihood of persistence 
of approximately 25 to 66 percent over the foreseeable future (33 to 75 
percent likelihood of extirpation) and a population in very low 
condition to have a likelihood of persistence of approximately 0 to 25 
percent over the foreseeable future (75 to 100 percent likelihood of 
extirpation).
    For Wright's marsh thistle to maintain viability, its populations 
or some portion thereof must be able to withstand stochastic 
disturbance. Resource needs that influence the resiliency of 
populations include constant soil saturation, alkaline soils, abundance 
of insect pollinators, and availability of direct sunlight. 
Additionally, secondary resource needs include agents of seed dispersal 
(wind, water, mammals, and birds), and water availability for seed 
germination. For more details on these resource needs and their impact 
on species viability, refer to chapter 2 of the SSA report (USFWS 
2017). Factors that influence those resource needs will determine 
whether Wright's marsh thistle populations are able to sustain adequate 
numbers within habitat patches of adequate area and quality to maintain 
survival and reproduction in spite of disturbance, thereby increasing 
the resiliency of populations.
    Maintaining representation in the form of genetic or environmental 
diversity is important to maintain Wright's marsh thistle's capacity to 
adapt to future environmental changes. A healthy community of insect 
pollinators, particularly bees and butterflies, leads to genetic 
diversity by the process of cross pollination between patches within a 
population. The differences in flower color (and perhaps differences in 
mature plant maximum growth height) represent differences in ecological 
adaptability between the eastern and western populations of the 
thistle, which may also represent a form of genetic diversity. There is 
a need to maintain the genetic and environmental diversity between the 
eastern and western groups, as their potential genetic and life-history 
attributes may buffer the thistle's response to environmental changes 
over time. Wright's marsh thistle has likely lost genetic and 
environmental diversity as populations have been reduced or extirpated. 
As such, maintaining the remaining representation in the form of 
genetic and environmental diversity may be important to the capacity of 
Wright's marsh thistle to adapt to future environmental change.
    Wright's marsh thistle needs to have multiple resilient populations 
distributed throughout its range to provide for redundancy. The more 
populations, and the wider the distribution of those populations, the 
more redundancy the species will exhibit. In addition, populations of 
the

[[Page 61465]]

species can exhibit internal redundancy through the presence of 
multiple patches within the population. For example, the eastern 
populations of Wright's marsh thistle have multiple patches of occupied 
habitat within each population location, while the western populations 
typically have only one patch. The presence of multiple patches 
contributes to the ability of the population to maintain resiliency 
when faced with various risk factors. Redundancy reduces the risk that 
a large portion of the species' range will be negatively affected by a 
catastrophic natural or anthropogenic event at a given point in time. 
Species that are well-distributed across their historical range are 
considered less susceptible to extinction and have higher viability 
than species confined to a small portion of their range (Carroll et al. 
2010, entire; Redford et al. 2011, entire).

Current Condition of Wright's Marsh Thistle

    As stated above, the best available information indicates that 
Wright's marsh thistle is currently only found in eight localities in 
New Mexico. We believe the plant has been extirpated in Arizona, 
Mexico, and two locations in New Mexico, and never occurred in Texas. 
According to our current condition rankings outlined in chapter 3 of 
the SSA report, of the eight extant populations in New Mexico, three 
have been determined to have moderate resiliency, two have low 
resiliency, and three have very low resiliency and are at risk of 
extirpation. We consider the thistle to have representation in the form 
of genetic and environmental diversity resulting in two distinct 
phenotypes in the eastern and western populations, as described above. 
Within the two representation areas (east and west), three populations 
are extant in the east, and five populations are extant in the west. 
While there is greater redundancy in terms of number of populations in 
the western phenotype, the five extant populations in the western 
representation are much smaller in both the area occupied and 
population size. Therefore, the western populations are less resilient. 
This circumstance impacts the overall viability of the species by 
reducing the overall resiliency of the thistle to stochastic events.
Influence Factors for Wright's Marsh Thistle
    The largest threats to the future viability of Wright's marsh 
thistle relate to habitat degradation from various stressors 
influencing the availability of the thistle's resource needs (e.g., 
water availability). A brief summary of these primary stressors is 
presented below, followed by a table identifying the particular 
stressors, and the magnitude of those stressors, affecting each of the 
eight populations (Table 1). We also include a discussion of current 
conservation measures for the thistle and any existing regulatory 
mechanisms that may ameliorate or reduce the impact of the stressors. 
For a full description of these stressors, refer to chapter 4 of the 
SSA report (USFWS 2017).
Decreased Water Availability
    The drying of Wright's marsh thistle habitat over approximately the 
last 25 years has led to shrinking population boundaries, a reduction 
in the numbers of plants, and, in some cases, a loss of all individuals 
at several localities (Sivinski 1996; Sivinski 2005, pp. 3-4; Sivinski 
2012). Because the thistle occurs only in areas that are water-
saturated, populations have a high potential for extirpation when the 
habitat dries up. Loss of water from Wright's marsh thistle habitat 
occurs through changing precipitation patterns or drought, or as a 
result of human impacts from groundwater pumping (withdrawal) or 
diversion of surface water, which can lead to the degradation and 
extirpation of the species' habitat (Sivinski 1996, p. 5; Sivinski 
2005, p. 1; USFS 2008, p. 19). In addition to experiencing periods of 
drought, much of the habitat of Wright's marsh thistle has been and 
continues to be severely altered and degraded because of past and 
present land and water management practices that have led to ground and 
surface water depletion. For specific examples for each population, 
please refer to chapter 4, section 1 of the SSA report (USFWS 2017). 
All of the extant localities may be affected by long-term drought, 
whereas four of the largest localities at Blue Spring, Bitter Lake NWR, 
Santa Rosa, and Alamosa Creek have the potential to be further modified 
by ongoing and future water management practices. Drought, along with 
ground and surface water depletion, serve to decrease the amount of 
water available in Wright's marsh thistle habitat, which impacts the 
species' need for permanent root saturation. Reductions in 
precipitation and temperature are predicted, which suggests that these 
impacts will increase in the future, leading to further impacts to the 
thistle (NOAA 2017).
Decreased Water Availability: Drought
    According to the United States Drought Monitor (2017), large 
portions (over 30 percent) of New Mexico, including Wright's marsh 
thistle habitat, experienced drought from approximately April 2011 
until mid-2014. Within New Mexico, monsoonal summer precipitation can 
be very patchy, with some areas receiving considerably less rainfall 
than others. Newton et al. (2012) provides information on drought 
conditions in the range of the species, specifically in the Pecos River 
valley and Sacramento Mountains. The three eastern populations of 
Wright's marsh thistle in the Pecos River valley have not been affected 
by drought to the same extent as the western populations, because the 
Pecos River valley's marshy habitats are maintained by large regional 
aquifers. The western populations often rely on wet periods during 
summer months to recharge the ground water. In the Sacramento 
Mountains, because these wet periods are extremely rare events (Newton 
et al. 2012, p. 66), drought has notably impacted the area's 
groundwater tables (USFS 2008, p. 22). For this reason, the seasonal 
distribution of yearly precipitation can result in temporary drought 
conditions and reduced water availability for some Wright's marsh 
thistle localities within this mountain range.
    Wright's marsh thistle is vulnerable to reduced water availability 
because the species occupies relatively small areas of spring or seep 
habitat in an arid region that is plagued by drought and ongoing 
aquifer withdrawals (e.g., in the Roswell Basin). If future episodes of 
drought increase in frequency, duration, or intensity, additional 
dewatering and decrease of the thistle's habitat are likely to occur. 
Projected increases in temperature and increased variability in 
precipitation in locations where Wright's marsh thistle is currently 
located demonstrate the vulnerability of the habitat to reductions in 
water availability. The vulnerability of the habitat to increased 
drought depends, in large part, on the sources of their water supply. 
Habitats that are sustained mainly by precipitation in the Sacramento 
Mountains (five populations) are the most likely to be affected by 
increased drought, making drought a significant stressor to these 
populations. Alternatively, localities that are supplied primarily by 
groundwater in the Pecos River Basin (three populations) will likely 
have the greatest resistance to increased drought due to water stored 
in aquifers, making drought a slightly less significant stressor to the 
populations (e.g., see Poff et al. 2002, pp. 18-19).

[[Page 61466]]

Decreased Water Availability: Ground and Surface Water Depletion
    Wright's marsh thistle is a wetland plant that can be extirpated 
when its habitat dries out. The effects of ongoing and past maintenance 
and operation of existing water diversions can also limit the size of 
thistle populations (USACE 2007, p. 29). Sivinski (1994, pp. 1-2; 1996, 
p. 4; 2005, p. 1; 2006, p. 4) reported loss and degradation of habitat 
from water diversion or draining of wetlands that historically 
supported Wright's marsh thistle in Chaves, Otero, and Sierra Counties, 
New Mexico. The extent of ongoing and future water diversions is 
related to the extent of urban and agricultural development within a 
given area. Thus, the significance of the impacts of this stressor to 
each population can be correlated to the number of water diversions 
within the area for both urban and agricultural purposes. Specific 
details on impacts to each population can be found in chapter 4 of the 
SSA report (USFWS 2017). The alteration and loss of habitat that 
currently supports Wright's marsh thistle, due to groundwater and 
surface water depletion, will continue and likely increase in the 
foreseeable future. This projection is based on current and future 
development plans in areas surrounding each population; specific 
details are located in chapter 4 of the SSA report (USFWS 2017).
Decreased Water Availability: Effects of Climate Change
    Because Wright's marsh thistle occupies relatively small areas of 
spring or seep habitat in an arid region plagued by drought and ongoing 
aquifer withdrawals (e.g., in the Roswell Basin), it is expected to be 
vulnerable to changes in climate that decrease the availability of 
water to suitable habitat. Springs and wet valleys have been affected 
by drought in at least three canyons of the Sacramento Mountains, New 
Mexico, resulting in reduced population sizes. Similar water loss may 
occur within other Wright's marsh thistle localities (USFWS 2017). If 
changes in climate lead to future drought, additional dewatering and 
reduction of habitat for the thistle may occur.
    Downscaled projections as of 2018 were available for our analysis 
of Wright's marsh thistle from the Climate Explorer program in the U.S. 
Climate Resilience Toolkit (NOAA 2017). The Climate Explorer is based 
on 32 models and produces a mean which can be used to predict changes 
in air temperature and precipitation for counties, cities or specific 
zip codes in the contiguous United States and portions of Canada and 
Mexico. Scenario RCP 4.5 is a moderate emissions scenario for 
atmospheric concentrations of greenhouse gases. Based on climate change 
projections for emissions at RCP 4.5, all locations where Wright's 
marsh thistle is currently located show increases in mean daily maximum 
temperature over the next 50 years by approximately 1.7 degrees Celsius 
([deg]C) (3 degrees Fahrenheit ([deg]F)). For example, in Chaves 
County, New Mexico, mean daily maximum temperature is expected to rise 
from approximately 24.7 [deg]C (76.5 [deg]F) in 2010, to approximately 
26.9 [deg]C (80.5 [deg]F) in 2060. Climate change scenario RCP 8.5 
projects climate conditions based on higher CO2 emissions. 
This scenario results in a projected change of approximately 3 [deg]C 
(5.5 [deg]F) over the next 50 years in Chaves County, New Mexico 
leading to a mean daily maximum of 28.2 [deg]C (82.7 [deg]F).
    While mean daily precipitation is not expected to vary drastically 
over the next 50 years, the variability in precipitation throughout the 
year will increase. For example, in Otero County, mean daily average 
precipitation is projected to decrease during certain times of the year 
and increase during other times of the year relative to current 
conditions. In addition, the timing of maximum precipitation events may 
occur during different months than experienced in the past. This 
variability in precipitation will contribute to more periods of extreme 
drought and severe flooding events, which may impact the availability 
of water during times critical to life-history traits of Wright's marsh 
thistle (NOAA 2017).
    Specific details on the effects of climate change are located in 
chapter 4 of the SSA report (USFWS 2017). Projected increases in 
temperature and increased variability in precipitation in locations 
where Wright's marsh thistle is currently located demonstrate the 
vulnerability of the species' habitat to changes in climate that will 
exacerbate the impact of existing stressors relating to availability of 
water and the extent of current and ongoing water withdrawals.
Decreased Water Availability: Summary
    In summary, ground and surface water withdrawal and potential 
future increases in the frequency, duration, or intensity of drought, 
individually and in combination, pose a threat to Wright's marsh 
thistle and its habitat in the future. In addition, as Wright's marsh 
thistle has small, isolated populations, we expect the stressor of 
decreased water availability to further impact the species' overall 
viability. Thus, we expect that this threat will likely remain a 
significant stressor to the thistle and will likely intensify in the 
foreseeable future.
Livestock Grazing
    In the semi-arid southwestern United States, wet marshes and other 
habitat of Wright's marsh thistle attract ungulates (e.g., livestock, 
elk, and deer) because of the availability of water and high-quality 
forage (Hendrickson and Minckley 1984, p. 134). Livestock grazing is 
present at localities in the Sacramento Mountains, Santa Rosa, Blue 
Springs, and Alamosa Springs. At the Santa Rosa locality, photographs 
indicate that the growth of Wright's marsh thistle and the integrity of 
its habitat have been negatively affected by livestock herbivory and 
trampling (Sivinski 2012 pp. 33-53). Dry periods likely increase the 
effects of livestock trampling and herbivory on Wright's marsh thistle 
when other water and forage plants are not available (75 FR 67925). 
Grazing may be more concentrated within habitats similar to those 
occupied by Wright's marsh thistle during drought years, when livestock 
are prone to congregate in wetland habitats or where forage production 
is greater than in adjacent dry uplands (USFS 2003, entire). Livestock 
may trample individual plants and eat the thistle when other green 
forage is scarce, and when the seedlings or rosettes are developing and 
abundant. Further, livestock may eat mature plant inflorescences (the 
complete flower head), which could reduce seed production. For example, 
the threatened Sacramento Mountains thistle (C. vinaceum) (52 FR 
22933), which is also found in New Mexico and associated with habitats 
similar to those occupied by Wright's marsh thistle, is eaten by 
livestock and appears to be the preferred forage at some times of the 
year. It may provide some of the only green forage during droughts 
(NMRPTC 2009, p. 2). Also, it is possible that livestock grazing within 
and adjacent to spring ecosystems could alter or remove habitat or 
limit the distribution of the thistle (USFWS 2017).
    Effects of grazing on Wright's marsh thistle depend on timing; 
winter grazing (after seed dispersal and before seedling growth in 
spring) probably has a low effect on survival and reproduction, 
although there could be some trampling of rosettes. On the other hand, 
spring and early summer grazing probably reduces growth, survival, and 
reproduction. Late summer and early fall grazing is most severe, as 
flowering plants typically set seed at this time;

[[Page 61467]]

therefore, grazing during this period would inhibit reproduction. 
Finally, if a patch of Wright's marsh thistle was heavily grazed during 
the time of bolting or flowering over 2 or more consecutive years, the 
seed bank and long-term population trend in the affected patch could be 
negatively impacted. For example, observations of the impacts of 
grazing at some of the Wright's marsh thistle localities show that 
fewer thistles mature into flowering adults when the population 
experiences grazing pressure (Sivinski 2012 pp. 33-53). Livestock 
activities are considered a widespread stressor at the current time; 
localized impacts have been observed and there is a high potential for 
effects to populations. Increased use of wet springs and marshes by 
livestock during drought conditions constitutes a significant stressor 
in the future.
    In summary, we find that livestock grazing poses a current and 
future threat to Wright's marsh thistle and its habitat through direct 
mortality and habitat degradation, and we expect that this threat will 
likely intensify at some localities (Sacramento Mountains, Santa Rosa, 
Blue Spring, Alamosa Springs) due to projected increases in drought 
periods that cause livestock to concentrate around Wright's marsh 
thistle localities. Because the thistle only occurs in small, isolated 
populations, the impacts of grazing could be a significant stressor to 
the species.
Native and Nonnative Plants
    Some native and nonnative plants pose a threat to Wright's marsh 
thistle and its habitat through habitat encroachment and competition 
for resources at most localities. The native plants include cattails 
(Typha spp.); nonnative species include the common reed (Phragmites 
australis), purple loosestrife (Lythrum salicaria), Russian olive 
(Elaeagnus angustifolia), saltcedar (Tamarix spp.), and Russian thistle 
(Salsola spp.) (Sivinski 1996, p. 6). These particular native and 
nonnative species all have the same effect on Wright's marsh thistle by 
functioning as invasive species with respect to the thistle's habitat. 
Though cattails and Wright's marsh thistle may have evolved in the same 
area, decreased water availability has altered habitat conditions such 
that cattails have a competitive advantage in Wright's marsh thistle 
habitat. These plants present unique challenges and potential threats 
to the habitat, including shade effects on Wright's marsh thistle 
seedlings and rosettes.
    For example, the common reed, a nonnative invasive plant introduced 
from Europe and Asia, increases the potential for wildfire and is 
increasing in density at some locations in New Mexico. The dense plant 
growth blocks sunlight to other plants growing in the immediate area 
and occupies all available habitat (PCA 2005, p. 1). The increase of 
the common reed in Wright's marsh thistle habitat is a current threat 
to the species through increased wildfire risk, competition, and 
changes in hydrology (impacts on degree of soil saturation), especially 
when habitat is disturbed through burning or drying. The impacts vary 
based on location, with the greatest impacts occurring at Santa Rosa, 
Bitter Lake NWR, Blue Spring, and Tularosa Creek.
    We expect that the threats caused by native and nonnative plant 
competition and habitat loss will likely continue and possibly 
intensify, due to lack of vegetation management practices at several 
locations (Santa Rosa, Blue Spring, Tularosa Creek) and the 
pervasiveness of native and nonnative plants despite ongoing efforts 
for habitat restoration at other locations (Bitter Lake NWR). As this 
species is comprised of small, isolated populations, the impacts of 
native and nonnative plants could pose a significant stressor to the 
thistle. Attempts to manage native and nonnative plants through 
herbicide use and mowing may also exacerbate effects to Wright's marsh 
thistle as these techniques are difficult to preferentially apply to 
only the native and nonnative plant species when habitat is shared. In 
addition, we expect increases in drought periods to exacerbate the 
effects of this stressor.
Oil and Gas Development and Mining
    Oil and gas development occurs within and adjacent (i.e., within 10 
miles) of some areas occupied by Wright's marsh thistle including Santa 
Rosa, Bitter Lake NWR, and Blue Spring (New Mexico State Lands Office, 
2017; NMDGF 2007, pp. 18-19; NMDGF 2005, p. 35). There are also mining 
activities adjacent (i.e., within 5 miles) to other areas such as a 
potential beryllium mine at Alamosa Springs, and subsurface drilling 
and exploration of the mineral bertrandite on Sullivan Ranch near 
Alamosa Springs (New Mexico Mining and Minerals Division 2010; New 
Mexico State Lands Office, 2017; Sivinski 2012, p. 9). As of February 
2020, the Service has no information on any new actions towards 
developing the potential beryllium mine at Alamosa Springs. The main 
impacts from oil and gas development and mining include the potential 
for contamination. Contamination from oil and gas development has been 
observed within close proximity (i.e., within 16 km (10 mi) of some 
Wright's marsh thistle localities (New Mexico State Lands Office, 
2017). While laws and regulations related to water quality have reduced 
the risk of contamination in and near occupied locations from oil and 
gas production, the likelihood that a spill could impact these habitats 
is still present based on the high volume of oil and gas leases near 
these areas.
    Potential contamination from both oil and gas development and 
mining could have several impacts on plants (such as Wright's marsh 
thistle), including the following: increased available nutrients, which 
may favor competitive or nonnative plant growth; altered soil pH 
(either higher or lower), which can kill plants; absorption of 
chemicals, which can poison plants or cause poor growth or dead spots 
on leaves; and plant mortality. In addition, oil and other contaminants 
from development and drilling activities throughout these areas could 
enter the aquifer supplying the springs and seeps inhabited by Wright's 
marsh thistle when the limestone layers are pierced by drilling 
activities. An accidental oil spill or groundwater contamination has 
the potential to pollute water sources that support Wright's marsh 
thistle, and mining activities could alter or destroy habitat.
    The largest occupied habitat area is less than 16 ha (40 ac), and 
more than half the known populations are less than 2 ha (5 ac) in size. 
Even a small, localized spill has the potential to contaminate and 
destroy a population. The loss of even one of the eight populations 
would result in loss of representation and redundancy to the species as 
a whole. Because this species is comprised of small, isolated 
populations, these stressors could potentially negatively affect the 
thistle, but it is unclear whether these impacts would be localized or 
widespread stressors as the interaction between contaminant spills and 
groundwater and surface water hydrology is poorly understood. 
Therefore, we have determined that oil and gas development and mining 
functions as a stressor to the future viability of the species via 
impacts to water sources that provide habitat for Wright's marsh 
thistle.

[[Page 61468]]



                                  Table 1--Stressors Impacting Each of the Eight Populations of Wright's Marsh Thistle
                                                                 [USFWS 2017, chapter 4]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                           Stressors to population
                                                   -----------------------------------------------------------------------------------------------------
                                                               Decreased water availability
                    Population                     ---------------------------------------------------                     Native and
                                                                     Groundwater and                      Livestock        nonnative       Oil and gas
                                                        Drought       surface water      Effects of        grazing           plants        development
                                                                        depletion      climate change
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Eastern Populations
--------------------------------------------------------------------------------------------------------------------------------------------------------
Santa Rosa Basin..................................              XX               XX               XX              XXX               XX                X
Bitter Lake NWR...................................              XX               XX               XX   ...............              XX               XX
Blue Spring.......................................              XX              XXX               XX               XX                X               XX
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Western Populations
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alamosa Springs...................................             XXX               XX               XX                X   ...............               X
Tularosa Creek....................................             XXX               XX               XX   ...............               X   ...............
Silver Springs....................................             XXX              XXX               XX                X   ...............  ...............
La Luz Canyon.....................................             XXX              XXX               XX                X   ...............  ...............
Karr/Haynes Canyon................................             XXX              XXX               XX                X                X   ...............
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: XXX indicates a significant stressor to the population, XX indicates a moderate stressor to the population, and X indicates a mild stressor to the
  population.

Conservation Measures and Regulatory Mechanisms
    Minimal conservation of Wright's marsh thistle is occurring on the 
Federal level. The Bitter Lake NWR manages invasive reeds in their 
moist soil/wetland units where the species is located. This management 
helps increase sunlight availability and decrease competition with 
nonnative species. The NWR also recently received a grant to complete 
seed collection efforts for Wright's marsh thistle. The Lincoln 
National Forest does not have active conservation for the thistle, but 
implements a 61-m (200-ft) buffer around occupied sites when projects 
occur within or near occupied areas.
    At the State level, Wright's marsh thistle is listed as endangered, 
under the authority of the New Mexico Statutes Annotated 1978, at title 
19 of the New Mexico Administrative Code at chapter 21, part 2, section 
9 (19 NMAC 21.2.9). The provisions in New Mexico state law prohibit the 
taking of endangered plants on all lands of New Mexico (except tribal 
lands), except under valid permit issued by the State, and encourage 
conservation by State government agencies. In this instance, ``taking'' 
means the removal, with the intent to possess, transport, export, sell, 
or offer for sale. Further, if Wright's marsh thistle is listed under 
the Act, the State may enter into agreements with Federal agencies to 
administer and manage any area required for the conservation, 
management, enhancement, or protection of listed species. Funds for 
these activities could be made available under section 6 of the Act 
(Cooperation with the States). Thus, the Federal protection afforded to 
this plant by listing it as an endangered or threatened species would 
be reinforced and supplemented by protection under State law. In 
addition to the state endangered listing for Wright's marsh thistle, 
some protection is offered to the species through Title 19 of the New 
Mexico Administrative Code at chapter 15, part 2 (19 NMAC 15.2) which 
outlines general environmental provisions for water and wildlife 
relating to oil and gas operations including information on methods to 
reduce risk of contamination to the surrounding habitat. While this 
reduces the risks associated with oil and gas production to nearby 
occupied locations of the thistle, the high volume of oil and gas 
leases near these sites means the risk of impacts from a spill still 
persist.

Future Scenarios Considered

    As there are a range of possibilities regarding the intensity of 
stressors (i.e., decreased water availability to habitat, ungulate 
grazing, native and nonnative plants, oil and gas development, and 
mining) acting on the populations, we forecast Wright's marsh thistle's 
resiliency, representation, and redundancy under four plausible 
scenarios in the SSA report. For these scenarios, we considered four 
different trajectories for all threats acting on the species (i.e., all 
threats increasing at two different rates, decreasing, or remaining at 
the current level). We did not look at interactions between threats 
(i.e., one threat increasing with another threat decreasing), as data 
were not sufficient for this type of analysis. These four scenarios 
incorporate the best available information on projection of threat data 
up to 50 years in the future. Sources of data include, but are not 
limited to, development (urban, agricultural, oil and gas and mining) 
plans for various areas and climate change models. For example, we 
referenced the City of Alamogordo's 50-year development plan for 
projections of future water withdrawals. In regards to climate change 
models, we used a moderate emissions climate change scenario of RCP 4.5 
from the 2017 U.S. Climate Resilience Toolkit, which provides a range 
of projections for temperature and precipitation through 2100 (NOAA 
2017). We also used the U.S. Geological Survey's Monthly Water Balance 
Model Futures Portal that provides projections out to the year 2095 for 
changes in evapotranspiration (USGS 2017, entire). Some, but not all, 
of the threats could be projected beyond 50 years into the future. 
Therefore, to develop our future scenarios, we only used projection 
information up to 50-years into the future, the timeframe that includes 
projections for all future threats and for which we could predict the 
expected future resiliency and overall condition for each population 
based on our knowledge of the species' expected response to identified 
threats.
    First, the ``Continuing Current Conditions'' scenario projects the 
condition of Wright's marsh thistle populations if the current risks to 
population viability continue with the same trajectory as experienced 
currently. Decreased water availability

[[Page 61469]]

continues to impact the populations via continuing levels of drought, 
along with ground and surface water depletion. Grazing continues where 
it has been occurring, and the impacts will accumulate. Competition 
from native and nonnative plants continues, along with any current 
impacts from oil and gas development. For this scenario, we used the 
mean level of projected values in temperature (an increase in mean 
daily maximum temperature of approximately 0.83 [deg]C (1.5 [deg]F) 
over 50 years).
    Second, the ``Optimistic'' scenario projects the condition of 
Wright's marsh thistle populations if conservation measures are put in 
place to limit the impacts of current risks to population viability, 
including conservation efforts to address decreased water availability, 
livestock grazing, and competition with native and nonnative plants. 
For this scenario, we used the low level of projected values in 
temperature (an increase in mean daily maximum temperature of 
approximately 0.56 [deg]C (1.0 [deg]F) over 50 years and increases in 
mean monthly potential evapotranspiration of 0 to 10 millimeters (mm) 
(0 to 0.4 inches (in)) over 50 years), leading to less severe effects 
of drought on the riparian ecosystems of which Wright's marsh thistle 
is a part.
    Third, the ``Major Effects'' scenario projects the condition of 
Wright's marsh thistle if stressors on the populations are increased. 
We expect a decrease in water availability, along with increased 
negative impacts from grazing, native and nonnative plants, oil and gas 
development, and mining. For this scenario, we used the moderate level 
of projected values in temperature (an increase in mean daily maximum 
temperature of approximately 1.7 [deg]C (3.0 [deg]F) over 50 years, and 
increases in mean monthly potential evapotranspiration of 10 to 30 mm 
(0.4 to 1.2 in) over 50 years), with increased impacts of drought.
    Finally, the ``Severe Effects'' scenario projects the condition of 
Wright's marsh thistle populations under the assumption that stressors 
on the populations are highly increased. Compared to the ``Major 
Effects'' scenario, we expect a further decrease in water availability, 
along with further increased negative impacts from ungulate grazing, 
native and nonnative plants, oil and gas development, and mining. For 
this scenario, we used the high level of projected values in 
temperature (an increase in mean daily maximum temperature of 
approximately 2.8 [deg]C (5.0 [deg]F) over 50 years and increases in 
mean monthly potential evapotranspiration of 30 to 80 mm (1.2 to 3.1 
in) over 50 years) with increased impacts of drought.
    Thus, we considered the range of potential likely scenarios that 
represent different possibilities for how the stressors outlined above 
may influence the future condition of the species. The results of this 
analysis for each scenario are presented below in Table 2. For specific 
details on how each scenario impacted the six factors (habitat 
quantity, number of patches, abundance, reproduction, permanent root 
saturation, and full sun) contributing to overall condition of each 
population, refer to chapter 5 of the SSA report (USFWS 2017).

               Table 2--Condition Ratings for each of the Eight Populations of Wright's Marsh Thistle Under Four Possible Future Scenarios
                                                                 [USFWS 2017, Chapter 5]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Scenario 1: Continuing                              Scenario 3: Major      Scenario 4: Severe
          Population              Current condition        current conditions     Scenario 2: Optimistic          effects                 effects
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Eastern Populations
--------------------------------------------------------------------------------------------------------------------------------------------------------
Santa Rosa Basin.............  Moderate...............  Moderate...............  High...................  Moderate..............  Low.
Bitter Lake NWR..............  Moderate...............  Moderate...............  High...................  Moderate..............  Low.
Blue Spring..................  Moderate...............  Low....................  Moderate...............  Low...................  Low.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Western Populations.....................................................................................................................................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alamosa Springs..............  Low....................  Low....................  Low....................  Very Low..............  Extirpated.
Tularosa Creek...............  Very Low...............  Extirpated.............  Very Low...............  Extirpated............  Extirpated.
Silver Springs...............  Very Low...............  Very Low...............  Very Low...............  Extirpated............  Extirpated.
La Luz Canyon................  Very Low...............  Very Low...............  Very Low...............  Extirpated............  Extirpated.
Karr/Haynes Canyon...........  Low....................  Low....................  Low....................  Low...................  Extirpated.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have not 
only analyzed individual effects on the species, but we have also 
analyzed their potential cumulative effects. We incorporate the 
cumulative effects into our SSA analysis when we characterize the 
current and future condition of the species. Our assessment of the 
current and future conditions encompasses and incorporates the threats 
individually and cumulatively. Our current and future condition 
assessment is iterative because it accumulates and evaluates the 
effects of all the factors that may be influencing the species, 
including threats and conservation efforts. Because the SSA framework 
considers not just the presence of the factors, but to what degree they 
collectively influence risk to the entire species, our assessment 
integrates the cumulative effects of the factors and replaces a 
standalone cumulative effects analysis.

Determination of the Status of Wright's Marsh Thistle

    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 ``endangered species'' as a species 
``in danger of extinction throughout all or a significant portion of 
its range,'' and ``threatened species'' as a species ``likely to become 
an endangered species within the foreseeable future throughout all or a 
significant portion of its range.'' The Act requires that we determine 
whether a species meets the definition of ``endangered species'' or 
``threatened species'' because of any of the following factors: (A) The 
present or threatened destruction, modification, or curtailment of its 
habitat or range; (B) overutilization for commercial, recreational, 
scientific, or educational

[[Page 61470]]

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

    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
and the cumulative effect of the threats under the section 4(a)(1) 
factors to Wright's marsh thistle.
    Wright's marsh thistle is a narrow endemic (restricted to a small 
range) with a historical, documented decline. The historical range of 
the species included 10 locations in New Mexico, 2 locations in 
Arizona, and 2 locations in Mexico. Wright's marsh thistle has been 
extirpated from all previously known locations in Arizona and Mexico, 
as well as two locations in New Mexico. In addition, the currently 
extant populations have declined in population numbers over time based 
on comparisons between 1995 and 2012 surveys (Sivinski 1996 entire, 
2012 entire). As a result, the remaining extant area of the eight 
populations has contracted in recent years, and is currently 
approximately only 43 ha (106 ac). Of the remaining eight extant 
populations, three have moderate resiliency, two have low resiliency, 
and three have very low resiliency and are likely at risk of 
extirpation (USFWS 2017). The species historically had representation 
in the form of two morphologically distinct and geographically separate 
forms; the species continues to maintain representation currently in 
these forms, although population sizes have decreased.
    Wright's marsh thistle faces threats from habitat degradation due 
to decreased water availability, livestock grazing, native and 
nonnative plants, and oil and gas development and mining (Factor A). 
These threats, which are expected to be exacerbated by continued 
drought and the effects of climate change (Factor E), were important 
factors in our assessment of the future viability of Wright's marsh 
thistle. In addition, small, isolated populations and lack of 
connectivity contribute to the thistle's low resiliency to stochastic 
events (Factor E). We expect a further decrease in water availability, 
along with increased negative impacts from grazing, native and 
nonnative plants, oil and gas development, and mining. Given current 
and anticipated future decreases in resiliency, populations would 
become more vulnerable to extirpation from stochastic events, in turn, 
resulting in concurrent losses in representation and redundancy. The 
range of plausible future scenarios of the species' habitat conditions 
and population factors suggest possible extirpation in as many as five 
of eight currently extant populations. The most optimistic model 
predicted that while no populations were likely to become extirpated, 
three of the eight populations were expected to have very low 
resiliency.
    As assessed in the SSA report and displayed above in Table 2, the 
current condition rankings for the eight extant populations show that 
three populations are in moderate condition, two population are in low 
condition, and three populations are in very low condition. Wright's 
marsh thistle also exhibits representation across two morphologically 
distinct and geographically separate forms. While threats are currently 
acting on the thistle throughout its range, the three eastern 
populations (Santa Rosa, Bitter Lake, and Blue Springs) were found to 
have high or moderate resiliency for their current condition. 
Therefore, we did not find that the thistle is currently in danger of 
extinction throughout all of its range, based on the current condition 
of the species; thus, an endangered status is not appropriate.
    Wright's marsh thistle meets the definition of a threatened species 
because it is facing threats across its range that have led to reduced 
resiliency, redundancy, and representation. According to our assessment 
of plausible future scenarios, the species is likely to become an 
endangered species within the foreseeable future throughout all of its 
range. For the purposes of this determination, the foreseeable future 
is considered approximately 25 years into the future. This timeframe 
was arrived at by looking at the various future projections associated 
with data from the Intergovernmental Panel on Climate Change (IPCC), 
U.S. Climate Resilience Toolkit, future development plans from the City 
of Alamogordo and Santa Rosa, and grazing management information from 
the U.S. Forest Service. These data sources covered a variety of time 
frames, but all covered a span of at least 50 years. We therefore 
looked at the projections from these sources in each of our future 
scenarios out to three time steps: 10 years, 25 years, and 50 years. We 
found that as the projections for the various stressors went past 25 
years in the scenarios, the uncertainties associated with some of those 
projections, particularly water use and depletion, increased. Thus, for 
the purposes of this determination, we were most confident in setting 
the foreseeable future at 25 years.
    Our analysis of the species' current and future conditions show 
that the population and habitat factors used to determine the 
resiliency, representation, and redundancy for Wright's marsh thistle 
are likely to continue to decline to the degree that the thistle is 
likely to become in danger of extinction within the foreseeable future 
throughout all or a significant portion of its range. While the 
``Optimistic'' scenario resulted in two of the populations with 
moderate current condition improving to high condition due to increased 
conservation measures, the other three scenarios all resulted in 
decreased resiliency for some if not most populations. The ``Continuing 
Condition'' scenario resulted in one of the current eight extant 
populations becoming extirpated, the ``Major Effects'' scenario 
resulted in three of the current eight extant populations becoming 
extirpated, and the ``Severe Effects'' scenario resulted in five of the 
current eight extant populations becoming extirpated. Based on our 
understanding of the increasing trends in threats as analyzed into the 
foreseeable future (i.e., 25 years), the likelihood of occurrence of 
the ``Major Effects'' and ``Severe Effects'' scenarios increases as 
time progresses. The decreased resiliency of populations projected in 
three of the four scenarios would lead to subsequent losses in 
redundancy and representation, and an overall decline in species 
viability in the foreseeable future. Further details on the likelihood 
of scenarios can be found in chapter 5 of the SSA report (USFWS 2017).
    Due to the continuation of threats at increasing levels, we 
anticipate a severe reduction in the thistle's future overall range and 
the extirpation of several populations. Furthermore, we anticipate that 
the variety of factors acting in combination on the remaining habitat 
and populations are likely to reduce the overall viability of the 
species to a dangerously low level. In addition, the conservation 
measures currently in place are not adequate to overcome the negative 
impacts from increasing threats, and future conservation measures are 
not considered highly plausible. The risk of extinction will be high 
because the remaining populations are small, are isolated, and have 
limited or no potential for recolonization after local population 
extirpations. Thus, after assessing the best available information, we 
determine that Wright's marsh thistle is not currently in danger of 
extinction, but is likely to become in danger of extinction within the

[[Page 61471]]

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 
in the foreseeable future throughout all or a significant portion of 
its range. The court in Center for Biological Diversity v. Everson, 
2020 WL 437289 (D.D.C. Jan. 28, 2020) (Center for Biological 
Diversity), vacated the aspect of the 2014 Significant Portion of its 
Range Policy that provided that the Services do not undertake an 
analysis of significant portions of a species' range if the species 
warrants listing as threatened throughout all of its range. Therefore, 
we proceed to evaluating whether the species is endangered in a 
significant portion of its range--that is, whether there is any portion 
of the species' range for which both (1) the portion is significant; 
and, (2) the species is in danger of extinction in that portion. 
Depending on the case, it might be more efficient for us to address the 
``significance'' question or the ``status'' question first. We can 
choose to address either question first. Regardless of which question 
we address first, if we reach a negative answer with respect to the 
first question that we address, we do not need to evaluate the other 
question for that portion of the species' range.
    Following the court's holding in Center for Biological Diversity, 
we now consider whether there are any significant portions of the 
species' range where the species is in danger of extinction now (i.e., 
endangered). In undertaking this analysis for Wright's marsh thistle, 
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 any portions of the range 
where the species is endangered.
    For Wright's marsh thistle, we considered whether the threats are 
geographically concentrated in any portion of the species' range at a 
biologically meaningful scale. In light of the species' needs (i.e., 
permanent root saturation; alkaline soils; full, direct, or nearly full 
sunlight; and abundant pollinators), we examined the following threats 
(including cumulative threats): Habitat degradation due to decreased 
water availability, livestock grazing, native and non-native plants, 
and oil and gas development and mining; continued drought and the 
effects of climate change; and small, isolated populations. Each 
population of Wright's marsh thistle was determined to have some level 
of impact from each threat listed above, with variations in source and 
intensity. For example, habitat degradation due to decreased water 
availability at the Santa Rosa population location is influenced by 
agricultural use, while the La Luz Canyon population location is 
influenced primarily by municipal use. In another example, livestock 
grazing tends to be present with greater intensity near the Santa Rosa 
population location than near the La Luz Canyon population location. 
While there may be some variation in the source and intensity of each 
individual threat at each population location, we found no 
concentration of threats in any portion of Wright's marsh thistle's 
range at a biologically meaningful scale. Thus, there are no portions 
of the species' range where the species has a different status from its 
rangewide status.
    Therefore, no portion of the species' range provides a basis for 
determining that the species is in danger of extinction in a 
significant portion of its range, and we determine that the species is 
likely to become in danger of extinction within the foreseeable future 
throughout all of its range. This is consistent with the courts' 
holdings in Desert Survivors v. Department of the Interior, No. 16-cv-
01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), and Center for 
Biological Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 
2017).

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that Wright's marsh thistle meets the definition 
of a threatened species. Therefore, we propose to list Wright's marsh 
thistle as a threatened species in accordance with sections 3(20) and 
4(a)(1) of the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness and 
conservation by Federal, State, Tribal, and local agencies; private 
organizations; and individuals. The Act encourages cooperation with the 
States and other countries and calls for recovery actions to be carried 
out for listed species. The protection required by Federal agencies and 
the prohibitions against certain activities are discussed, in part, 
below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Subsection 4(f) of the Act calls for the Service to develop 
and implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning includes the development of a recovery outline 
shortly after a species is listed and subsequent preparation of a draft 
and final recovery plan. The recovery outline guides the immediate 
implementation of urgent recovery actions and describes the process to 
be used to develop a recovery plan. Revisions of the plan may be done 
to address continuing or new threats to the species, as new substantive 
information becomes available. The recovery plan also identifies 
recovery criteria for review of when a species may be ready for 
reclassification from endangered to threatened (``downlisting'') or for 
removal from protected status (``delisting''), and methods for 
monitoring recovery progress. Recovery plans also establish a framework 
for agencies to coordinate their recovery efforts and provide estimates 
of the cost of implementing recovery tasks. Recovery teams (composed of 
species experts, Federal and State agencies, nongovernmental 
organizations, and stakeholders) are often established to develop 
recovery plans. When completed, the recovery outline, draft recovery 
plan, and the final recovery plan will be available on our website 
(http://www.fws.gov/endangered).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To

[[Page 61472]]

achieve recovery of these species requires cooperative conservation 
efforts on private, State, and Tribal lands.
    If this species is listed, funding for recovery actions will be 
available from a variety of sources, including Federal budgets, State 
programs, and cost share grants for non-Federal landowners, the 
academic community, and nongovernmental organizations. In addition, 
pursuant to section 6 of the Act, the State of New Mexico would be 
eligible for Federal funds to implement management actions that promote 
the protection or recovery of Wright's marsh thistle. Information on 
our grant programs that are available to aid species recovery can be 
found at: http://www.fws.gov/grants.
    Although Wright's marsh thistle is only proposed for listing under 
the Act at this time, please let us know if you are interested in 
participating in recovery efforts for this species. Additionally, we 
invite you to submit any new information on this species whenever it 
becomes available and any information you may have for recovery 
planning purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as an 
endangered or threatened species and with respect to its critical 
habitat, if any is designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any action that is likely to jeopardize the 
continued existence of a species proposed for listing or result in 
destruction or adverse modification of proposed critical habitat. If a 
species is listed subsequently, section 7(a)(2) of the Act requires 
Federal agencies to ensure that activities they authorize, fund, or 
carry out are not likely to jeopardize the continued existence of the 
species or destroy or adversely modify its critical habitat. If a 
Federal action may affect a listed species or its critical habitat, the 
responsible Federal agency must enter into consultation with the 
Service.
    Federal agency actions within the species' habitat that may require 
conference or consultation or both as described in the preceding 
paragraph include management and any other landscape-altering 
activities on Federal lands administered by the U.S. Fish and Wildlife 
Service and U.S. Forest Service; issuance of section 404 Clean Water 
Act (33 U.S.C. 1251 et seq.) permits by the U.S. Army Corps of 
Engineers; and construction and maintenance of roads or highways by the 
Federal Highway Administration.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable at 
the time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of a proposed 
listing on proposed and ongoing activities within the range of the 
species proposed for listing. The discussion below regarding protective 
regulations under section 4(d) of the Act complies with our policy.

II. Proposed Rule Issued Under Section 4(d) of the Act

Background

    Section 4(d) of the Act contains two sentences. The first sentence 
states that the ``Secretary shall issue such regulations as he deems 
necessary and advisable to provide for the conservation'' of species 
listed as threatened. The U.S. Supreme Court has noted that statutory 
language like ``necessary and advisable'' demonstrates a large degree 
of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)). 
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.'' Thus, the combination of the 
two sentences of section 4(d) provides the Secretary with wide latitude 
of discretion to select and promulgate appropriate regulations tailored 
to the specific conservation needs of the threatened species. The 
second sentence grants particularly broad discretion to the Service 
when adopting the prohibitions under section 9.
    The courts have recognized the extent of the Secretary's discretion 
under this standard to develop rules that are appropriate for the 
conservation of a species. For example, courts have upheld rules 
developed under section 4(d) as a valid exercise of agency authority 
where they prohibited take of threatened wildlife, or include a limited 
taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007 
U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council 
v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (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 him with regard to the permitted activities for those species. He 
may, for example, permit taking, but not importation of such species, 
or he 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).
    Exercising its authority under section 4(d), the Service has 
developed a proposed rule that is designed to address Wright's marsh 
thistle's specific threats and conservation needs. Although the statute 
does not require the Service to make a ``necessary and advisable'' 
finding with respect to the adoption of specific prohibitions under 
section 9, we find that this rule as a whole satisfies the requirement 
in section 4(d) of the Act to issue regulations deemed necessary and 
advisable to provide for the conservation of the Wright's marsh 
thistle. As discussed above under Summary of Biological Status and 
Threats, the Service has concluded that Wright's marsh thistle is 
likely to become in danger of extinction within the foreseeable future 
primarily due to habitat loss and modification. The provisions of this 
proposed 4(d) rule would promote conservation of the species by 
encouraging management of the landscape in ways that meet landowner's 
management priorities while providing for the conservation needs of 
Wright's marsh thistle. The provisions of this proposed rule are one of 
many tools that the Service would use to promote the conservation of 
the Wright's marsh thistle. This proposed 4(d) rule would apply only if 
and when the Service makes final the listing of Wright's marsh thistle 
as a threatened species.

Provisions of the Proposed 4(d) Rule

    This proposed 4(d) rule would provide for the conservation of 
Wright's marsh thistle by prohibiting, except as otherwise authorized 
or permitted, any person subject to the jurisdiction of the United 
States from the following: Removing and reducing to possession the 
species from areas under Federal jurisdiction; maliciously damaging or 
destroying the species on any area under Federal jurisdiction; or 
removing, cutting, digging up, or damaging or

[[Page 61473]]

destroying the species on any area under Federal jurisdiction in 
knowing violation of any law or regulation of any State or in the 
course of any violation of a State criminal trespass law. Almost 30 
percent of occupied Wright's marsh thistle habitat is on Federal land.
    As discussed in the Summary of Biological Status and Threats 
(above), habitat loss and modification are affecting the viability of 
Wright's marsh thistle. A range of activities that occur on Federal 
land have the potential to impact the thistle, including changes in 
water availability, ungulate grazing, and oil and gas development. The 
regulation of these activities through this 4(d) rule would help 
enhance the conservation of Wright's marsh thistle by preserving the 
species' remaining populations on Federal lands and decrease 
synergistic, negative effects from other stressors. As a whole, the 
proposed 4(d) rule would help in the efforts to recover the species.
    We may issue permits to carry out otherwise prohibited activities, 
including those described above, involving threatened plants under 
certain circumstances. Regulations governing permits for threatened 
plants are codified at 50 CFR 17.72, which states that ``the Director 
may issue a permit authorizing any activity otherwise prohibited with 
regard to threatened species.'' That regulation also states, ``The 
permit shall be governed by the provisions of this section unless a 
special rule applicable to the plan is provided in sections 17.73 to 
17.78.'' We interpret that second sentence to mean that permits for 
threatened species are governed by the provisions of section 17.72 
unless a special rule provides otherwise. We recently promulgated 
revisions to section 17.71 providing that section 17.71 will no longer 
apply to plants listed as threatened in the future. We did not intend 
for those revisions to limit or alter the applicability of the 
permitting provisions in section 17.72, or to require that every 
special rule spell out any permitting provisions that apply to that 
species and special rule. To the contrary, we anticipate that 
permitting provisions would generally be similar or identical for most 
species, so applying the provisions of section 17.72 unless a special 
rule provides otherwise would likely avoid substantial duplication. 
Moreover, this interpretation brings section 17.72 in line with the 
comparable provision for wildlife at 50 CFR 17.32, in which the second 
sentence states, ``Such permit shall be governed by the provisions of 
this section unless a special rule applicable to the wildlife, 
appearing in sections 17.40 to 17.48, of this part provides 
otherwise.'' Under 50 CFR 17.12, with regard to threatened plants, a 
permit may be issued for the following purposes: Scientific purposes, 
to enhance propagation or survival, for economic hardship, for 
botanical or horticultural exhibition, for educational purposes, or 
other purposes consistent with the purposes of the Act. Additional 
statutory exemptions from the prohibitions are found in sections 9 and 
10 of the Act.
    The Service recognizes the special and unique relationship 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 the Services in implementing all aspects of the Act. 
In this regard, section 6 of the Act provides that the Services shall 
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 which is a party to a 
cooperative agreement with the Service in accordance with section 6(c) 
of the Act, who is designated by his or her agency for such purposes, 
would be able to conduct activities designed to conserve Wright's marsh 
thistle that may result in otherwise prohibited activities without 
additional authorization.
    Nothing in this proposed 4(d) rule would change in any way the 
recovery planning provisions of section 4(f) of the Act, the 
consultation requirements under section 7 of the Act, or the ability of 
the Service to enter into partnerships for the management and 
protection of Wright's marsh thistle. However, interagency cooperation 
may be further streamlined through planned programmatic consultations 
for the species between Federal agencies and the Service, where 
appropriate. We ask the public, particularly State agencies and other 
interested stakeholders that may be affected by the proposed 4(d) rule, 
to provide comments and suggestions regarding additional guidance and 
methods that the Service could provide or use, respectively, to 
streamline the implementation of this proposed 4(d) rule (see 
Information Requested, above).

III. Proposed Designation of Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features.
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as an area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely by vagrant individuals).
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not allow the government 
or public to access private lands. Such designation does not require

[[Page 61474]]

implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the Federal agency would be required to consult 
with the Service under section 7(a)(2) of the Act. However, even if the 
Service were to conclude that the proposed activity would result in 
destruction or adverse modification of the critical habitat, the 
Federal action agency and the landowner are not required to abandon the 
proposed activity, or to restore or recover the species; instead, they 
must implement ``reasonable and prudent alternatives'' to avoid 
destruction or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical or biological features that occur in specific areas, we focus 
on the specific features that are essential to support the life-history 
needs of the species, including, but not limited to, water 
characteristics, soil type, geological features, prey, vegetation, 
symbiotic species, or other features. A feature may be a single habitat 
characteristic, or a more complex combination of habitat 
characteristics. Features may include habitat characteristics that 
support ephemeral or dynamic habitat conditions. Features may also be 
expressed in terms relating to principles of conservation biology, such 
as patch size, distribution distances, and connectivity.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. When designating critical habitat, the Secretary will first 
evaluate areas occupied by the species. The Secretary will only 
consider unoccupied areas to be essential where a critical habitat 
designation limited to geographical areas occupied by the species would 
be inadequate to ensure the conservation of the species. In addition, 
for an unoccupied area to be considered essential, the Secretary must 
determine that there is a reasonable certainty both that the area will 
contribute to the conservation of the species and that the area 
contains one or more of those physical or biological features essential 
to the conservation of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information Quality Guidelines, provide criteria, 
establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific data available, to use primary and original sources 
of information as the basis for recommendations to designate critical 
habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information from the SSA report and information developed during the 
listing process for the species. Additional information sources may 
include any generalized conservation strategy, criteria, or outline 
that may have been developed for the species; the recovery plan for the 
species; articles in peer-reviewed journals; conservation plans 
developed by States and counties; scientific status surveys and 
studies; biological assessments; other unpublished materials; or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act; (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species; and, (3) the Act's prohibitions on certain actions that may 
affect the species or its habitat. Federally funded or permitted 
projects affecting listed species outside their designated critical 
habitat areas may still result in jeopardy findings in some cases. 
These protections and conservation tools will continue to contribute to 
recovery of this species. Similarly, critical habitat designations made 
on the basis of the best available information at the time of 
designation will not control the direction and substance of future 
recovery plans, habitat conservation plans, or other species 
conservation planning efforts if new information available at the time 
of these planning efforts calls for a different outcome.

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12), require that, to the maximum extent 
prudent and determinable, the Secretary shall designate critical 
habitat at the time the species is determined to be an endangered or 
threatened species. Our regulations (50 CFR 424.12(a)(1)) state that 
the Secretary may, but is not required to, determine that a designation 
would not be prudent in the following circumstances:
    (i) The species is threatened by taking or other human activity and 
identification of critical habitat can be expected to increase the 
degree of such threat to the species;
    (ii) The present or threatened destruction, modification, or 
curtailment of a species' habitat or range is not a threat to the 
species, or threats to the species' habitat stem solely from causes 
that cannot be addressed through management actions resulting from 
consultations under section 7(a)(2) of the Act;
    (iii) Areas within the jurisdiction of the United States provide no 
more than negligible conservation value, if any, for a species 
occurring primarily outside the jurisdiction of the United States;
    (iv) No areas meet the definition of critical habitat; or
    (v) The Secretary otherwise determines that designation of critical 
habitat would not be prudent based on the best scientific data 
available.
    As discussed earlier in this document, there is currently no 
imminent threat of

[[Page 61475]]

collection or vandalism identified under Factor B for this species, and 
identification and mapping of critical habitat is not expected to 
initiate any such threat. In our SSA and proposed listing determination 
for Wright's marsh thistle, we determined that the present or 
threatened destruction, modification, or curtailment of habitat or 
range is a threat to Wright's marsh thistle and that those threats in 
some way can be addressed by section 7(a)(2) consultation measures. The 
species occurs wholly in the jurisdiction of the United States, and we 
are able to identify areas that meet the definition of critical 
habitat. Therefore, because none of the circumstances enumerated in our 
regulations at 50 CFR 424.12(a)(1) has been met and because there are 
no other circumstances the Secretary has identified for which this 
designation of critical habitat would be not prudent, we have 
determined that the designation of critical habitat is prudent for 
Wright's marsh thistle.

Critical Habitat Determinability

    Having determined that designation is prudent, under section 
4(a)(3) of the Act we must find whether critical habitat for Wright's 
marsh thistle is determinable. Our regulations at 50 CFR 424.12(a)(2) 
state that critical habitat is not determinable when one or both of the 
following situations exist:
    (i) Data sufficient to perform required analyses are lacking, or
    (ii) The biological needs of the species are not sufficiently well 
known to identify any area that meets the definition of ``critical 
habitat.''
    When critical habitat is not determinable, the Act allows the 
Service an additional year to publish a critical habitat designation 
(16 U.S.C. 1533(b)(6)(C)(ii)).
    We reviewed the available information pertaining to the biological 
needs of the species and habitat characteristics where this species is 
located. This and other information represent the best scientific data 
available and led us to conclude that the designation of critical 
habitat is determinable for Wright's marsh thistle.

Physical or Biological Features

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas within the geographical 
area occupied by the species at the time of listing to designate as 
critical habitat, we consider the physical or biological features that 
are essential to the conservation of the species and which may require 
special management considerations or protection. The regulations at 50 
CFR 424.02 define ``physical or biological features essential to the 
conservation of the species'' as the features that occur in specific 
areas and that are essential to support the life-history needs of the 
species, including, but not limited to, water characteristics, soil 
type, geological features, sites, prey, vegetation, symbiotic species, 
or other features. A feature may be a single habitat characteristic or 
a more complex combination of habitat characteristics. Features may 
include habitat characteristics that support ephemeral or dynamic 
habitat conditions. Features may also be expressed in terms relating to 
principles of conservation biology, such as patch size, distribution 
distances, and connectivity. For example, physical features essential 
to the conservation of the species might include gravel of a particular 
size required for spawning, alkali soil for seed germination, 
protective cover for migration, or susceptibility to flooding or fire 
that maintains necessary early-successional habitat characteristics. 
Biological features might include prey species, forage grasses, 
specific kinds or ages of trees for roosting or nesting, symbiotic 
fungi, or a particular level of nonnative species consistent with 
conservation needs of the listed species. The features may also be 
combinations of habitat characteristics and may encompass the 
relationship between characteristics or the necessary amount of a 
characteristic needed to support the life history of the species.
    In considering whether features are essential to the conservation 
of the species, the Service may consider an appropriate quality, 
quantity, and spatial and temporal arrangement of habitat 
characteristics in the context of the life-history needs, condition, 
and status of the species. These characteristics include, but are not 
limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance.

Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements

    Water availability is a requirement for three of the four life 
stages of Wright's marsh thistle's life cycle: Seedlings, rosettes, and 
mature plants. Optimal habitat should include seeps, springs, cienegas, 
and streams spreading water normally both above and below ground, with 
surface or subsurface water flow. The water present in this habitat 
should be sufficient to allow for permanent root saturation of Wright's 
marsh thistle in order to provide conditions needed for successful 
reproduction and survival.
    Alkaline soils are required by all four life stages of Wright's 
marsh thistle's life cycle: Seeds, seedlings, rosettes, and mature 
plants. These soils are typically found associated with alkaline 
springs and seeps ranging from low desert up to ponderosa pine forest. 
Often, water may be available on the landscape in a variety of riparian 
areas; however, without the presence of alkaline soils in conjunction 
with water availability, Wright's marsh thistle is unlikely to maintain 
viability.
    Full sunlight is necessary for development of rosettes into mature 
plants, as well as the survival of mature plants. Optimal habitat 
includes areas which provide access to sufficient sunlight exposure 
with no obstructions of sunlight during most life stages of Wright's 
marsh thistle. These areas should not have dense vegetative cover, 
which creates competition for sunlight and can negatively impact 
maturation and flowering of the thistle.

Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring

    Diverse native floral communities are necessary to attract 
pollinators in order to complete cross pollination of Wright's marsh 
thistle plants. These communities vary depending on location but may 
include bulrush (Scirpus spp.), beaked spikerush (Eleocharis 
rostellata), Pecos sunflower (Helianthus paradoxus), rush (Juncus 
spp.), cattail (Typha spp.), and other native flowering plants 
(Sivinski 1996, pp. 2-4). Many generalist pollinators may visit 
Wright's marsh thistle (Sivinski 2017, entire). The most common 
pollinators of the thistle are bees, especially bumble bees (Bombus 
spp.) (Sivinski 2017, entire). A diverse native floral community 
ensures sufficient pollinators to promote cross pollination within and 
among patches of Wright's marsh thistle.

Summary of Essential Physical or Biological Features

    We derive the specific physical or biological features essential to 
the conservation of Wright's marsh thistle from studies of the species' 
habitat, ecology, and life history as described below. Additional 
information can be found in the SSA report (USFWS 2017,

[[Page 61476]]

p. 39) available on http://www.regulations.gov under Docket No. FWS-R2-
ES-2018-0071). We have determined that the following physical or 
biological features are essential to the conservation of Wright's marsh 
thistle:
     Water-saturated soils with surface or subsurface water 
flow that allows permanent root saturation and seed germination;
     Alkaline soils;
     Full sunlight; and
     Diverse floral communities to attract pollinators.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features which are essential to the conservation of 
the species and which may require special management considerations or 
protection. As mentioned above, in the case of Wright's marsh thistle, 
these features include water-saturated soils with surface or subsurface 
water flow that allows permanent root saturation and seed germination, 
alkaline soils, full sunlight, and diverse floral communities to 
attract pollinators. The features may require special management 
considerations or protection to reduce the following threats: Ground 
and surface water depletion, increasing drought and changes in climate 
change, livestock grazing, oil and gas development and mining, and 
native and nonnative plants. Localized stressors may also include 
herbicide use and mowing. The species occupies small areas of seeps, 
springs, and wetland habitat in an arid region that is experiencing 
drought as well as ongoing and future water withdrawals. The species' 
highly specific requirements of saturated soils with surface or 
subsurface water flow make it particularly vulnerable to desiccation 
and loss of suitable habitat. Furthermore, the thistle's need for full 
sunlight makes it particularly vulnerable to native and nonnative grass 
planting and habitat encroachment.
    Special management considerations or protections are required 
within critical habitat areas to address these threats. Management 
activities that could ameliorate these threats include, but are not 
limited to: (1) Conservation efforts to ensure sufficient water 
availability; (2) managing livestock grazing via the use of exclosures; 
(3) control of native and nonnative plants via controlled burning or 
mechanical treatments; (4) spill prevention and groundwater protection 
during oil and gas development and mining; (5) watershed/wetland 
restoration efforts; and (6) efforts to restore a diverse floral 
community sufficient to attract pollinators.
    These management activities would protect the physical or 
biological features for Wright's marsh thistle by providing for surface 
or subsurface water flow for permanent root saturation, soil alkalinity 
necessary for all life stages, the availability of direct sunlight for 
plant development, and habitat for pollinators to complete cross 
pollination of the thistle. Additionally, management of critical 
habitat lands would help limit the impacts of current risks to 
population viability.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific and commercial data available to designate critical habitat. 
In accordance with the Act and our implementing regulations at 50 CFR 
424.12(b), we review available information pertaining to the habitat 
requirements of the species and identify specific areas within the 
geographical area occupied by the species at the time of listing and 
any specific areas outside the geographical area occupied by the 
species to be considered for designation as critical habitat. We are 
not currently proposing to designate any areas outside the geographical 
area occupied by the species because we did not find any areas that 
were essential for the conservation of the species.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
SSA report and information developed during the listing process for the 
species. Additional information sources may include any generalized 
conservation strategy, criteria, or outline that may have been 
developed for the species; articles in peer-reviewed journals; 
conservation plans developed by States and counties; scientific status 
surveys and studies; biological assessments; other unpublished 
materials; or experts' opinions or personal knowledge. In this case, we 
used existing occurrence data for Wright's marsh thistle and 
information on the habitat and ecosystems upon which the species 
depends. These sources of information included, but were not limited 
to:
    (1) Data used to prepare the species status assessment and this 
proposed rule to list the species;
    (2) Information from biological surveys;
    (3) Various agency reports and databases;
    (4) Information from the U.S. Forest Service and other cooperators;
    (5) Information from species experts;
    (6) Data and information presented in academic research theses; and
    (7) Regional Geographic Information System (GIS) data (such as 
species occurrence data, land use, topography, aerial imagery, soil 
data, wetland data, and land ownership maps) for area calculations and 
mapping.

Areas Occupied at the Time of Listing

    The proposed critical habitat designation includes currently 
occupied sites within the species' historical range that have retained 
the necessary physical and biological features that will allow for the 
maintenance and expansion of existing populations. Wright's marsh 
thistle was historically known to occur in an additional site in 
Arizona (Sivinski 2012, p. 2). The single location in Arizona was 
collected in 1851 from San Bernardino Cienega, which straddles the 
international border with Mexico; the location no longer has suitable 
wetland habitat on the Arizona side of the line (Baker 2011, p. 7), and 
we do not consider the site essential for the conservation of the 
thistle because of the lack of suitable habitat and very low 
restoration potential. Ten historical occurrences occurred in New 
Mexico, but in a recent search effort at one of the sites (Lake 
County), the thistle was not found (Sivinski 2011, p. 40) and the 
habitat was found to be converted to an impervious surface. Another of 
the 10 records (Rattlesnake Springs, Eddy County) is now thought to be 
a hybrid between Wright's marsh thistle and Texas thistle (C. texanum) 
(NMRPTC 2009, p. 2), and the site where it was recorded is now a golf 
course. We do not consider either of these two sites in New Mexico to 
be essential for the conservation of the thistle, because the species 
is no longer present, the habitat is no longer available, or the 
species was misidentified. However, the remaining eight locations in 
New Mexico meet the definition of areas occupied by the thistle at the 
time of listing; they are: Santa Rosa, Guadalupe County; Bitter Lake 
NWR, Chaves County; Blue Spring, Eddy County; La Luz Canyon, Karr/
Haynes Canyon, Silver Springs, and Tularosa Creek, Otero County; and 
Alamosa Creek, Socorro County.
    In summary, for areas within the geographic area occupied by the 
species at the time of listing, we delineated critical habitat unit 
boundaries using the following process:
    (1) We obtained point observations of all currently occupied areas;

[[Page 61477]]

    (2) We drew minimum convex polygons around the point observations; 
and
    (3) We expanded the polygons to include all adjacent areas 
containing the essential physical and biological features (specifically 
the wetted area/moist soil outside of highly vegetated locations) to 
support life-history processes essential to the conservation of the 
species.
    When determining proposed critical habitat boundaries, we made 
every effort to avoid including developed areas such as lands covered 
by buildings, pavement, and other structures because such lands lack 
physical or biological features necessary for Wright's marsh thistle. 
The scale of the maps we prepared under the parameters for publication 
within the Code of Federal Regulations may not reflect the exclusion of 
such developed lands. Any such lands inadvertently left inside critical 
habitat boundaries shown on the maps of this proposed rule have been 
excluded by text in the proposed rule and are not proposed for 
designation as critical habitat. Therefore, if the critical habitat is 
finalized as proposed, a Federal action involving these lands would not 
trigger section 7 consultation with respect to critical habitat and the 
requirement of no adverse modification unless the specific action would 
affect the physical or biological features in the adjacent critical 
habitat.
    We propose for designation as critical habitat lands that we have 
determined are occupied at the time of listing and contain one or more 
of the physical or biological features that are essential to support 
life-history processes of the species. We are not proposing to 
designate any areas that are not currently occupied by the species.
    Eight units and 13 subunits are proposed for designation based on 
one or more of the physical or biological features being present to 
support Wright's marsh thistle's life-history processes. All eight 
units contain all of the identified physical or biological features and 
support multiple life-history processes. Some subunits contain only 
some of the physical or biological features necessary to support 
Wright's marsh thistle's particular use of that habitat.
    The proposed critical habitat designation is defined by the map or 
maps, as modified by any accompanying regulatory text, presented at the 
end of this document under Proposed Regulation Promulgation. We include 
more detailed information on the boundaries of the critical habitat 
designation in the preamble of this document. We will make the 
coordinates or plot points or both on which each map is based available 
to the public on http://www.regulations.gov at Docket No. FWS-R2-ES-
2018-0071 and on the New Mexico Ecological Services' website at https://www.fws.gov/southwest/es/NewMexico/index.cfm.

Proposed Critical Habitat Designation

    We propose to designate 64.3 ha (159 ac) in 8 units and 13 subunits 
as critical habitat for Wright's marsh thistle. The critical habitat 
areas we describe below constitute our current best assessment of areas 
that meet the definition of critical habitat for the species. Table 3 
provides the approximate area of each proposed critical habitat unit. 
Table 4 breaks down the approximate percentage and size of the total 
critical habitat designation by ownership type. Table 5 provides 
currently listed species with occupied habitat on, and designated 
critical habitat that overlaps with, proposed critical habitat for 
Wright's marsh thistle. Species with existing critical habitat that 
overlaps with proposed critical habitat for Wright's marsh thistle 
include the Koster's springsnail (Juturnia kosteri), Noel's amphipod 
(Gammarus desperatus), Roswell springsnail (Pyrgulopsis roswellensis), 
Pecos sunflower (Helianthus paradoxus), and the New Mexico meadow 
jumping mouse (Zapus hudsonius luteus). Other listed species in the 
boundaries of proposed critical habitat include the Alamosa springsnail 
(Tryonia alamosae), Chiricahua leopard frog (Lithobates 
chiricahuensis), least tern (Sterna antillarum), and Pecos gambusia 
(Gambusia nobilis). Three other listed species (or their critical 
habitat) that are found in close proximity (<1609 m (1 mi)) to proposed 
critical habitat for Wright's marsh thistle include the pecos pupfish 
(Cyprinodon pecosensis), the Sacramento prickly poppy (Argemone 
pinnatisecta), and the Sacramento Mountains thistle.

                       Table 3--Proposed Critical Habitat Units for Wright's Marsh Thistle
----------------------------------------------------------------------------------------------------------------
        Unit No. and name          Subunit No. and name       Ownership                      Area
----------------------------------------------------------------------------------------------------------------
1--Santa Rosa....................  1a--Blue Hole         City of Santa Rosa.  0.93 ha (2.3 ac).
                                    Hatchery.
                                   1b--Blue Hole Road    State..............  0.45 ha (1.1 ac).
                                    South.
                                   1c--State Highway 91  State..............  12.2 ha (30.1 ac).
                                    North.
                                   1d--Santa Rosa        City of Santa Rosa.  0.97 ha (2.4 ac).
                                    Ballpark South.
                                   1e--State Highway 91  City of Santa Rosa.  5.9 ha (14.6 ac).
                                    South.               Private............  0.78 ha (1.92 ac).
                                   1f--Perch Lake......  City of Santa Rosa.  1.9 ha (4.6 ac).
                                   1g--Sheehan Trust...  Private............  2.4 ha (6.0 ac).
                                   1h--Freeman Property  City of Santa Rosa.  0.18 ha (0.44 ac).
                                                         Private............  0.91 ha (2.24 ac).
2--Alamosa Springs...............  ....................  Private............  1.58 ha (3.9 ac).
3--Bitter Lake...................  3a--NWR Unit 5......  U.S. Fish and        3.16 ha (7.8 ac).
                                                          Wildlife Service.
                                   3b--NWR Unit 6......  U.S. Fish and        15.9 ha (39.2 ac).
                                                          Wildlife Service.
4--Tularosa Creek................  ....................  Tribal.............  0.65 ha (1.6 ac).
5--La Luz Canyon.................  ....................  U.S. Forest Service  0.01 ha (0.03 ac).
6--Silver Springs................  ....................  U.S. Forest Service  0.38 ha (0.95 ac).
                                                         Tribal.............  0.23 ha (0.58 ac).
7--Karr/Haynes Canyon............  7a--Haynes Canyon     Private............  0.008 ha (0.02 ac).
                                    Road.
                                   7b--Karr Canyon Road  Private............  0.73 ha (1.8 ac).
                                   7c--Raven Road......  Private............  1.05 ha (2.6 ac).
8--Blue Springs..................  ....................  Private............  14.04 ha (34.7 ac).
----------------------------------------------------------------------------------------------------------------
Note: Area estimates reflect all land within critical habitat unit boundaries, and estimates may not sum due to
  rounding.


[[Page 61478]]


   Table 4--Approximate Percentage and Size of Total Proposed Critical Habitat Designation for Wright's Marsh
                                           Thistle per Ownership Type
----------------------------------------------------------------------------------------------------------------
                                                  Percent  of
                Ownership type                       total                     Size of designation
                                                  designation
----------------------------------------------------------------------------------------------------------------
Private.......................................            33.5  21.5 ha (53.13 ac).
Federal.......................................              30  19.45 ha (48 ac).
State.........................................            19.7  12.65 ha (31.26 ac).
City..........................................            15.4  9.88 ha (24.4 ac).
Tribal........................................           0.004  0.65 ha (1.6 ac).
----------------------------------------------------------------------------------------------------------------


   Table 5--Wright's Marsh Thistle Proposed Critical Habitat Units and Co-occurring Listed Species or Existing
                                                Critical Habitat
----------------------------------------------------------------------------------------------------------------
                                                                                          Existing designated
                                                              Co-occurring listed        critical habitat  for
        Unit No. and name          Subunit No. and name       species (ha (ac) of      other listed species (ha
                                                             overlapping occupied         (ac) of overlapping
                                                                   habitat)                critical habitat)
----------------------------------------------------------------------------------------------------------------
1--Santa Rosa...................  1a--Blue Hole Hatchery  Pecos sunflower (0.42 ha    Pecos sunflower (0.93 ha
                                                           (1.0 ac)).                  (2.3 ac)).
                                  1b--Blue Hole Road      n/a.......................  Pecos sunflower (0.45 ha
                                   South.                                              (1.0 ac)).
                                  1c--State Highway 91    Pecos sunflower (0.15 ha    Pecos sunflower (12.2 ha
                                   North.                  (0.4 ac)).                  (30.0 ac)).
                                  1d--Santa Rosa          n/a.......................  n/a.
                                   Ballpark South.
                                  1e--State Highway 91    Pecos sunflower (0.15 ha    n/a.
                                   South.                  (.04 ac)).
                                  1f--Perch Lake........  Pecos sunflower (0.03 ha    n/a.
                                                           (.07 ac)).
                                  1g--Sheehan Trust.....  n/a.......................  n/a.
                                  1h--Freeman Property..  n/a.......................  n/a.
2--Alamosa Springs..............  ......................  Alamosa springsnail (1.58   n/a.
                                                           ha (3.9 ac)); Chiricahua
                                                           leopard frog (1.58 ha
                                                           (3.9 ac)).
3--Bitter Lake..................  3a--NWR Unit 5........  Least tern (0.98 ha (2.4    Pecos sunflower (3.16 ha
                                                           ac)); (Koster's             (7.8 ac)).
                                                           springsnail,* Noel's
                                                           amphipod,* Pecos
                                                           gambusia,* Pecos
                                                           pupfish,* Roswell
                                                           springsnail *).
                                  3b--NWR Unit 6........  Koster's springsnail (2.4   Koster's springsnail (2.4
                                                           ha (5.9 ac)); Least tern    ha (5.9 ac)); Pecos
                                                           (2.8 ha (6.9 ac));          sunflower (15.9 ha (39.3
                                                           Roswell springsnail (2.4    ac)); Roswell springsnail
                                                           ha 5.9 ac)); Noel's         (2.4 ha (5.9 ac)); Noel's
                                                           amphipod (2.4 ha (5.9       amphipod (2.4 ha (5.9
                                                           ac)); (Pecos gambusia,*     ac)).
                                                           Pecos pupfish *).
4--Tularosa Creek...............  ......................  n/a.......................  na.
5--La Luz Canyon................  ......................  (Sacramento prickly poppy   n/a.
                                                           *).
6--Silver Springs...............  ......................  New Mexico meadow jumping   New Mexico meadow jumping
                                                           mouse (0.38 ha (0.9 ac));   mouse (0.38 ha (0.9 ac)).
                                                           (Sacramento Mountains
                                                           thistle *).
7--Karr/Haynes Canyon...........  7a--Haynes Canyon Road  n/a.......................  n/a.
                                  7b--Karr Canyon Road..  n/a.......................  n/a.
                                  7c--Raven Road........  n/a.......................  n/a.
8--Blue Springs.................  ......................  Pecos gambusia (11.7 ha     n/a.
                                                           (28.9 ac)).
----------------------------------------------------------------------------------------------------------------
* Species and/or critical habitat found in close proximity (<1,609 m (1 mi)) critical habitat unit, but not
  overlapping exactly.

    We present brief descriptions of all units below and reasons why 
they meet the definition of critical habitat for Wright's marsh 
thistle, below.

Unit 1: Santa Rosa

    Unit 1 consists of eight subunits comprising 26.6 ha (65.7 ac) in 
Guadalupe County, New Mexico. This unit consists of land owned by the 
City of Santa Rosa, the State of New Mexico, and private landowners. 
This unit partially overlaps with occupied habitat and designated 
critical habitat for the federally threatened Pecos sunflower.
Subunit 1a: Blue Hole Hatchery
    Subunit 1a consists of 11 small land parcels comprising 0.93 ha 
(2.3 ac) in Guadalupe County, New Mexico. This subunit lies north of 
Blue Hole Road on City of Santa Rosa property at the abandoned Blue 
Hole Hatchery. Special management considerations or protection may be 
required in Subunit 1a to address ground and surface water depletion, 
as well as native and nonnative plant invasion. Such special management 
or protection may include conservation efforts to ensure water 
availability, along with decreasing competition with native and 
nonnative plants via prescribed burning and mechanical treatments, if 
necessary. Special management or protection may also include watershed/
wetland restoration efforts.
Subunit 1b: Blue Hole Road South
    Subunit 1b consists of a small, 0.45-ha (1.1-ac) land parcel in 
Guadalupe County, New Mexico. This subunit lies south of Blue Hole Road 
and east of El Rito Creek on State of New Mexico land, which is an 
undeveloped portion of a wetland preserve. Special management 
considerations or protection may be required in Subunit 1b to address 
ground and surface water depletion, as well as native and nonnative 
invasion. Such special management or protection may include 
conservation efforts to ensure water availability, along with 
decreasing competition with native and nonnative plants via prescribed 
burning and mechanical treatments, if necessary. Special management or 
protection may also include watershed/wetland restoration efforts.
Subunit 1c: State Highway 91 North
    Subunit 1c consists of 12.2 ha (30.1 ac) in Guadalupe County, New 
Mexico. This subunit lies north of State Highway 91, near Subunit 1b on 
State of New Mexico land, which is an undeveloped portion of a wetland 
preserve. Special management considerations or protection may be 
required in Subunit 1c to address ground and surface water

[[Page 61479]]

depletion, as well as native and nonnative plant invasion. Such special 
management or protection may include conservation efforts to ensure 
water availability, along with decreasing competition with native and 
nonnative plants via prescribed burning and mechanical treatments, if 
necessary. Special management or protection may also include watershed/
wetland restoration efforts.
Subunit 1d: Santa Rosa Ballpark South
    Subunit 1d consists of two small land parcels comprising 0.97 ha 
(2.4 ac) in Guadalupe County, New Mexico. This subunit lies south of 
the City of Santa Rosa ballpark, on an undeveloped portion of City of 
Santa Rosa land. Special management considerations or protection may be 
required in Subunit 1d to address ground and surface water depletion, 
as well as native and nonnative invasion. Such special management or 
protection may include conservation efforts to ensure water 
availability, along with decreasing competition with native and 
nonnative plants via prescribed burning and mechanical treatments, if 
necessary. Special management or protection may also include watershed/
wetland restoration efforts. Other special management considerations or 
protection may be required to address localized stressors from 
herbicide use and mowing in recreational areas.
Subunit 1e: State Highway 91 South
    Subunit 1e consists of 6.7 ha (16.5 ac) in Guadalupe County, New 
Mexico. This subunit lies south of State Highway 91 on City of Santa 
Rosa and private lands. Special management considerations or protection 
may be required in Subunit 1e to address ground and surface water 
depletion, as well as native and nonnative plant invasion. Such special 
management or protection may include conservation efforts to ensure 
water availability, along with decreasing competition with native and 
nonnative plants via prescribed burning and mechanical treatments, if 
necessary. Special management or protection may also include watershed/
wetland restoration efforts.
Subunit 1f: Perch Lake
    Subunit 1f consists of 1.9 ha (4.6 ac) in Guadalupe County, New 
Mexico. This subunit includes most of the shores of Perch Lake on City 
of Santa Rosa property, extending south into an undeveloped area. 
Special management considerations or protection may be required in 
Subunit 1f to address ground and surface water depletion, as well as 
native and nonnative plant invasion. Such special management or 
protection may include conservation efforts to ensure water 
availability, along with decreasing competition with native and 
nonnative plants via prescribed burning and mechanical treatments, if 
necessary. Special management or protection may also include watershed/
wetland restoration efforts. Other special management considerations or 
protection may be required to address localized stressors from 
herbicide use and mowing in areas around Perch Lake, which is located 
inside the subunit.
Subunit 1g: Sheehan Trust
    Subunit 1g consists of 2.4 ha (6.0 ac) in Guadalupe County, New 
Mexico. This subunit lies east of River Road and the Pecos River on 
privately owned lands, which are currently held in a land trust. 
Special management considerations or protection may be required in 
Subunit 1g to address ground and surface water depletion, as well as 
native and nonnative plant invasion. Such special management or 
protection may include conservation efforts to ensure water 
availability, along with decreasing competition with native and 
nonnative plants via prescribed burning and mechanical treatments, if 
necessary. Special management or protection may also include watershed/
wetland restoration efforts. As this property was formerly grazed and 
may be grazed again in the future, special management or protection may 
be required to address impacts of livestock grazing as appropriate.
Subunit 1h: Freeman Property
    Subunit 1h consists of five small parcels of land comprising 1.09 
ha (2.68 ac) in Guadalupe County, New Mexico. This subunit lies west of 
Subunit 1g on City of Santa Rosa property and privately owned lands. 
Special management considerations or protection may be required in 
Subunit 1h to address ground and surface water depletion, as well as 
native and nonnative plant invasion. Such special management or 
protection may include conservation efforts to ensure water 
availability, along with decreasing competition with native and 
nonnative plants via prescribed burning and mechanical treatments, if 
necessary. Special management or protection may also include watershed/
wetland restoration efforts.

Unit 2: Alamosa Springs

    Unit 2 consists of 1.58 ha (3.9 ac) in Socorro County, New Mexico. 
This unit lies mostly north of Forest Road 140 along Alamosa Creek, on 
privately owned land. This unit entirely overlaps with occupied habitat 
for the federally endangered Alamosa springsnail and federally 
threatened Chiricahua leopard frog. Special management considerations 
or protection may be required in this unit to address ground and 
surface water depletion, water quality, soil alkalinity, and native and 
nonnative plant invasion. Such special management or protection may 
include conservation efforts to ensure water availability, to protect 
ground water and soil from contaminants during mining activities, and 
to decrease competition with native and nonnative plants via prescribed 
burning and mechanical treatments, if necessary. Special management or 
protection may also include watershed/wetland restoration efforts.

Unit 3: Bitter Lake

    Unit 3 consists of two subunits comprising 19.0 ha (47 ac) in 
Chaves County, New Mexico, on Bitter Lake National Wildlife Refuge 
(NWR). Unit 3 is entirely managed by the U.S. Fish and Wildlife 
Service. This unit overlaps with occupied habitat for the federally 
endangered Koster's springsnail, Noel's amphipod, Roswell springsnail, 
and least tern. The unit also overlaps with designated critical habitat 
for the Koster's springsnail, Noel's amphipod, Roswell springsnail, and 
Pecos sunflower.
Subunit 3a: NWR Unit 5
    Subunit 3a consists of 3.16 ha (7.8 ac) in Chaves County, New 
Mexico, within Wetland Management Unit 5 on Bitter Lake NWR. Special 
management considerations or protection may be required in Subunit 3a 
to address ground and surface water depletion, water quality, soil 
alkalinity, and native and nonnative plant invasion. Such special 
management or protection may include conservation efforts to ensure 
water availability, spill prevention and groundwater protection during 
oil and gas development, and decreasing competition with native and 
nonnative plants via prescribed burning and mechanical and herbicide 
treatments, if necessary. Special management or protection may also 
include watershed/wetland restoration efforts.
Subunit 3b: NWR Unit 6
    Subunit 3b consists of 15.9 ha (39.2 ac) in Chaves County, New 
Mexico, within Wetland Management Unit 6 on Bitter Lake NWR. Special 
management considerations or protection may be required in Subunit 3b 
to address

[[Page 61480]]

ground and surface water depletion, water quality, soil alkalinity, and 
native and nonnative plant invasion. Such special management or 
protection may include conservation efforts to ensure water 
availability, spill prevention and groundwater protection during oil 
and gas development, and decreasing competition with native and 
nonnative plants via prescribed burning and mechanical and herbicide 
treatments, if necessary. Special management or protection may also 
include watershed/wetland restoration efforts.

Unit 4: Tularosa Creek

    Unit 4 consists of 0.65 ha (1.6 ac) in Otero County, New Mexico. 
This unit lies along Indian Service Route 10, north of Tularosa Creek, 
on land owned by the Mescalero Apache Tribe. Special management 
considerations or protection may be required in this unit to address 
ground and surface water depletion, as well as native and nonnative 
plant invasion. Such special management or protection may include 
conservation efforts to ensure water availability, along with 
decreasing competition with native and nonnative plants via prescribed 
burning and mechanical treatments, if necessary. Special management or 
protection may also include watershed/wetland restoration efforts.

Unit 5: La Luz Canyon

    Unit 5 consists of 0.01 ha (0.03 ac) in Otero County, New Mexico, 
on the Lincoln National Forest. This unit lies north of La Luz Canyon 
Road, along La Luz Creek, on lands managed by the U.S. Forest Service. 
Special management considerations or protection may be required in this 
unit to address ground and surface water depletion, as well as native 
and nonnative plant invasion. Such special management or protection may 
include conservation efforts to ensure water availability, along with 
decreasing competition with native and nonnative plants via prescribed 
burning and mechanical treatments, if necessary. Special management or 
protection may also include watershed/wetland restoration efforts. As 
this property has the potential to be grazed, special management or 
protection may be required to address impacts of livestock grazing as 
appropriate.

Unit 6: Silver Springs

    Unit 6 consists of 0.62 ha (1.53 ac) in Otero County, New Mexico. 
This unit lies east of State Highway 224, along Silver Springs Creek. 
This unit contains land on the Lincoln National Forest, which is 
managed by the U.S. Forest Service, and land owned by the Mescalero 
Apache Tribe. This unit overlaps with occupied habitat and critical 
habitat for the federally endangered New Mexico meadow jumping mouse. 
Special management considerations or protection may be required in this 
unit to address ground and surface water depletion, as well as native 
and nonnative plant invasion. Such special management or protection may 
include conservation efforts to ensure water availability, along with 
decreasing competition with native and nonnative plants via prescribed 
burning and mechanical treatments, if necessary. Special management or 
protection may also include watershed/wetland restoration efforts. As 
this property has the potential to be grazed, special management or 
protection may be required to address impacts of livestock grazing as 
appropriate.

Unit 7: Karr/Haynes Canyon

    Unit 7 consists of three subunits that comprise 1.79 ha (4.42 ac) 
in Otero County, New Mexico. This unit consists of privately owned 
lands.
Subunit 7a: Haynes Canyon Road
    Subunit 7a consists of 0.008 ha (0.02 ac) in Otero County, New 
Mexico. This subunit lies south of Haynes Canyon Road on privately 
owned lands. Special management considerations or protection may be 
required in Subunit 7a to address ground and surface water depletion, 
as well as native and nonnative plant invasion. Such special management 
or protection may include conservation efforts to ensure water 
availability, along with decreasing competition with native and 
nonnative plants via prescribed burning and mechanical treatments, if 
necessary. Special management or protection may also include watershed/
wetland restoration efforts. As this property has the potential to be 
grazed, special management or protection may be required to address 
impacts of livestock grazing as appropriate.
Subunit 7b: Karr Canyon Road
    Subunit 7b consists of two small parcels comprising 0.73 ha (1.8 
ac) in Otero County, New Mexico. This subunit lies along either side of 
Karr Canyon Road on privately owned lands. Special management 
considerations or protection may be required in Subunit 7b to address 
ground and surface water depletion, as well as native and nonnative 
plant invasion. Such special management or protection may include 
conservation efforts to ensure water availability, along with 
decreasing competition with native and nonnative plants via prescribed 
burning and mechanical treatments, if necessary. Special management or 
protection may also include watershed/wetland restoration efforts. As 
this property has the potential to be grazed, special management or 
protection may be required to address impacts of livestock grazing as 
appropriate.
Subunit 7c: Raven Road
    Subunit 7c consists of two small parcels comprising 1.05 ha (2.6 
ac) in Otero County, New Mexico. This subunit lies along either side of 
Raven Road on privately owned lands. Special management considerations 
or protection may be required in Subunit 7c to address ground and 
surface water depletion, as well as native and nonnative plant 
invasion. Such special management or protection may include 
conservation efforts to ensure water availability, along with 
decreasing competition with native and nonnative plants via prescribed 
burning and mechanical treatments, if necessary. Special management or 
protection may also include watershed/wetland restoration efforts. As 
this property has the potential to be grazed, special management or 
protection may be required to address impacts of livestock grazing as 
appropriate.

Unit 8: Blue Springs

    Unit 8 consists of 14.04 ha (34.7 ac) in Eddy County, New Mexico. 
This unit lies along a small tributary north of the Black River on 
privately owned land. This unit overlaps with occupied habitat for the 
federally endangered Pecos gambusia. Special management considerations 
or protection may be required in this unit to address ground and 
surface water depletion, water quality, soil alkalinity, and native and 
nonnative plant invasion. Such special management or protection may 
include conservation efforts to ensure water availability, spill 
prevention and groundwater protection during oil and gas development, 
and decreasing competition with native and nonnative plants via 
prescribed burning and mechanical treatments, if necessary. Special 
management or protection may also include watershed/wetland restoration 
efforts.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened

[[Page 61481]]

species or result in the destruction or adverse modification of 
designated critical habitat of such species. In addition, section 
7(a)(4) of the Act requires Federal agencies to confer with the Service 
on any agency action which is likely to jeopardize the continued 
existence of any species proposed to be listed under the Act or result 
in the destruction or adverse modification of proposed critical 
habitat.
    We published a final regulation with a revised definition of 
destruction or adverse modification on August 27, 2019 (84 FR 44976). 
Destruction or adverse modification means a direct or indirect 
alteration that appreciably diminishes the value of critical habitat as 
a whole for the conservation of a listed species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat--and actions 
on State, tribal, local, or private lands that are not federally 
funded, authorized, or carried out by a Federal agency--do not require 
section 7 consultation.
    Compliance with the requirements of section 7(a)(2) is documented 
through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Service Director's opinion, avoid the likelihood 
of jeopardizing the continued existence of the listed species and/or 
avoid the likelihood of destroying or adversely modifying critical 
habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
formal consultation on previously reviewed actions. These requirements 
apply when the Federal agency has retained discretionary involvement or 
control over the action (or the agency's discretionary involvement or 
control is authorized by law) and, subsequent to the previous 
consultation, we have listed a new species or designated critical 
habitat that may be affected by the Federal action, or the action has 
been modified in a manner that affects the species or critical habitat 
in a way not considered in the previous consultation. In such 
situations, Federal agencies sometimes may need to request reinitiation 
of consultation with us, but the regulations also specify some 
exceptions to the requirement to reinitiate consultation on specific 
land management plans after subsequently listing a new species or 
designating new critical habitat. See the regulations for a description 
of those exceptions.

Application of the ``Adverse Modification'' Standard

    The key factor related to the destruction or adverse modification 
determination is whether implementation of the proposed Federal action 
directly or indirectly alters the designated critical habitat in a way 
that appreciably diminishes the value of the critical habitat as a 
whole for the conservation of the listed species. As discussed above, 
the role of critical habitat is to support physical or biological 
features essential to the conservation of a listed species and provide 
for the conservation of the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may violate 7(a)(2) 
of the Act by destroying or adversely modifying such designation.
    Activities that the Services may, during a consultation under 
section 7(a)(2) of the Act, find are likely to destroy or adversely 
modify critical habitat include, but are not limited to:
    (1) Actions that would diminish permanent root saturation. Such 
activities could include, but are not limited to, water diversions and 
water withdrawals for agricultural, mineral mining, or urban purposes. 
These activities could reduce Wright's marsh thistle's water 
availability, and increase its competition for water resources, thereby 
depleting a resource necessary for the plant's normal growth and 
survival.
    (2) Actions that would alter the alkalinity of the soil. Such 
activities could include, but are not limited to, oil and gas 
development and mining. These activities could result in significant 
ground disturbance that could alter the chemical and physical 
properties of the soil.
    (3) Actions that would diminish the availability of full sunlight. 
Such activities could include, but are not limited to, vegetation 
management that encourages growth of competing native and nonnative 
species. These activities could lead to habitat encroachment resulting 
in a decreased availability of sunlight.
    (4) Actions that would decrease the diversity and abundance of 
floral resources and pollinators. Such activities could include, but 
are not limited to, the use of pesticides and herbicides, livestock 
grazing, and oil and gas development and mining. These activities could 
lead to direct mortality of pollinators and diminish the floral 
resources available to pollinators.

Exemptions

Application of Section 4(a)(3) of the Act

    Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 
provides that: ``The Secretary shall not designate as critical habitat 
any lands or other geographical areas owned or controlled by the 
Department of Defense (DoD), or designated for its use, that are 
subject to an integrated natural resources management plan (INRMP) 
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the 
Secretary determines in writing that such plan provides a benefit to 
the species for which critical habitat is proposed for designation.'' 
There are no DoD lands with a

[[Page 61482]]

completed INRMP within the proposed critical habitat designation.

Exclusions

Application of Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat if he determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless he determines, based 
on the best scientific data available, that the failure to designate 
such area as critical habitat will result in the extinction of the 
species. In making that determination, the statute on its face, as well 
as the legislative history, are clear that the Secretary has broad 
discretion regarding which factor(s) to use and how much weight to give 
to any factor.
    The first sentence in section 4(b)(2) of the Act requires that we 
take into consideration the economic, national security, or other 
relevant impacts of designating any particular area as critical 
habitat. We describe below the process that we undertook for taking 
into consideration each category of impacts and our analyses of the 
relevant impacts.

Consideration of Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. To assess the probable economic impacts of a 
designation, we must first evaluate specific land uses or activities 
and projects that may occur in the area of the critical habitat. We 
then must evaluate the impacts that a specific critical habitat 
designation may have on restricting or modifying specific land uses or 
activities for the benefit of the species and its habitat within the 
areas proposed. We then identify which conservation efforts may be the 
result of the species being listed under the Act versus those 
attributed solely to the designation of critical habitat for this 
particular species. The probable economic impact of a proposed critical 
habitat designation is analyzed by comparing scenarios both ``with 
critical habitat'' and ``without critical habitat.''
    The ``without critical habitat'' scenario represents the baseline 
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource 
users potentially affected by the designation of critical habitat 
(e.g., under the Federal listing as well as other Federal, State, and 
local regulations). The baseline, therefore, represents the costs of 
all efforts attributable to the listing of the species under the Act 
(i.e., conservation of the species and its habitat incurred regardless 
of whether critical habitat is designated). The ``with critical 
habitat'' scenario describes the incremental impacts associated 
specifically with the designation of critical habitat for the species. 
The incremental conservation efforts and associated impacts would not 
be expected without the designation of critical habitat for the 
species. In other words, the incremental costs are those attributable 
solely to the designation of critical habitat, above and beyond the 
baseline costs. These are the costs we use when evaluating the benefits 
of inclusion and exclusion of particular areas from the final 
designation of critical habitat should we choose to conduct a 
discretionary 4(b)(2) exclusion analysis.
    For this particular designation, we developed an incremental 
effects memorandum (IEM) considering the probable incremental economic 
impacts that may result from this proposed designation of critical 
habitat. The information contained in our IEM, along with the SSA, was 
then used to develop a screening analysis of the probable effects of 
the designation of critical habitat for Wright's marsh thistle 
(Industrial Economics, Inc. 2018). We began by conducting a screening 
analysis of the proposed designation of critical habitat in order to 
focus our analysis on the key factors that are likely to result in 
incremental economic impacts. The purpose of the screening analysis is 
to filter out the geographic areas in which the critical habitat 
designation is unlikely to result in probable incremental economic 
impacts. In particular, the screening analysis considers baseline costs 
(i.e., absent critical habitat designation) and includes probable 
economic impacts where land and water use may be subject to 
conservation plans, land management plans, best management practices, 
or regulations that would protect the habitat area as a result of the 
Federal listing status of the species. The screening analysis filters 
out particular areas of critical habitat that are already subject to 
such protections and are, therefore, unlikely to incur incremental 
economic impacts. Ultimately, the screening analysis allows us to focus 
our analysis on evaluating the specific areas or sectors that may incur 
probable incremental economic impacts as a result of the designation. 
The screening analysis also assesses whether units are unoccupied by 
the species and may require additional management or conservation 
efforts as a result of the critical habitat designation for the 
species, which may incur incremental economic impacts. This screening 
analysis, combined with the information contained in our IEM, is what 
we consider our draft economic analysis of the proposed critical 
habitat designation for Wright's marsh thistle and is summarized in the 
narrative below.
    Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to 
assess the costs and benefits of available regulatory alternatives in 
quantitative (to the extent feasible) and qualitative terms. Consistent 
with the E.O. regulatory analysis requirements, our effects analysis 
under the Act may take into consideration impacts to both directly and 
indirectly affected entities, where practicable and reasonable. If 
sufficient data are available, we assess to the extent practicable the 
probable impacts to both directly and indirectly affected entities. As 
part of our screening analysis, we considered the types of economic 
activities that are likely to occur within the areas likely affected by 
the critical habitat designation.
    In our evaluation of the probable incremental economic impacts that 
may result from the proposed designation of critical habitat for 
Wright's marsh thistle, first we identified, in the IEM dated March 2, 
2018, probable incremental economic impacts associated with the 
following categories of activities: (1) Water quantity/supply, (2) oil 
and gas development and mining, and (3) livestock grazing. We 
considered each industry or category individually. Additionally, we 
considered whether their activities have any Federal involvement. 
Critical habitat designation generally will not affect activities that 
do not have any Federal involvement; under the Act, designation of 
critical habitat only affects activities conducted, funded, permitted, 
or authorized by Federal agencies. If we finalize the listing of 
Wright's marsh thistle, in areas where the species is present, Federal 
agencies would already be required to consult with the Service under 
section 7 of the Act on activities they fund, permit, or implement that 
may affect the thistle. If we finalize this proposed critical habitat 
designation, consultations to avoid the destruction or adverse 
modification of critical habitat would be incorporated into the 
existing consultation process.

[[Page 61483]]

    In our IEM, we attempted to clarify the distinction between the 
effects that will result from the species being listed and those 
attributable to the critical habitat designation (i.e., difference 
between the jeopardy and adverse modification standards) for Wright's 
marsh thistle's critical habitat. Because the designation of critical 
habitat for Wright's marsh thistle is being proposed concurrently with 
the listing, it has been our experience that it is more difficult to 
discern which conservation efforts are attributable to the species 
being listed and those which will result solely from the designation of 
critical habitat. However, the following specific circumstances in this 
case help to inform our evaluation: (1) The essential physical or 
biological features identified for critical habitat are the same 
features essential for the life requisites of the species and (2) any 
actions that would result in sufficient harm or harassment to 
constitute jeopardy to Wright's marsh thistle would also likely 
adversely affect the essential physical or biological features of 
critical habitat. The IEM outlines our rationale concerning this 
limited distinction between baseline conservation efforts and 
incremental impacts of the designation of critical habitat for this 
species. This evaluation of the incremental effects has been used as 
the basis to evaluate the probable incremental economic impacts of this 
proposed designation of critical habitat.
    The Service is proposing to designate 64.3 ha (159 ac) across five 
New Mexico counties as critical habitat for Wright's marsh thistle. The 
Service has divided the proposed critical habitat into eight units, 
with some further divided into subunits. All eight units are considered 
occupied because they contain reproducing populations of the thistle. 
We are not proposing to designate any units of unoccupied habitat. 
Approximately 29 percent of the proposed designation is located on 
Federal lands, 20 percent is on State-owned lands, and 1 percent on 
land owned by the Mescalero Tribe. Fifteen percent of proposed lands 
are owned by the City of Santa Rosa, and 35 percent are privately 
owned. In these areas, any actions that may affect the species or its 
habitat would also affect designated critical habitat, and it is 
unlikely that any additional conservation efforts would be recommended 
to address the adverse modification standard over and above those 
recommended as necessary to avoid jeopardizing the continued existence 
of Wright's marsh thistle. Therefore, the potential incremental 
economic effects of the critical habitat designation are expected to be 
limited to administrative costs.
    The entities most likely to incur incremental costs are parties to 
section 7 consultations, including Federal action agencies and, in some 
cases, third parties, most frequently State agencies or municipalities. 
Our analysis of economic impacts makes the following assumptions about 
consultation activity over the next 10 years, most of which are more 
likely to overstate than understate potential impacts due to the 
history of biological assessments and implementation of project 
conservation measures by the action agencies. The analysis assumes that 
approximately five section 7 consultations will occur annually in the 
designated critical habitat, across all eight units, based on the 
previous consultation history in the area. Most of these are 
anticipated to occur in areas with Federal lands, including units 3, 5, 
and 6, as well as the large unit 1.
    This may overstate the number of consultations that will occur 
given available information on forecast activity. As stated above, we 
anticipate that conservation efforts needed to avoid adverse 
modification are likely to be the same as those needed to avoid impacts 
to the species itself. As such, costs of critical habitat designation 
for Wright's marsh thistle are anticipated to be limited to 
administrative costs. We anticipate that the incremental administrative 
costs of addressing adverse modification of critical habitat for the 
species in a section 7 consultation will be minor.
    The incremental administrative burden resulting from the 
designation of critical habitat for Wright's marsh thistle, based on 
the anticipated annual number of consultations and associated 
consultation costs, is not expected to exceed $25,000 in most years. 
The designation is unlikely to trigger additional requirements under 
State or local regulations. Furthermore, the designation is quite 
small, limited to 64.3 ha (159 ac) in total, with the local government, 
municipal, and private lands limited to 31.33 ha (77.4 ac); therefore, 
the designation is not expected to have significant perceptional 
effects. Because the designation is not expected to result in 
incremental conservation efforts for the species, the designation is 
also unlikely to measurably increase the probability that the species 
will be conserved, and benefits are also unlikely to exceed $25,000 in 
a given year. In our DEA, we did not identify any ongoing or future 
actions that would warrant additional recommendations or project 
modifications to avoid adversely modifying critical habitat above those 
we would recommend for avoiding jeopardy to the species, and we 
anticipate minimal change in management at Bitter Lake NWR and Lincoln 
National Forest due to the designation of critical habitat for Wright's 
marsh thistle.
    We are soliciting data and comments from the public on the DEA, as 
well as all aspects of the proposed rule and our required 
determinations. During the development of a final designation, we will 
consider any additional economic impact information we receive during 
the public comment period to determine whether any specific areas 
should be excluded from the final critical habitat designation under 
authority of section 4(b)(2) and our implementing regulations at 50 CFR 
424.19. In particular, we may exclude an area from critical habitat if 
we determine that the benefits of excluding the area outweigh the 
benefits of including the area, provided the exclusion will not result 
in the extinction of this species.

Consideration of National Security Impacts

    In preparing this proposal, we have determined that the lands 
within the proposed designation of critical habitat for Wright's marsh 
thistle are not owned, managed, or used by the DoD or Department of 
Homeland Security, and, therefore, we anticipate no impact on national 
security or homeland security. However, during the development of a 
final designation we will consider any additional information received 
through the public comment period on the impacts of the proposed 
designation on national security or homeland security to determine 
whether any specific areas should be excluded from the final critical 
habitat designation under authority of section 4(b)(2) and our 
implementing regulations at 50 CFR 424.19.

Consideration of Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors including whether there are 
permitted conservation plans covering the species in the area such as 
Habitat Conservation Plans, safe harbor agreements, or candidate 
conservation agreements with assurances, or whether there are non-
permitted conservation agreements and partnerships that would be 
encouraged by designation of, or exclusion from, critical habitat. In 
addition, we look at the existence of tribal conservation

[[Page 61484]]

plans and partnerships and consider the government-to-government 
relationship of the United States with tribal entities. We also 
consider any social impacts that might occur because of the 
designation.
    In preparing this proposal, we have determined that there are 
currently no permitted conservation plans or other management plans for 
Wright's marsh thistle. Only 0.88 ha (2.18 ac) of proposed critical 
habitat lands for Wright's marsh thistle belong to the Mescalero Apache 
Tribe; we have initiated coordination with the Tribe regarding the 
proposed critical habitat designation and will continue to offer 
government-to-government consultation with them throughout development 
of the final rulemaking. We anticipate no impact on tribal lands, 
partnerships, or permitted management plans from this proposed critical 
habitat designation. There are no adequate partnerships, Tribal 
partnerships, management, or protection afforded by cooperative 
management efforts sufficient to provide for the conservation of the 
species. There are no areas whose exclusion would result in 
conservation, or in the continuation, strengthening, or encouragement 
of partnerships.

Summary of Exclusions

    After analyzing these potential impacts, we are not considering any 
exclusions at this time from the proposed designation under section 
4(b)(2) of the Act based on economic impacts, national security 
impacts, or other relevant impacts such as partnerships, management, or 
protection afforded by cooperative management efforts. All areas 
proposed for critical habitat will benefit from additional regulation 
for the protection from destruction or adverse modification as a result 
of actions with a Federal nexus. All areas would see educational 
benefits of mapping essential habitat for recovery of the listed 
species. During the development of a final designation, we will 
consider any additional information received through the public comment 
period regarding other relevant impacts to determine whether any 
specific areas should be excluded from the final critical habitat 
designation under authority of section 4(b)(2) and our implementing 
regulations at 50 CFR 424.19.

Required Determinations

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

Regulatory Planning and Review--Executive Orders 12866 and 13563

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA has waived their review regarding 
their significance determination of this proposed rule.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

Regulatory Flexibility Act--5 U.S.C. 601 et seq.

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service-sector businesses with less than $5 million in 
annual sales, general and heavy construction businesses with less than 
$27.5 million in annual business, special trade contractors doing less 
than $11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    The Service's current understanding of the requirements under the 
RFA, as amended, and following recent court decisions, is that Federal 
agencies are only required to evaluate the potential incremental 
impacts of rulemaking on those entities directly regulated by the 
rulemaking itself and are, therefore, not required to evaluate the 
potential impacts to indirectly regulated entities. The regulatory 
mechanism through which critical habitat protections are realized is 
section 7 of the Act, which requires Federal agencies, in consultation 
with the Service, to ensure that any action authorized, funded, or 
carried out by the agency is not likely to destroy or adversely modify 
critical habitat. Therefore, under section 7, only Federal action 
agencies are directly subject to the specific regulatory requirement 
(avoiding destruction and adverse modification) imposed by critical 
habitat designation. Consequently, it is our position that only Federal 
action agencies will be

[[Page 61485]]

directly regulated by this designation. There is no requirement under 
RFA to evaluate the potential impacts to entities not directly 
regulated. Moreover, Federal agencies are not small entities. 
Therefore, because no small entities are directly regulated by this 
rulemaking, the Service certifies that, if made final, the proposed 
critical habitat designation will not have a significant economic 
impact on a substantial number of small entities.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. For the above reasons and based on currently 
available information, we certify that, if made final, the proposed 
critical habitat designation would not have a significant economic 
impact on a substantial number of small business entities. Therefore, 
an initial regulatory flexibility analysis is not required.

Reducing Regulation and Controlling Regulatory Costs--Executive Order 
13771

    We do not believe this proposed rule is an E.O. 13771 (``Reducing 
Regulation and Controlling Regulatory Costs'') (82 FR 9339, February 3, 
2017) regulatory action because we believe this rule is not significant 
under E.O. 12866; however, the Office of Information and Regulatory 
Affairs has waived their review regarding their E.O. 12866 significance 
determination of this proposed rule.

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. A significant energy action is one that promulgates, 
or is expected to lead to the promulgation of, a final rule that is 
both (1) a significant regulatory action under E.O. 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy, or a final rule that is designated by 
the Administrator of OIRA as a significant energy action. OIRA has 
determined that this rule is not significant. Further, in our economic 
analysis, we did not find that the designation of this proposed 
critical habitat will have an annual effect on the economy of $100 
million or more or significantly affect energy supplies, distribution, 
or use due to the lack of any energy supply or distribution lines 
within the proposed critical habitat designation. Therefore, this 
action is not a significant energy action, and no Statement of Energy 
Effects is required.

Unfunded Mandates Reform Act--2 U.S.C. 1501 et seq.

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This rule would not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) This rule may have a small perceptional effect on the City of 
Santa Rosa, New Mexico, due to the designation of critical habitat. In 
practice, small governments like Santa Rosa are affected by critical 
habitat only to the extent that any programs having Federal funds, 
permits, or other authorized activities must ensure that their actions 
will not adversely affect the critical habitat. Therefore, a Small 
Government Agency Plan is not required. However, we did notify the City 
of Santa Rosa of the proposed critical habitat with the publication of 
this proposed rule, and we invite their comments on the proposal with 
regard to any potential effects.

Takings--Executive Order 12630

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for Wright's marsh thistle in a takings implications 
assessment. The Act does not authorize the Service to regulate private 
actions on private lands or confiscate private property as a result of 
critical habitat designation. Designation of critical habitat does not 
affect land ownership, or establish any closures, or restrictions on 
use of or access to the designated areas. Furthermore, the designation 
of critical habitat does not affect landowner actions that do not 
require Federal funding or permits, nor does it preclude development of 
habitat conservation programs or issuance of incidental take permits to 
permit actions that do require Federal funding or permits to go 
forward. However, Federal agencies are prohibited from carrying out, 
funding, or authorizing actions that would destroy or adversely modify 
critical habitat. A takings implications assessment has been completed 
and concludes that, if adopted, this designation of critical habitat 
for Wright's marsh thistle would not pose significant takings 
implications for lands within or affected by the designation.

[[Page 61486]]

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this proposed rule does 
not have significant Federalism effects. A federalism summary impact 
statement is not required. In keeping with Department of the Interior 
and Department of Commerce policy, we requested information from, and 
coordinated development of this proposed critical habitat designation 
with, appropriate State resource agencies in New Mexico. From a 
federalism perspective, the designation of critical habitat directly 
affects only the responsibilities of Federal agencies. The Act imposes 
no other duties with respect to critical habitat, either for States and 
local governments, or for anyone else. As a result, the rule would not 
have substantial direct effects either on the States, or on the 
relationship between the national government and the States, or on the 
distribution of powers and responsibilities among the various levels of 
government. The designation may have some benefit to these governments 
because the areas that contain the features essential to the 
conservation of the species are more clearly defined, and the physical 
or biological features of the habitat necessary to the conservation of 
the species are specifically identified. This information does not 
alter where and what federally sponsored activities may occur.
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and that it meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We have proposed designating 
critical habitat in accordance with the provisions of the Act. To 
assist the public in understanding the habitat needs of the species, 
the rule identifies the elements of physical or biological features 
essential to the conservation of the species. The designated areas of 
critical habitat are presented on maps, and the rule provides several 
options for the interested public to obtain more detailed location 
information, if desired.

Paperwork Reduction Act of 1995--44 U.S.C. 3501 et seq.

    This rule does not contain information collection requirements, and 
a submission to the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not 
required. We may not conduct or sponsor and you are not required to 
respond to a collection of information unless it displays a currently 
valid OMB control number.

National Environmental Policy Act--42 U.S.C. 4321 et seq.

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating 
critical habitat under the Act. We published a notice outlining our 
reasons for this determination in the Federal Register on October 25, 
1983 (48 FR 49244). This position was upheld by the U.S. Court of 
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). However, when the 
range of the species includes States within the Tenth Circuit, such as 
that of the Wright's marsh thistle, under the Tenth Circuit ruling in 
Catron County Board of Commissioners v. U.S. Fish and Wildlife Service, 
75 F.3d 1429 (10th Cir. 1996), we undertake a NEPA analysis for 
critical habitat designation. We invite the public to comment on the 
extent to which this proposed regulation may have a significant impact 
on the human environment, or fall within one of the categorical 
exclusions for actions that have no individual or cumulative effect on 
the quality of the human environment. We will complete our analysis, in 
compliance with NEPA, before finalizing this proposed 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), Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial 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.
    There are tribal lands included in the proposed designation of 
critical habitat for Wright's marsh thistle. Using the criteria 
described above under Criteria Used To Identify Critical Habitat, we 
have determined that some tribal lands that are occupied by the species 
contain the features essential for the conservation the species. Only 
0.88 ha (2.18 ac) of proposed critical habitat lands belong to the 
Mescalero Apache Tribe. We have begun government-to-government 
consultation with the Tribe, and we will continue to consult with the 
Tribe throughout the public comment period on this proposed rule and 
during development of the final designation of critical habitat for the 
species. We will consider Tribal lands for exclusion from the final 
critical habitat designation to the extent consistent with the 
requirements of 4(b)(2) of the Act. The Mescalero Apache Tribe is the 
main tribe whose lands and trust resources may be affected by this 
proposed rule. There may be some other tribes with trust resources in 
the area but we have no specific documentation of this. We sent a 
notification letter to the Mescalero Apache Tribe on April 6, 2014, 
describing the exclusion process under section 4(b)(2) of the Act, and 
we have engaged in conversations with the Tribe about the proposal to 
the extent possible without disclosing predecisional information via 
requests for additional information in September 2016 and January 2018. 
We will attempt to schedule a meeting with the Tribe, as well as other 
interested parties, shortly after publication of this proposed rule so 
that we can give them as much time as possible to comment.

References Cited

    A complete list of references cited in this proposed rule is 
available on the internet at http://www.regulations.gov and upon 
request from the New Mexico Ecological Services Field Office (see For 
Further Information Contact).

[[Page 61487]]

Authors

    The primary authors of this proposed rule are the staff members of 
the New Mexico Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

    Authority:  16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, 
unless otherwise noted.

0
2. Amend Sec.  17.12(h) by adding an entry for ``Cirsium wrightii'' to 
the List of Endangered and Threatened Plants in alphabetical order 
under FLOWERING PLANTS to read as set forth below:


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
         Scientific name              Common name        Where listed         Status         applicable rules
----------------------------------------------------------------------------------------------------------------
        Flowering Plants
 
                                                  * * * * * * *
Cirsium wrightii................  Wright's marsh      Wherever found....  T              [Federal Register
                                   thistle.                                               citation when
                                                                                          published as a final
                                                                                          rule]; 50 CFR
                                                                                          17.73(a);\4d\ 50 CFR
                                                                                          17.96(a).\CH\
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. Add Sec.  17.73 to read as follows:


Sec.  17.73  Special rules--flowering plants.

    (a) Cirsium wrightii (Wright's marsh thistle).
    (1) Prohibitions. The following prohibitions apply to the Wright's 
marsh thistle except as provided under paragraph (a)(2) of this 
section:
    (i) Remove and reduce to possession from areas under Federal 
jurisdiction, as set forth at Sec.  17.61(c)(1) for endangered plants.
    (ii) Maliciously damage or destroy the species on any areas under 
Federal jurisdiction, or remove, cut, dig up, or damage or destroy the 
species on any other area in knowing violation of any State law or 
regulation or in the course of any violation of a State criminal 
trespass law, as set forth at section 9(a)(2)(B) of the Act.
    (2) Exceptions from prohibitions. The following exceptions from 
prohibitions apply to the Wright's marsh thistle:
    (i) The prohibitions described in paragraph (a)(1) of this section 
do not apply to activities conducted as authorized by a permit issued 
in accordance with the provisions set forth at Sec.  17.72.
    (ii) Any employee or agent of the Service or of a State 
conservation agency that is operating a conservation program pursuant 
to the terms of a cooperative agreement with the Service in accordance 
with section 6(c) of the Act, who is designated by that agency for such 
purposes, may, when acting in the course of official duties, remove and 
reduce to possession from areas under Federal jurisdiction members of 
the Wright's marsh thistle that are covered by an approved cooperative 
agreement to carry out conservation programs.
    (b) [Reserved]
0
4. In Sec.  17.96, amend paragraph (a) by adding an entry for ``Cirsium 
wrightii (Wright's marsh thistle)'' in alphabetical order under Family 
Asteraceae to read as follows:


Sec.  17.96   Critical habitat--plants.

    (a) Flowering plants.
* * * * *

Family Asteraceae: Cirsium wrightii (Wright's marsh thistle)

    (1) Critical habitat units are depicted for Chavez, Eddy, 
Guadalupe, Otero, and Socorro Counties, New Mexico, on the maps in this 
entry.
    (2) Within these areas, the physical or biological features 
essential to the conservation of Wright's marsh thistle consist of the 
following components:
    (i) Water-saturated soils with surface or subsurface water flow 
that allows permanent root saturation and seed germination;
    (ii) Alkaline soils;
    (iii) Full sunlight; and
    (iv) Diverse floral communities to attract pollinators.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
the effective date of this rule.
    (4) Critical habitat map units. Data layers defining map units were 
created using the latest imagery available through Esri (https://www.esri.com/en-us/home). The actual source is DigitalGlobe and the 
year of the imagery was 2016. Critical habitat units were then mapped 
using ArcGIS ArcMap 10.4. All data are in North America Albers Equal 
Area Conic projection, Datum North American 1983. The maps in this 
entry, as modified by any accompanying regulatory text, establish the 
boundaries of the critical habitat designation. The coordinates or plot 
points or both on which each map is based are available to the public 
at the Service's internet site at https://www.fws.gov/southwest/es/NewMexico/index.cfm, at http://www.regulations.gov under Docket No. 
FWS-R2-ES-2018-0071, and at the field office responsible for this 
designation. You may obtain field office location information by 
contacting one of the Service regional offices, the addresses of which 
are listed at 50 CFR 2.2.
    (5) Note: Index map follows:
BILLING CODE 4333-15-P

[[Page 61488]]

[GRAPHIC] [TIFF OMITTED] TP29SE20.063

    (6) Unit 1: Santa Rosa, Guadalupe County, New Mexico.
    (i) General description: Unit 1 consists of 26.6 hectares (ha) 
(65.7 acres (ac)) in Guadalupe County, New Mexico, and is composed of 
lands in State (12.65 ha (31.2 ac)), City of Santa Rosa (9.88 ha (24.4 
ac)), and private (4.09 ha (10.16 ac)) ownership.
    (ii) Maps of Unit 1 follow:

[[Page 61489]]

[GRAPHIC] [TIFF OMITTED] TP29SE20.064


[[Page 61490]]


[GRAPHIC] [TIFF OMITTED] TP29SE20.065


[[Page 61491]]


[GRAPHIC] [TIFF OMITTED] TP29SE20.066

    (7) Unit 2: Alamosa Springs, Socorro County, New Mexico.
    (i) General description: Unit 2 consists of 1.58 ha (3.9 ac) in 
Socorro County, New Mexico, and is composed of lands in private 
ownership.
    (ii) Map of Unit 2 follows:

[[Page 61492]]

[GRAPHIC] [TIFF OMITTED] TP29SE20.067

    (8) Unit 3: Bitter Lake, Chaves County, New Mexico.
    (i) General description: Unit 3 consists of 19.0 ha (47.0 ac) in 
Chaves County, New Mexico, and is composed of lands under Federal 
management, specifically the U.S. Fish and Wildlife Service's Bitter 
Lake National Wildlife Refuge.
    (ii) Map of Unit 3 follows:

[[Page 61493]]

[GRAPHIC] [TIFF OMITTED] TP29SE20.068

    (9) Unit 4: Tularosa Creek, Otero County, New Mexico.
    (i) General description: Unit 4 consists of 0.65 ha (1.6 ac) in 
Otero County, New Mexico, and is composed of lands in tribal ownership.
    (ii) Map of Unit 4 follows:

[[Page 61494]]

[GRAPHIC] [TIFF OMITTED] TP29SE20.069

    (10) Unit 5: La Luz Canyon, Otero County, New Mexico.
    (i) General description: Unit 5 consists of 0.01 ha (0.03 ac) in 
Otero County, New Mexico, and is composed of lands under Federal 
management, specifically the U.S. Forest Service's Lincoln National 
Forest.
    (ii) Map of Unit 5 follows:

[[Page 61495]]

[GRAPHIC] [TIFF OMITTED] TP29SE20.070

    (11) Unit 6: Silver Springs, Otero County, New Mexico.
    (i) General description: Unit 6 consists of 0.62 ha (1.53 ac) in 
Otero County, New Mexico, and is composed of lands under Federal 
management (0.38 ha (0.95 ac)), specifically the U.S. Forest Service's 
Lincoln National Forest, and tribal ownership (0.23 ha (0.58 ac)).
    (ii) Map of Unit 6 follows:

[[Page 61496]]

[GRAPHIC] [TIFF OMITTED] TP29SE20.071

    (12) Unit 7: Karr/Haynes Canyon, Otero County, New Mexico.
    (i) General description: Unit 7 consists of 1.79 ha (4.42 ac) in 
Otero County, New Mexico, and is composed of lands in private 
ownership.
    (ii) Map of Unit 7 follows:

[[Page 61497]]

[GRAPHIC] [TIFF OMITTED] TP29SE20.072

    (13) Unit 8: Blue Springs, Eddy County, New Mexico.
    (i) General description: Unit 8 consists of 14.04 ha (34.7 ac) in 
Eddy County, New Mexico, and is composed of lands in private ownership.
    (ii) Map of Unit 8 follows:

[[Page 61498]]

[GRAPHIC] [TIFF OMITTED] TP29SE20.073

* * * * *

Aurelia Skipwith,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2020-19337 Filed 9-28-20; 8:45 am]
BILLING CODE 4333-15-C