Federal Register, Volume 88 Issue 79 (Tuesday, April 25, 2023)

[Federal Register Volume 88, Number 79 (Tuesday, April 25, 2023)]
[Rules and Regulations]
[Pages 25208-25249]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-08565]

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Vol. 88

Tuesday,

No. 79

April 25, 2023

Part III

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; Determination of
Threatened Status for Wright's Marsh Thistle With a Section 4(d) Rule
and Designation of Critical Habitat; Final Rule

Federal Register / Vol. 88, No. 79 / Tuesday, April 25, 2023 / Rules
and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2018-0071; FF09E21000 FXES1111090FEDR234]
RIN 1018-BC34

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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
threatened species status under the Endangered Species Act of 1973
(Act), as amended, for the Wright's marsh thistle (Cirsium wrightii), a
thistle species from New Mexico. We also designate critical habitat. In
total, approximately 156.8 acres (63.4 hectares) in Chaves, Eddy,
Guadalupe, Otero, and Socorro Counties, New Mexico, fall within the
boundaries of the critical habitat designation. This rule adds the
species to the List of Endangered and Threatened Wildlife. We also
finalize a rule under the authority of section 4(d) of the Act that
provides measures that are necessary and advisable to provide for the
conservation of this species.

DATES: This rule is effective May 25, 2023.

ADDRESSES: This final rule is available on the internet at http://www.regulations.gov in Docket No. FWS-R2-ES-2018-0071 and at the New
Mexico Ecological Services website at https://www.fws.gov/office/new-mexico-ecological-services. Comments and materials we received, as well
as supporting documentation we used in preparing this rule, are
available for public inspection in the docket on http://www.regulations.gov. For best results, do not copy and paste either
number; instead, type the docket number or RIN into the Search box
using hyphens. Then, click on the Search button.
For the critical habitat designation, the coordinates or plot
points or both from which the maps are generated are included in the
decision file and are available at http://www.regulations.gov at Docket
No. FWS-R2-ES-2018-0071.

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.
Individuals in the United States who are deaf, deafblind, hard of
hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services. Individuals
outside the United States should use the relay services offered within
their country to make international calls to the point-of-contact in
the United States.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule. Under the Act, if we determine that
a species is 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. To the maximum extent prudent and determinable,
we must designate critical habitat for any species that we determine to
be an endangered or threatened species under the Act. Listing a species
as an endangered or threatened species and designation of critical
habitat can only be completed by issuing a rule.
What this document does. This rule lists the Wright's marsh thistle
(Cirsium wrightii) as a threatened species with a 4(d) rule and
designates critical habitat for the species under the Endangered
Species Act. We are designating critical habitat for the species in 7
units totaling 63.4 hectares (ha) (156.8 acres (ac)) in Chaves, Eddy,
Guadalupe, Otero, and Socorro Counties in New Mexico.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined that Wright's marsh thistle
meets the definition of a threatened species primarily because of the
present or threatened destruction, modification, or curtailment of its
habitat or range (Factor A), and other natural and manmade factors
affecting its continued existence such as changes in water
availability, ungulate grazing, and oil and gas development, (Factor
E). The existing regulatory mechanisms are inadequate to address the
identified threats (Factor D). When listing a species as a threatened
species, section 4(d) of the Act allows us to issue regulations that
are necessary and advisable for the conservation of the species.
Furthermore, section 4(a)(3) of the Act requires the Secretary of
the Interior (Secretary) to designate critical habitat concurrently
with listing to the maximum extent prudent and determinable. Section
3(5)(A) of the Act defines critical habitat as (i) the specific areas
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. 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.

Previous Federal Actions

On September 29, 2020, we proposed to list the Wright's marsh
thistle as a threatened species under the Act, with a proposed 4(d)
rule and proposed designation of critical habitat (85 FR 61460). Please
refer to that proposed rule for a detailed description of previous
Federal actions concerning this species.

Summary of Changes From the Proposed Rule

Based on information provided during the comment period by the
public, Tribes, States, and peer reviewers, we made the following minor
changes to this final rule:
We updated species occurrence information and incorporated
new information related to three previously unknown population
locations;
We excluded approximately 0.88 ha (2.18 ac) of Mescalero
Apache land from critical habitat as identified in Table 5, Areas
excluded from Critical Habitat Designation by Critical Habitat Unit for
Wright's Marsh Thistle; and
We made several small, non-substantive revisions and
corrections throughout the document in response to comments, and per
editorial review.
Beyond those changes, this final listing rule, 4(d) rule, and
critical habitat designation are unchanged from

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what we proposed on September 29, 2020 (85 FR 61460).

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.
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 peer review of the SSA report.
The Service sent the SSA report to four independent peer reviewers with
expertise in Wright's marsh thistle biology, life history, habitat, and
range, and in the physical or biological features of its habitat. We
received responses from one peer reviewer who provided comments on the
SSA report that we integrated into the report, strengthening our
analysis. The purpose of peer review is to ensure that our listing
determinations, critical habitat designations, and 4(d) rules are based
on scientifically sound data, assumptions, and analyses. We also sent
the SSA report for review to 2 partners who have knowledge of the
species biology and threats.. The SSA report and other materials
relating to this rule can be found at http://www.regulations.gov under
Docket No. FWS-R2-ES-2018-0071.

I. Final Listing Determination

Background

We completed a comprehensive assessment of the biological status of
the Wright's marsh thistle and prepared a report of the assessment (SSA
report (USFWS 2017, entire)), which provides a thorough account of the
species' overall viability and risks to that viability. Please refer to
the SSA report as well as the September 29, 2020, proposed rule (85 FR
61460) for a full summary of species information. Both are available at
http://www.regulations.gov under Docket No. FWS-R2-ES-2018-0071. Below,
we summarize the key results and conclusions of the SSA report.
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 vivid pink flowers and dark green
foliage with taller 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.
Wright's marsh thistle was historically known to occur in Arizona,
New Mexico, and Texas in the United States, and Chihuahua and Sonora in
Mexico (Sivinski 2012, p. 2). Wright's marsh thistle has been
extirpated from all previously known locations in Arizona, two
historical locations in New Mexico, and was thought to be extirpated
from all known locations in Texas and Mexico. However, in 2018, a
reexamination of Texas herbarium specimens determined that two
specimens were collections of Wright's marsh thistle (Nesom 2018,
entire), with the most recent collection being from Presidio County,
Texas in 2003, and in 2019, a team rediscovered a population of
Wright's marsh thistle located on a private property in Chihuahua,
Mexico (Sanchez Escalante et. al. 2019, p. 9-10). In New Mexico, eight
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).

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

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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 future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as the
Service 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 documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent a decision by
the Service on whether the species should be listed as an endangered or
threatened species under the Act. It does, however, provide the
scientific basis that informs our regulatory decisions, which involve
the further application of standards within the Act and its
implementing regulations and policies. The following is a summary of
the key results and conclusions from the SSA report; the full SSA
report can be found at FWS-R2-ES-2018-0071 on http://www.regulations.gov.
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. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time. We use this information to inform our regulatory
decision.

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 assess Wright's marsh
thistle viability and the risks to that viability, we reviewed the
biological condition of the species and its resources, and the threats
that influence the species' current and future condition. Wright's
marsh thistle is a rare wetland species that grows in marshy habitats
with year-round, water-saturated soils, at elevations between 3,450 and
7,850 feet (ft.) (1,150 and 2,390 meters (m)) in elevation (Sivinski
1996, p. 1; 2005a, pp. 3-4). It is usually associated with alkaline
springs and seeps ranging from low desert up to ponderosa pine forest
(Sivinski 2005a, p. 3). Wright's marsh thistle is an obligate of seeps,
springs, and wetlands that have saturated soils with surface or
subsurface water flow (Sivinski 1996a; Service 1998; Worthington 2002a,
p. 2; NMRPTC 2009). Common associates include bulrush (Scirpus spp.),
beaked spikerush (Eleocharis rostellata), Pecos sunflower (Helianthus
paradoxus), rush (Juncus spp.), and cattail (Typha spp.) (Sivinski
1996a, pp. 2-5; Sivinski and Bleakly 2004, p. 2; Worthington 2002a, pp.
1-2).
Most of the areas occupied by Wright's marsh thistle are open
cien[eacute]ga or boggy margins of open water or along excavated
drains. A few Wright's marsh thistle occur in cattail stands, and many
occur in fairly open stands of common reed (Phragmites australis).
Surprisingly, several hundred Wright's marsh thistle rosettes were
found well within some very dense, tall stands of common reed in 2012
(Sivinski 2012, p. 33). Almost all of these were juvenile rosettes, and
it appears that maturation and flowering is suppressed by the shade in
dense patches of common reed (Sivinski 2012, p. 33). Therefore, we
infer that rosettes can survive without as much direct sunlight as
mature plants.
Sufficient pollinators are needed to complete cross pollination of
plants both within patches at each population and between
subpopulations in the Santa Rosa population. Many generalist
pollinators may visit Wright's marsh thistle (Sivinski 2017, pers.
comm.). The most common pollinators of Wright's marsh thistle are bees,
especially bumble bees (Bombus spp.) (Sivinski 2017, pers. comm.).
Bumble bees are strong fliers and may travel 1 mi (1.5 km) or more to
patches of Wright's marsh thistle (Osborne et al. 2008), and thus could
provide cross pollination and gene flow within the Santa Rosa
population. Thus, depending on life stage, Wright's marsh thistle needs
to have permanent root saturation; alkaline soils; full, direct, or
nearly full sunlight; and abundant pollinators, including bumble bees.
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,
pp. 3-13). Factors that influence those resource needs will determine
whether Wright's marsh

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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 variation in ecological
adaptability between the eastern and western populations of the
thistle, and possibly also 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. However, Wright's marsh thistle has likely lost genetic and
environmental diversity as populations have been reduced or extirpated,
and therefore 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 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 within each population location. 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).

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 (see Table 1, below). 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, pp. 39-56).
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, pp. 4-5; Sivinski 2005, pp. 3-4;
Sivinski 2012, pp. 29-33). 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). Drought, along with ground
and surface water depletion, serves 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 to continue in the future, increasing these
impacts to Wright's marsh thistle (NOAA 2014, unpaginated). 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 due to past and present land and water management practices
that deplete ground and surface water. For specific examples for each
population, please refer to chapter 4, section 1 of the SSA report
(USFWS 2017, pp. 39-56). All of the extant localities may be affected
by long-term drought, whereas four of the largest localities at Blue
Spring, Bitter Lake National Wildlife Refuge (NWR), Santa Rosa, and
Alamosa Creek have the potential to be further modified by ongoing and
future water management practices.
Drought--According to the United States Drought Monitor (U.S.
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. 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, these wet periods are extremely rare events
(Newton et al. 2012, p. 66), and drought has notably impacted the
area's groundwater tables (USFS 2008, p. 22). The seasonal distribution
of yearly precipitation in this mountain range can result in temporary
drought conditions and reduced water availability for some of the
area's Wright's marsh thistle localities.
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, 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

[[Page 25212]]

drought a less significant stressor to the populations (e.g., see Poff
et al. 2002, pp. 18-19).
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). Loss and degradation of habitat from water diversion or
draining of wetlands that historically supported Wright's marsh thistle
has been reported in Chaves, Otero, and Sierra Counties, New Mexico
(Sivinski 1994, pp. 1-2; 1996, p. 4; 2005, p. 1; 2006, p. 4). The
extent of ongoing and future water diversions is related to the extent
of urban and agricultural development within a given area. 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, pp.
39-56). The alteration and loss of Wright's marsh thistle habitat from
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, pp. 39-56).
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. Population
sizes have decreased in springs and wet valleys affected by drought in
at least three canyons of the Sacramento Mountains, New Mexico. Similar
water loss may affect other Wright's marsh thistle localities (USFWS
2017, p. 45). If changes in climate lead to future drought, additional
dewatering and reduction of habitat for the thistle may occur.
We obtained downscaled climate projections (as of 2018) for our
analysis of Wright's marsh thistle from the Climate Explorer program in
the U.S. Climate Resilience Toolkit (NOAA 2014, unpaginated). The
Climate Explorer is based on 32 models and produces a mean that 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 representative
concentration pathway (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 current locations of Wright's
marsh thistle 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 carbon dioxide (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, potentially impacting the
availability of water during times critical to the life-history
processes of Wright's marsh thistle (NOAA 2014, unpaginated).
Specific details on the effects of climate change are located in
chapter 4 of the SSA report (USFWS 2017, pp. 39-56). Projected
increases in temperature and increased variability in precipitation at
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 water
availability and withdrawals.
Summary of Decreased Water Availability--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
types of Wright's marsh thistle habitat 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 occurs at Wright's marsh thistle 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 (see 75 FR 67925; November 4, 2010). 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 federally threatened Sacramento Mountains
thistle (Cirsium vinaceum), which is also found in New Mexico and is
associated with habitats similar to those occupied by Wright's marsh
thistle (52 FR 22933; June 16, 1987), 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, pp. 49-50).
The 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, while spring and
early summer grazing probably reduces growth, survival, and
reproduction. Late summer and early

[[Page 25213]]

fall grazing are most severe, as flowering plants typically set seed at
this time; 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
negative effects to populations of Wright's marsh thistle. Increased
use of wet springs and marshes by livestock during drought conditions
constitutes a significant stressor to the thistle 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. Although 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.
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 increased occurrence of
the common reed in Wright's marsh thistle habitat is a current threat
to the species due to increased wildfire risk, competition, and changes
in hydrology (impacts on degree of soil saturation). The impact that
common reed causes as compared to other nonnative plant species,
especially when habitat is disturbed through burning or drying is
greater than other invasive species. The dense plant growth of the
common reed blocks sunlight to other plants growing in the immediate
area and occupies all available habitat (PCA 2005, p. 1). The impacts
from common reed 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 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). Because Wright's
marsh thistle populations are relatively small and isolated, the
impacts of native and nonnative plants could pose a significant
stressor to the thistle despite ongoing efforts for habitat restoration
at other locations (Bitter Lake NWR). Because Wright's marsh thistle
populations are relatively small and isolated, 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 negative 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
negative effects of this stressor.
Oil and Gas Development and Mining
Oil and gas development occur within and adjacent to (i.e., within
10 miles) some areas occupied by Wright's marsh thistle, including
Santa Rosa, Bitter Lake NWR, and Blue Spring (New Mexico State Lands
Office 2017, unpaginated; NMDGF 2007, pp. 18-19; NMDGF 2005, p. 35).
There are also mining activities adjacent to (i.e., within 5 miles)
other occupied 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, unpaginated; New Mexico State Lands Office
2017, unpaginated; Sivinski 2012, p. 9). As of July 8, 2021, 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 water quality
contamination.
Contamination from oil and gas development has been observed within
close proximity (i.e., within 16 kilometers (km) (10 miles (mi)) of
some Wright's marsh thistle localities (New Mexico State Lands Office
2017, unpaginated). While laws and regulations related to water quality
have reduced the risk of contamination in and near occupied locations
from oil and gas production, a spill that could impact these habitats
is still likely based on the high volume of oil and gas leases near the
locations.
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, while mining activities could alter or destroy habitat.
The largest habitat area occupied by Wright's marsh thistle 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

[[Page 25214]]

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.

Table 1--Stressors Impacting Each of the Eight Populations of Wright's Marsh Thistle
[USFWS 2017, pp. 39-56]
--------------------------------------------------------------------------------------------------------------------------------------------------------
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 at 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. Bitter Lake 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-meter (m) (200-foot (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. Furthermore, 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 States). Thus, the Federal protection
afforded to this plant by listing it as a threatened species will 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 19 NMAC
15.2 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.

Current Condition of Wright's Marsh Thistle

To determine the species' current condition, we ranked each
population based on six factors relating to population and habitat
variables: 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 (USFWS 2017 pp. 35-36). These criteria were used to determine an
overall condition for each of the eight extant populations for which we
had sufficient information. Three additional populations of Wright's
marsh thistle were identified during the public comment period;
however, due to insufficient information associated with these three
populations, we were unable to determine an overall condition. The
overall condition of a population refers to the estimated likelihood of
persistence over time.
We define a population in high overall condition to have a greater
than 90 percent likelihood of persistence over the next 25 years (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 next 25 years 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 next 25 years (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

[[Page 25215]]

next 25 years (75 to 100 percent likelihood of extirpation).
The best available information indicates that Wright's marsh
thistle is currently found at eight localities in New Mexico, as well
as three new potential localities (one in New Mexico, one in Texas, and
one in Mexico). We have very little information on these new
localities, as further explained under Summary of Comments and
Recommendations below; as a result, one potential new locality in New
Mexico (associated with a Natural Resources Conservation Service
conservation easement) and the other two potential localities in Texas
and Mexico did not weigh heavily into our analysis of the status of the
species because their presence has not been verified in terms of
populations size and habitat. We concluded that the plant has been
extirpated in Arizona and two locations in New Mexico. According to our
current condition rankings outlined in chapter 3 of the SSA report
(USFWS 2017, pp. 14-38), three of the eight extant populations in New
Mexico were determined to have moderate resiliency, two have low
resiliency, and three have very low resiliency and are at risk of
extirpation. Across its range, the thistle demonstrates genetic and
environmental diversity (representation) 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 area 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.

Future Scenarios Considered

As there are a range of possibilities regarding the intensity of
stressors acting on the populations (i.e., decreased water availability
to habitat, ungulate grazing, native and nonnative plants, oil and gas
development, and mining), 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, but we did combine the
various threat ratings to provide an overall population condition
rating using professional judgment. 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. With regard to climate change models, we used a high
to low emissions climate change scenarios from the 2017 U.S. Climate
Resilience Toolkit, which provides a range of projections for
temperature and precipitation through 2100 (NOAA 2014, unpaginated).
While the U.S. Climate Resilience Toolkit (which was accessed in 2017)
used older data, current IPCC reports project similar trends to the
climate models that we used in the SSA report (IPCC 2021, p. 14). 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. We can project availability of water resources
and effects from climate change (temperature and reduced precipitation)
beyond 50 years into the future. However, given our knowledge of the
species, their response to known threats, and the future trends of
these threats, we determined that 50 years was an appropriate timeframe
for our analysis. Our future scenarios were based on the aggregation of
all the threats considered, rather than individual threats. 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 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.

[[Page 25216]]

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, pp. 57-
100).

Table 2--Condition Ratings for Each of the Eight Populations of Wright's Marsh Thistle Under Four Possible Future Scenarios
[USFWS 2017, pp. 57-100]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Scenario 1:
Population Current condition continuing current Scenario 2: Scenario 3: major Scenario 4: severe effects
conditions optimistic 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.

Summary of Comments and Recommendations

As discussed in the Supporting Documents, above, we received
comments on the SSA report from one peer reviewer. We reviewed all
comments we received from the peer reviewer for substantive issues and
new information regarding Wright's marsh thistle and its critical
habitat. The peer reviewer suggested we expand our descriptions of how
condition scenarios were developed and how threats were assessed
against the population (e.g., at an individual population level or
based on the eastern and western portions of the populations). We
addressed their comments by providing clarifying information on how
each condition scenario was developed and how threats were assessed at
the population and range wide scales. The peer reviewer also provided
additional information and clarification on the species biology and
life history. Peer reviewer comments were incorporated into the final
SSA report making our scenario descriptions, analysis, and conclusions
stronger.
We requested written comments from the public on the September 29,
2020, proposed rule (85 FR 61460) during a 60-day comment period that
closed on November 30, 2020. We contacted appropriate Federal, State,
and Tribal agencies, scientific experts and organizations, and other
interested parties and invited them to comment on the proposal. We did
not receive any requests for a public hearing. Our summary responses to
the substantive comments we received on the September 29, 2020,
proposed rule, are provided below. Comments simply providing support
for, or opposition to, the proposed rule without any supporting
information were not considered to be substantive and we do not provide
a response. All substantive information provided during the comment
period has either been incorporated directly into this final
determination or is addressed below.

Comments From States

(1) Comment: Two States, New Mexico and Texas, commented that
Wright's marsh thistle was collected in Presidio County, Texas, in 2003
and verified in 2018 (Nesom 2018, entire) and historically occurred in
Pecos County, Texas. Per the comments, the Presidio County specimen was
originally misidentified as a more common species, and upon
reexamination the specimen was determined to be Wright's marsh thistle
Similarly, the Pecos County, Texas, specimen was collected in 1849 and
misidentified at the time of collection. Reexamination resulted in the
specimen being identified as Wright's marsh thistle based on the same
diagnostic morphology as the Presidio County specimen. Botanists from
New Mexico and Texas agree with these determinations for both
specimens.
Our Response: We updated the final rule to reflect the
identification of these two specimens from Texas, as they contribute to
the historical and current distribution of Wright's marsh thistle.
(2) Comment: The State of Texas commented that the population in
Presidio County, which we were not aware of at the time of proposed
listing and thus was not included in our proposed critical habitat
designation, should not be included in the final critical habitat
designation, because they claimed the population is rare but protected
from threats, and critical habitat designation could impede voluntary
conservation efforts.

[[Page 25217]]

Our Response: We did not include this site as critical habitat for
Wright's marsh thistle because we could not determine that this site
meet the definition of critical habitat. While this location is not a
new site (an herbarium specimen was collected in 2003), we were unaware
that Wright's marsh thistle had been found in Presidio County, Texas,
until we received this information about the rediscovery of the
herbarium specimen and the diagnostic analysis conducted. Based on our
review of the information provided, we incorporated the additional
occurrence information for Presidio County, Texas, into this final
rule. We were unable to verify the species information provided by the
commenter or assess the location against the criteria established for
designating critical habitat. Therefore, this location is not included
within our final critical habitat designation.
(3) Comment: The State of New Mexico commented that a population at
Rattlesnake Springs at Carlsbad Caverns National Monument previously
identified as a possible hybrid population was surveyed in 2012. No
Wright's marsh thistle plants were found at the site; only Texas
thistle (Cirsium texanum).
Our Response: The SSA report for Wright's marsh thistle noted that
the population at Rattlesnake Springs at Carlsbad Caverns was a hybrid
between Wright's marsh thistle and Texas thistle (USFWS 2017, p. 14).
The commenter did not provide us with any additional information such
as an official report, note, photograph, or herbarium documentation
that re-identifies this population as Texas thistle.
(4) Comment: The State of New Mexico noted that Wright's marsh
thistle was rediscovered in Mexico in 2018 in one of five locations
surveyed (Sanchez-Escalante et.al. 2019, pp. 7-10).
Our Response: The September 29, 2020, proposed rule (85 FR 61460)
used the best available data regarding Wright's marsh thistle
distribution and abundance, including the known historical and current
population locations available to us during the development of the
proposed rule. Based on this new information regarding rediscovery of
the species in Mexico, we updated this final rule to reflect the
identification of this location from Mexico, as it contributes to the
historical and current distribution of Wright's marsh thistle.
(5) Comment: The State of New Mexico stated that the proposed
critical habitat around the old fishponds in Santa Rosa, New Mexico
(Subunit 1a, Blue Hole Hatchery), is all but destroyed and will likely
be completely destroyed given current development plans by the City of
Santa Rosa. Hence, the commenter did not think the site could be
considered essential to the conservation of the species.
Our Response: We reviewed the available information pertaining to
the biological needs of the species and habitat characteristics where
this species is located at Blue Hole Hatchery (Subunit 1a) and found
that the site still remains occupied and retains the necessary physical
and biological features essential to the conservation of the species.
Additionally, although the area has been disturbed, it is likely that
Wright's marsh thistle seeds are persisting in the soils at the site,
creating a seed bank. Designation of critical habitat at this location
will help ensure that the remaining population and any associated seeds
present at this site are protected into the future. Additionally, in
areas that are occupied at the time of listing, critical habitat may be
designated in areas that contain the necessary physical and biological
features and may require special management or protection. The physical
and biological features in this unit may require special management
considerations to protect the species from impacts associated with
ground and surface water depletion, as well as native and nonnative
plant invasion. Special management or protection may include
implementing watershed/wetland restoration efforts. Because this site
is currently occupied and contains the physical and biological features
essential to the conservation of the species and which may require
special management considerations or protection, this location meets
the definition of critical habitat (see Criteria Used To Identify
Critical Habitat, below) and is included in this final designation.
(6) Comment: The State of New Mexico provided information
associated with a previously undocumented population on private lands
in New Mexico on the Redhawk Conservation Easement which was placed in
stewardship through the conservation easement program with the Natural
Resources Conservation Service (NRCS). The commenter recommended that
the Service designate this population, which contains several thousand
plants, as critical habitat.
Our Response: The Service reached out to NRCS and other individuals
with knowledge of this population of Wright's marsh thistle to request
information about the Redhawk Conservation Easement. To date, we have
been unable to verify that the Redhawk Conservation Easement contains a
population of Wright's marsh thistle and have not been able to assess
if the physical and biological features exist at this location.
Therefore, we made no changes to this final rule as a result of this
comment, and this potential location is not designated as critical
habitat in this rule. If we receive new information in the future as a
result of additional surveys, we will analyze such information in the
course of developing a recovery plan for the species or in 5-year
reviews of its status. If we determine that the new information
indicates that the area meets the Act's definition of critical habitat,
we may choose to revise our critical habitat designation for this
species following the Service's established processes for revising a
critical habitat designation.
(7) Comment: The State of New Mexico provided additional
information regarding Wright's marsh thistle population trends at two
cienegas in Santa Rosa, New Mexico. Specifically, the commenter noted
that, based on 3- to 5-year trend data from Blue Hole and Ballpark
cienegas, the trend appears to be declining despite extensive habitat
restoration efforts. The commenter suggested that we should adjust our
population condition ratings for the two cienegas in the Future
Scenario 1 from moderate to low.
Our Response: We relied on the best available data to develop the
condition ratings referenced by the commenter in Table 2 of the
September 29, 2020, proposed rule (85 FR 61460; see p. 61469). The four
scenarios incorporated the best available information on projections of
threat data up to 50 years into the future. We reviewed the information
provided by the commenter, but we did not make any changes to this
final rule as a result of the information because a relatively high
number of patches of Wright's marsh thistle continue to exist at this
location. After considering the information presented by the commenter,
we conclude that the underlying information relied on to establish this
condition rating is still accurate; however, the information provided
by the commenter, as well as any new information that may become
available to us, will be considered and analyzed in the course of
developing a recovery plan for the species, or in a future 5-year
review of its status.

Comments From the Public

(8) Comment: A commenter disagreed with our identification of
stressors. Specifically, they stated that although the September 29,
2020, proposed rule (85 FR 61460) identified stressors

[[Page 25218]]

including decreased water availability to habitat, ungulate grazing,
native and nonnative plants, and oil and gas development and mining,
the Service did not conduct enough research to make a determination of
which stressor or combination of stressors would lead to a reduction in
the size of sites.
Our Response: We are required, by the Act, to make our listing
determinations solely on the basis of the best commercial and
scientific information available at the time the proposed rule is
developed. The stressors identified in the September 29, 2020, proposed
rule (85 FR 61460) are those that were known to be currently impacting
the species when we published that proposal. While there may be other
stressors that affect Wright's marsh thistle, we lacked sufficient
information about those stressors and their effects to assess their
impacts on the species. The SSA report assesses how individual
stressors affect the species, as well as how stressors, in combination
with each other, may act cumulatively to affect the species. The
information upon which we based our rationale for including these
stressors as the primary threats to Wright's marsh thistle is cited
earlier in this final rule and more thoroughly discussed in chapter 4
of the SSA report (USFWS 2017, pp. 39-56).
(9) Comment: A commenter stated their opposition to the 4(d) rule
based on the fact that important water sources occur in the same
locations where Wright's marsh thistle is growing. Wildlife and
livestock use these waters for their survival, and some water sources
have official water rights registered in the respective counties. The
commenter stated that Federal agencies must be respectful of water
rights as private property rights and seek alternative resolutions with
all parties involved to sustain Wright's marsh thistle's survival.
Our Response: As stated in the proposed and this final 4(d) rule,
the prohibitions identified are limited to removing and reducing to
possession the species from areas under Federal jurisdiction;
maliciously damaging or destroying any such species on any such area;
or removing, cutting, digging up, or damaging or destroying any such
species on any other area in knowing violation of any law or regulation
of any State law or regulation or in the course of any violation of a
State criminal trespass law. Therefore, other than actions to the
species committed in knowing violation of any State law or regulation
or in the course of any violation of a State criminal trespass law,
water rights will not be affected by the implementation of this 4(d)
rule for Wright's marsh thistle. Also, in addition to the public
comment period provided for the September 29, 2020, proposed rule (85
FR 61460), we have engaged with Federal, Tribal, and State governments,
as well as nongovernmental organizations and the general public, by
soliciting review and comment on the SSA report. We will continue to
work with all interested parties, including private property owners, on
the conservation of Wright's marsh thistle into the future.
(10) Comment: A commenter stated the Service should list the
Wright's marsh thistle as endangered rather than threatened because of
the contraction in the species' range, reduction in genetic diversity,
lack of effective conservation measures, and widespread alterations of
waterways in the Southwest.
Our Response: Based on the SSA report (USFWS 2017, entire), which
characterizes the viability of the species now and into the future, we
found the species did not meet the Act's definition of an endangered
species. Currently, three Wright's marsh thistle populations have
moderate resiliency, the species exhibits population redundancy, and
there are two representative areas (east and west) that support genetic
and environmental diversity. Therefore, the species is not currently in
danger of extinction. Rather, the species meets the Act's definition of
a threatened species because of the stressors that are affecting
Wright's marsh thistle's long-term viability. No information we
received during the public comment period led us to change that status
determination. If we receive new information in the future, we will
analyze such information in the course of developing a recovery plan
for the species or in 5-year reviews of its status. If we determine
that the new information indicates that the species' status should be
changed from threatened to endangered, we would begin rulemaking to
reclassify the species.
(11) Comment: One commenter stated that we incorrectly set our
``foreseeable future'' at 25 years when we should have used 50 years,
as was analyzed in the SSA report.
Our Response: As discussed in the September 29, 2020, proposed rule
(85 FR 61460), we looked at a variety of timeframes, including 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, 25 years was the maximum time that the Service could reasonably
determine that future threats and the species' response to those
threats are likely. We note, however, that Wright's marsh thistle was
determined to be at risk of extinction in the 25-year timeframe and, as
the primary projected threats would not likely be reduced or
ameliorated past that point in time, the species would also be at risk
of extinction in the 50-year timeframe.
(12) Comment: One commenter stated that we should designate
additional critical habitat for Wright's marsh thistle, including in
Texas, in unoccupied portions of the historical range that have other
species of flowering plants that serve to attract pollinators and
provide patches between occupied habitat, and places that have no
confirmed historical occurrences of the Wright's marsh thistle but that
are known to have originally functioned as cienegas or other wetlands
and that can be restored as such. These sites would then be suitable
for reintroduction of the thistle. Another commenter requested that we
expand the designation of critical habitat to include historical
habitat in eastern Arizona, western parts of Texas, and Blue Springs
State Park in Florida.
Our Response: As required by section 4(b)(2) of the Act, we use the
best scientific data available to designate critical habitat. In
accordance with the Act and our implementing regulations at 50 CFR
424.12(b), we reviewed available information pertaining to the habitat
requirements of the species and identified specific areas within the
geographical area occupied by the species at the time of listing that
contain the physical and biological features essential to the
conservation of the species and may need special management or
protection. We did not identify any areas outside the geographical area
occupied by the species that are essential for Wright's marsh thistle
conservation. For our SSA, we analyzed the best available data
regarding Wright's marsh thistle distribution and abundance (including
the known historical and current population locations) and considered
the conservation needs of the species (USFWS 2017, pp. 14-28).
Additionally, for this final rule, we reviewed and considered new
information we received during the public comment period for the
proposed rule (85 FR 61460) published September 29, 2020, including
information on previously unknown Wright's marsh thistle occurrences in
eastern Arizona, western parts of Texas, and an alleged occurrence at
Blue Springs State Park in Florida. However, we found the information
provided on the Texas and Arizona occurrences was not sufficient

[[Page 25219]]

to substantiate that these sites meet the Act's definition of critical
habitat for this species. For the Texas occurrence, although the
specimen was first collected in 2003, we were unable to verify the
species presence based on the information provided by the commenter or
assess the location against the criteria established for designating
critical habitat. The historical locations in Arizona are areas that
are no longer occupied by the species and these historical locations
lack the physical and biological features for the species. Please see
Areas Occupied at the Time of Listing for a more in-depth explanation
for both Texas and Arizona populations. To our knowledge, the species
has never been documented in Florida and no physical evidence of the
species was provided; therefore, we conclude based on the best
scientific data available that Florida is not part of the range of the
species. Furthermore, in the critical habitat discussion below, we
found that the areas currently occupied by the species are sufficient
to conserve the species. Thus, we do not plan to designate unoccupied
areas as critical habitat as they are not essential for the species
conservation. If new information becomes available, we will consider it
when developing our recovery plan for the species.

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 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 historical 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;
Sivinski 2012, entire). As a result, the current extant area of the
remaining 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, pp. 36). The species historically had
representation in the form of two morphologically distinct and
geographically separate forms (eastern and western populations); the
species continues to maintain representation currently in these forms,
although population sizes have decreased. Population redundancy is
maintained across these representation areas, as well.
Wright's marsh thistle is facing threats across its range that have
led to reduced resiliency, redundancy, and representation. 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 projected no change in
resiliency for the eight populations.
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 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 moderate resiliency for their current condition. Populations with
moderate resiliency have some ability to withstand stochastic events
and continue to contribute to overall redundancy for the species. The
threats currently acting on the thistle are likely to reduce the size
of some populations as water availability becomes restricted, but the
populations currently maintain sufficient resiliency. 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 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 timeframes, 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.

[[Page 25220]]

Our analysis of the species' current and future conditions shows
that 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 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
Current Conditions'' 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 ``Continuing Current
Conditions'' scenario becomes less likely. 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, pp. 57-59).
Due to the continuation of threats at increasing levels, we
anticipate a severe future reduction in the thistle's 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 very 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 and 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
foreseeable future, throughout all of its range, and it, therefore,
meets the Act's definition of a threatened species.

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, 435
F. Supp. 3d 69 (D.D.C. 2020) (Everson), vacated the aspect of the Final
Policy on Interpretation of the Phrase ``Significant Portion of Its
Range'' in the Endangered Species Act's Definitions of ``Endangered
Species'' and ``Threatened Species'' (Final Policy; 79 FR 37578; July
1, 2014) that provided that the Service does 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 portions of the range where
the species may be endangered. We evaluated the range of the Wright's
marsh thistle to determine if the species is in danger of extinction
now in any portion of its range. The range of a species can
theoretically be divided into portions in an infinite number of ways.
We focused our analysis on portions of the species' range that may meet
the definition of an endangered species. For Wright's marsh thistle, we
considered whether the threats or their effects on the species are
greater in any biologically meaningful portion of the species' range
than in other portions such that the species is in danger of extinction
now in that portion.
We examined the following threats: decreased water availability
from drought and water management practices (e.g., groundwater pumping
and surface water diversions) (Factor A); native and nonnative plants
(Factor A and E); livestock grazing (herbivory; Factor C); oil, gas,
and mining development (Factor A and E); and the cumulative effects of
these threats. Population condition differences exist between the
eastern and the western portions of the range. The populations in the
western part of the range of Wright's marsh thistle are all in lower
condition--either low or very low--than those in the eastern portion of
the species' range, are all in moderate or better condition. Therefore,
because the western populations have a lower resiliency and, therefore,
higher risk of extirpation, the western populations may have a
different status.
We then proceeded to the significance question, asking whether
there is substantial information indicating that the western portion of
the range may be significant. As an initial note, the Service's most
recent definition of ``significant'' within agency policy guidance has
been invalidated by court order (see Desert Survivors v. Dep't of the
Interior, No. 16-cv-01165 (N.D. Cal. Aug. 24, 2018). Therefore, for
purposes of this analysis the Service is screening for significant
portions of the range by applying any reasonable definition of
``significant.'' Biological importance/significance is often considered
in terms of resiliency, redundancy, or representation. We evaluated the
available information about the western populations of Wright's marsh
thistle in this context, assessing its significance in terms of these
conservation concepts, and determined the information did not
substantially indicate it may be significant. The five populations in
the western area comprise a total of 7.2 acres, out of a total of 108.3
acres that the species currently occupies: 6.7 percent of the species'
range. The small area occupied by the western populations relative to
the species' overall range led us to conclude that this portion of the
Wright's marsh thistle range is not significant in terms of its overall
contribution to the species' resiliency, redundancy, and
representation. Therefore, because we could not answer the significance
question in the affirmative, we conclude that the western population
does not warrant further consideration as a significant portion of the
range.
Overall, we found no substantial information that would indicate
the western populations may be significant. While this area provides
some

[[Page 25221]]

contribution to the species' overall ability to withstand catastrophic
or stochastic events (redundancy and resiliency, respectively), the
species has larger populations that occupy larger areas in the east.
Therefore, because we could not answer both the status and significance
questions in the affirmative, we conclude that the western portion of
the range does not warrant further consideration as a significant
portion of the range of Wright's marsh thistle. 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.

Determination of Status

Our review of the best available scientific and commercial
information indicates that Wright's marsh thistle meets the Act's
definition of a threatened species. Therefore, we are listing 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. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The 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
(https://www.fws.gov/program/endangered-species), or from our New
Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
Funding for recovery actions for this species 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, states within which Wright's marsh thistle occur
including New Mexico and Texas will 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: https://www.fws.gov/service/financial-assistance. Please let us know if you are interested
in participating in recovery efforts for Wright's marsh thistle.
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. 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 Wright's marsh thistle 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 listing on
proposed and ongoing activities within the range of the species. The
discussion below regarding protective regulations under section 4(d) of
the Act complies with our policy.

II. Final 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 [she] deems
necessary and advisable to provide for the conservation of species
listed as threatened. The U.S. Supreme Court has

[[Page 25222]]

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 [her] with regard to the permitted activities for those species. The
Secretary may, for example, permit taking, but not importation of such
species, or [she] may choose to forbid both taking and importation but
allow the transportation of such species'' (H.R. Rep. No. 412, 93rd
Cong., 1st Sess. 1973).
Exercising this authority under section 4(d), the Service developed
a 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 4(d) rule will 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 rule are one of many tools that the Service will use to promote
the conservation of the Wright's marsh thistle.
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 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 that 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.
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.
This obligation does not change in any way for a threatened species
with a species-specific 4(d) rule. Actions that result in a
determination by a Federal agency of ``not likely to adversely affect''
continue to require the Service's written concurrence and actions that
are ``likely to adversely affect'' a species require formal
consultation and the formulation of a biological opinion.

Provisions of the 4(d) Rule

This 4(d) rule will 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 any such
species on any such area; or removing, cutting, digging up, or damaging
or destroying any such species on any other area in knowing violation
of any law or regulation of any State law or regulation 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 (Factor A). 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, this
4(d) rule will help in the efforts to recover the species.
Despite these prohibitions regarding threatened species, we may
under certain circumstances issue permits to carry out one or more
otherwise-prohibited activities, including those described above. The
regulations that govern permits for threatened plants state that the
Director may issue a permit authorizing any activity otherwise
prohibited with regard to threatened species (50 CFR 17.72). Those
regulations also state that the permit shall be governed by the
provisions of Sec. 17.72 unless a special rule applicable to the plant
is provided in Sec. Sec. 17.73 to 17.78. Therefore, permits for
threatened species are governed by the provisions of Sec. 17.72 unless
a species-specific 4(d) rule provides otherwise. However, under our
recent revisions to Sec. 17.71, the prohibitions in Sec. 17.71(a)
will not apply to any plant listed as a threatened species after
September 26, 2019. As a result, for threatened plant species listed
after that

[[Page 25223]]

date, any protections must be contained in a species-specific 4(d)
rule. We did not intend for those revisions to limit or alter the
applicability of the permitting provisions in Sec. 17.72, or to
require that every species-specific 4(d) rule spell out any permitting
provisions that apply to that species and species-specific 4(d) rule.
To the contrary, we anticipate that permitting provisions would
generally be similar or identical for most species, so applying the
provisions of Sec. 17.72 unless a species-specific 4(d) rule provides
otherwise would likely avoid substantial duplication. Moreover, this
interpretation brings Sec. 17.72 in line with the comparable provision
for wildlife at 50 CFR 17.32, in which the second sentence states that
the permit shall be governed by the provisions of Sec. 17.32 unless a
special rule applicable to the wildlife, appearing in 50 CFR 17.40 to
17.48, provides otherwise. Under 50 CFR 17.72 with regard to threatened
plants, a permit may be issued for the following purposes: for
scientific purposes, to enhance propagation or survival, for economic
hardship, for botanical or horticultural exhibition, for educational
purposes, or for other purposes consistent with the purposes and policy
of the Act. Additional statutory exemptions from the prohibitions are
found in sections 9 and 10 of the Act.
We recognize 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,
will 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 4(d) rule will 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.

III. Final 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
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

[[Page 25224]]

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.
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 prohibitions found in section 9 of the Act. Federally
funded or permitted projects affecting listed species outside their
designated critical habitat areas may still result in jeopardy findings
in some cases. These protections and conservation tools will continue
to contribute to recovery of this species. Similarly, critical habitat
designations made on the basis of the best available information at the
time of designation will not control the direction and substance of
future recovery plans, 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.

Critical Habitat Prudency and Determinability

In our SSA report and the 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 the species and that those threats in some way can be
addressed by section 7(a)(2) consultation measures. Accordingly, such a
designation could be beneficial to the species. 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. We have also
reviewed the available information pertaining to the biological needs
of the species and habitat characteristics where the 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

[[Page 25225]]

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, 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.
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 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 designating any areas
outside the geographical area occupied by the species because formerly
occupied areas, such as the ones at Lake Valley, New Mexico, and San
Bernadino, Arizona, have become unsuitable due to lack of water as a
result of various development activities. Therefore, the unoccupied
(but historically occupied) locations do not support any of the
physical or biological features for the Wright's marsh thistle and will
not contribute to future conservation. Thus, we have not identified any
unoccupied areas that meet the definition of critical habitat.
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 SSA and this 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 critical habitat designation includes currently occupied sites
within the species' historical range that have

[[Page 25226]]

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 in Arizona (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. A site in
Presidio County, Texas, was identified in 2003, and mentioned during
the proposed rule's public comment period as having Wright's marsh
thistle. The Texas specimen was collected in 2003 and misidentified as
a different thistle species. It was not correctly identified until
2018, but no field surveys have been conducted to determine if the
species still exists at this site. We have insufficient information
associated with the Texas location to know if this site is occupied at
the time of listing and we are unsure if this population has persisted
since the original collection was made. We also do not have any
information about whether the habitat is intact and if it contains one
or more of the necessary physical or biological features for the
species for us to consider designating this location as critical
habitat under the first prong of the Act's definition of critical
habitat. Likewise, the best available scientific data are not
sufficient for us to determine if the site is essential for the
conservation of the thistle at this time (i.e., qualifies for
consideration as critical habitat under the second prong of the Act's
definition of critical habitat).
New Mexico had 10 historical occurrences, but in a recent search
effort at one of the locations (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 likely a hybrid between Wright's marsh thistle and
Texas thistle (NMRPTC 2009, p. 2), and the site where it was recorded
is now a golf course. A new potential site in New Mexico located on a
Natural Resources Conservation Service easement was identified during
the September 29, 2020, proposed rule's public comment period; however,
we lack sufficient information to determine if one or more physical and
biological features exist at this site. Therefore, we do not consider
these three sites in New Mexico to be essential to the conservation of
the thistle, because the species is no longer present, the habitat is
no longer suitable, the species was misidentified, or we lack
sufficient information. 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;
(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 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 rule have been excluded by
text in the rule and are not designated as critical habitat. Therefore,
a Federal action involving these lands will 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 are designating as critical habitat lands that we 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 designating any areas that are not
currently occupied by the species because we were unable to identify
areas that support the physical and biological features. Additionally,
we did not designate additional areas that were recommended for
consideration during the public comment period because we do not have
sufficient information to determine if they are occupied at the time of
listing or that the physical and biological features exist at any of
these locations and, therefore, cannot conclude that any area would be
essential for the conservation of the species.
Eight units and 13 subunits meet the definition of critical habitat
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 necessary to support multiple life- history processes.
However, at the subunits level, some stressors such as non-native
plants may limit the ability of the Wright's marsh thistle to access
the available physical and biological features. Unit 4 and a portion of
Unit 6 are excluded from the designation for reasons described below in
Exclusions. The final 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 Regulation Promulgation. We include
more detailed information on the boundaries of the critical habitat
designation in the preamble of this rule. 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/office/new-mexico-ecological-services.

Critical Habitat Designation

We are designating 63.4 ha (156.8 ac) in 7 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 critical habitat unit. Table 4
breaks down the approximate percentage and size of the total critical
habitat designation by ownership type. Approximately 35 hectares (87
acres) of Wright's marsh thistle critical habitat overlaps with the
critical habitat of other species, including 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).

[[Page 25227]]

Table 3--Critical Habitat Units for Wright's Marsh Thistle
----------------------------------------------------------------------------------------------------------------
Subunit number and
Unit number and name 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.............. Excluded.
----------------------------------------------------------------------------------------------------------------
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.............. Excluded.
----------------------------------------------------------------------------------------------------------------
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).
----------------------------------------------------------------------------------------------------------------
Total......................... ..................... .................... 63.4 ha (156.8 ac).
----------------------------------------------------------------------------------------------------------------
Note: Area estimates reflect all land within critical habitat unit boundaries, and estimates may not sum due to
rounding.

Table 4--Approximate Percentage and Size of Total Critical Habitat
Designation for Wright's Marsh Thistle per Ownership Type
------------------------------------------------------------------------
Percent of total Size of
Ownership type designation designation
------------------------------------------------------------------------
Private......................... 33.9.............. 21.5 ha (53.18
ac).
Federal......................... 30.6.............. 19.45 ha (48 ac).
State........................... 19.9.............. 12.65 ha (31.2
ac).
City............................ 15.6.............. 9.88 ha (24.4 ac).
Tribal.......................... Excluded.......... Excluded.
------------------------------------------------------------------------

We present brief descriptions of all units 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. All
subunits within the Santa Rosa unit contain all of the physical or
biological features necessary to support the species.
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 is occupied by
Wright's marsh thistle and contains all of the physical or biological
features necessary to support the species. Subunit 1a 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 and 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.
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 is occupied by Wright's
marsh thistle and contains all of the physical or biological features
necessary to support the species. Subunit 1b 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 and decrease
competition with native and nonnative plants via prescribed burning and
mechanical treatments, if necessary.

[[Page 25228]]

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 is occupied by Wright's marsh thistle and contains
all of the physical or biological features necessary to support the
species. Subunit 1c 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 depletion,
as well as native and nonnative plant invasion. Such special management
or protection may include conservation efforts to ensure water
availability and 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.
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 is occupied by
Wright's marsh thistle and contains all of the physical or biological
features necessary to support the species. Subunit 1d 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 and 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. 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 is occupied by Wright's marsh thistle and contains
all of the physical or biological features necessary to support the
species. Subunit 1e 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 and 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.
Subunit 1f: Perch Lake
Subunit 1f consists of 1.9 ha (4.6 ac) in Guadalupe County, New
Mexico. This subunit is occupied by Wright's marsh thistle and contains
all of the physical or biological features necessary to support the
species. Subunit 1f 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 and 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. 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 is occupied by Wright's marsh thistle and contains
all of the physical or biological features necessary to support the
species. Subunit 1g 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 and 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. 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 is occupied
by Wright's marsh thistle and contains all of the physical or
biological features necessary to support the species. Subunit 1h 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 and 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 2: Alamosa Springs

Unit 2 consists of 1.58 ha (3.9 ac) in Socorro County, New Mexico.
This unit is occupied by Wright's marsh thistle and contains all the
physical or biological features necessary to support the species. Unit
2 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, protect
ground water and soil from contaminants during mining activities, and
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 occupied by Wright's marsh thistle and is entirely
managed by the U.S. Fish and Wildlife Service. Both subunits within the
Bitter Lake unit contain all

[[Page 25229]]

of the physical or biological features necessary to support Wright's
marsh thistle. This unit overlaps with occupied habitat for the
federally endangered Koster's springsnail, Noel's amphipod, and Roswell
springsnail. 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. This
subunit is occupied by Wright's marsh thistle and contains all of the
physical or biological features necessary to support the species.
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, prevent spills and protect groundwater
during oil and gas development, and decrease 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. This
subunit is occupied by Wright's marsh thistle contains all of the
physical or biological features necessary to support the species.
Special management considerations or protection may be required in
Subunit 3b 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, prevent spills and protect groundwater
during oil and gas development, and decrease 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 is occupied by Wright's marsh thistle and contains all of the
physical or biological features necessary to support the species. Unit
4 lies along Indian Service Route 10, north of Tularosa Creek, on land
owned by the Mescalero Apache Tribe. We have excluded the entire Unit 4
from this final critical habitat designation (see Exclusions, below).

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 is occupied by Wright's marsh
thistle and contains all of the physical or biological features
necessary to support the species. Unit 5 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 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. 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 is occupied by Wright's marsh thistle and contains all of the
physical or biological features necessary to support the species. Unit
6 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. We
have excluded 0.23 ha (0.58 ac) of land in Unit 6 owned by the
Mescalero Apache Tribe from this final critical habitat designation
(see Exclusions, below). 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 and 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. 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. All subunits within the Karr/Haynes Canyon
unit are occupied by Wright's marsh thistle and contain all of the
physical or biological features necessary to support the species. 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 is occupied by Wright's marsh thistle and contains
all of the physical or biological features necessary to support the
species. Subunit 7a 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 and 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. 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 is occupied by Wright's
marsh thistle and contains all of the physical or biological features
necessary to support the species. Subunit 7b 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 and 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. As this
property has the

[[Page 25230]]

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 is occupied by Wright's
marsh thistle and contains all of the physical or biological features
necessary to support the species. Subunit 7c 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 and 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. 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 is occupied by Wright's marsh thistle
and contains all of the physical or biological features necessary to
support the species. Subunit 7c 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, prevent
spills and protect groundwater during oil and gas development, and
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.

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 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 rule revising the 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 set forth requirements
for 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
if, subsequent to the previous consultation: (1) The amount or extent
of taking specified in the incidental take statement is exceeded; (2)
new information reveals effects of the action that may affect listed
species or critical habitat in a manner or to an extent not previously
considered; (3) the identified action is subsequently modified in a
manner that causes an effect to the listed species or critical habitat
that was not considered in the biological opinion; or (4) a new species
is listed or critical habitat designated that may be affected by the
identified action.
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

[[Page 25231]]

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 section
7(a)(2) of the Act by destroying or adversely modifying such habitat,
or that may be affected by 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 completed INRMP within the critical habitat
designation.

Consideration of Impacts Under 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 designated critical habitat based on
economic impacts, impacts on national security, or any other relevant
impacts. Exclusion decisions are governed by the regulations at 50 CFR
424.19 and the Policy Regarding Implementation of Section 4(b)(2) of
the Endangered Species Act (hereafter, the ``2016 Policy''; 81 FR 7226,
February 11, 2016), both of which were developed jointly with the
National Marine Fisheries Service (NMFS). We also refer to a 2008
Department of the Interior Solicitor's opinion entitled ``The
Secretary's Authority to Exclude Areas from a Critical Habitat
Designation under Section 4(b)(2) of the Endangered Species Act'' (M-
37016). We explain each decision to exclude areas, as well as decisions
not to exclude, to demonstrate that the decision is reasonable.
Under section 4(b)(2) of the Act, we may exclude an area from
designated critical habitat based on economic impacts, impacts on
national security, or any other relevant impacts. In considering
whether to exclude a particular area from the designation, we identify
the benefits of including the area in the designation, identify the
benefits of excluding the area from the designation, and evaluate
whether the benefits of exclusion outweigh the benefits of inclusion.
If the analysis indicates that the benefits of exclusion outweigh the
benefits of inclusion, the Secretary may exercise discretion to exclude
the area only if such exclusion would not result in the extinction of
the species. In the following sections we describe the process we took
to consider each category of impacts and our analyses of the relevant
impacts if exclusions to critical habitat designation are appropriate.
Table 5 below provides approximate areas (ha, ac) of lands that meet
the definition of critical habitat but that we are excluding from this
final critical habitat rule under section 4(b)(2) of the Act.

Table 5--Areas Excluded From Critical Habitat Designation by Critical Habitat Unit for Wright's Marsh Thistle
----------------------------------------------------------------------------------------------------------------
Unit/subunit Landowner Hectares (acres) excluded
----------------------------------------------------------------------------------------------------------------
Unit 4................................. Mescalero Apache Tribe.... 0.65 ha (1.6 ac).
Unit 6................................. Mescalero Apache Tribe.... 0.23 ha (0.58 ac).
--------------------------------------------
Total excluded..................... .......................... 0.88 ha (2.18 ac).
----------------------------------------------------------------------------------------------------------------

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
critical habitat units. 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 critical habitat
designation is analyzed by comparing

[[Page 25232]]

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 section 4(b)(2) exclusion analysis.
For this particular designation, we developed an incremental effect
memorandum (IEM) considering the probable incremental economic impacts
that may result from the 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
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. If the critical habitat
designation contains any unoccupied units, the screening analysis
assesses whether those units are unoccupied because they require
additional management or conservation efforts that may incur
incremental economic impacts. This screening analysis, combined with
the information contained in our IEM, is what we consider our economic
analysis of the 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 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
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. With
the listing of Wright's marsh thistle, in areas where the species is
present, Federal agencies are required to consult with the Service
under section 7 of the Act on activities they fund, permit, or
implement that may affect the thistle. With the species' critical
habitat designation, consultations to avoid the destruction or adverse
modification of critical habitat will be incorporated into the existing
consultation process.
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 critical habitat for Wright's
marsh thistle is being designated concurrently with the species'
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
associated with the designation of critical habitat.
The Service is designating 63.4 ha (156.8 ac) across five New
Mexico counties as critical habitat for Wright's marsh thistle. The
Service has divided the critical habitat into seven units, with some
further divided into subunits. All seven units are occupied by
reproducing populations of the thistle. We are not designating any
unoccupied habitat. Approximately 30.6 percent of the designation is
located on Federal lands and 19.9 percent is on State-owned lands.
Approximately 15.6 percent of the lands are owned by the City of Santa
Rosa, and approximately 33.9 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

[[Page 25233]]

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, which are 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 estimate 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 63.4 ha (156.8 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 economic analysis, 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.

Consideration of National Security Impacts

Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or
areas that pose potential national-security concerns (e.g., a DoD
installation that is in the process of revising its INRMP for a newly
listed species or a species previously not covered). If a particular
area is not covered under section 4(a)(3)(B)(i), then national-security
or homeland-security concerns are not a factor in the process of
determining what areas meet the definition of ``critical habitat.''
However, the Service must still consider impacts on national security,
including homeland security, on those lands or areas not covered by
section 4(a)(3)(B)(i), because section 4(b)(2) requires the Service to
consider those impacts whenever it designates critical habitat.
Accordingly, if DoD, Department of Homeland Security (DHS), or another
Federal agency has requested exclusion based on an assertion of
national-security or homeland-security concerns, or we have otherwise
identified national-security or homeland-security impacts from
designating particular areas as critical habitat, we generally have
reason to consider excluding those areas.
However, we cannot automatically exclude requested areas. When DoD,
DHS, or another Federal agency requests exclusion from critical habitat
on the basis of national-security or homeland-security impacts, we must
conduct an exclusion analysis if the Federal requester provides
credible information, including a reasonably specific justification of
an incremental impact on national security that would result from the
designation of that specific area as critical habitat. That
justification could include demonstration of probable impacts, such as
impacts to ongoing border-security patrols and surveillance activities,
or a delay in training or facility construction, as a result of
compliance with section 7(a)(2) of the Act. If the agency requesting
the exclusion does not provide us with a reasonably specific
justification, we will contact the agency to recommend that it provide
a specific justification or clarification of its concerns relative to
the probable incremental impact that could result from the designation.
If we conduct an exclusion analysis because the agency provides a
reasonably specific justification or because we decide to exercise the
discretion to conduct an exclusion analysis, we will defer to the
expert judgment of DoD, DHS, or another Federal agency as to: (1)
Whether activities on its lands or waters, or its activities on other
lands or waters, have national-security or homeland-security
implications; (2) the importance of those implications; and (3) the
degree to which the cited implications would be adversely affected in
the absence of an exclusion. In that circumstance, in conducting a
discretionary section 4(b)(2) exclusion analysis, we will give great
weight to national-security and homeland-security concerns in analyzing
the benefits of exclusion.
In preparing this final designation, neither DoD nor Department of
Homeland Security identified any potential impacts on national security
or homeland security; as such, we anticipate no impact on national
security or homeland security. During the September 29, 2020, proposed
rule's public comment period, we did not receive any additional
information on the impacts of the proposed designation on national
security or homeland security to determine whether any specific areas
should be excluded from this final critical habitat designation under
authority of section 4(b)(2) and our implementing regulations at 50 CFR
424.19; therefore, we made no changes to the critical habitat
designation as a result of this consideration.

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. Other relevant impacts may include, but are not limited to,
impacts to Tribes, States, local governments, public health and safety,
community interests, the environment (such as increased risk of
wildfire or pest and invasive species management), Federal lands, and
conservation plans, agreements, or partnerships. To identify other
relevant impacts that may affect the exclusion analysis, 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

[[Page 25234]]

Tribal conservation plans and partnerships and consider the government-
to-government relationship of the United States with Tribal entities.
We also consider any State, local, public-health, community-interest,
environmental, or social impacts that might occur because of the
designation.
Tribal Lands
Several Executive Orders, Secretarial Orders, and policies guide
our working relationship with Tribes. These guidance documents
generally confirm our trust responsibilities to Tribes, recognize that
Tribes have sovereign authority to control tribal lands, emphasize the
importance of developing partnerships with tribal governments, and
direct the Service to consult with Tribes on a government-to-government
basis.
A joint Secretarial Order that applies to both the Service and the
National Marine Fisheries Service (NMFS), Secretarial Order 3206,
American Indian Tribal Rights, Federal-Tribal Trust Responsibilities,
and the Endangered Species Act (June 5, 1997) (S.O. 3206), is the most
comprehensive of the various guidance documents related to tribal
relationships and Act implementation, and it provides the most detail
directly relevant to the designation of critical habitat. In addition
to the general direction discussed above, S.O. 3206 explicitly
recognizes the right of Tribes to participate fully in the listing
process, including designation of critical habitat. The Order also
states: ``Critical habitat shall not be designated in such areas unless
it is determined essential to conserve a listed species. In designating
critical habitat, the Services shall evaluate and document the extent
to which the conservation needs of the listed species can be achieved
by limiting the designation to other lands.'' In light of this
instruction, when we undertake a discretionary section 4(b)(2)
exclusion analysis, we will always consider exclusions of tribal lands
under section 4(b)(2) of the Act prior to finalizing a designation of
critical habitat, and will give great weight to tribal concerns in
analyzing the benefits of exclusion.
However, S.O. 3206 does not preclude us from designating tribal
lands or waters as critical habitat, nor does it state that tribal
lands or waters cannot meet the Act's definition of ``critical
habitat.'' We are directed by the Act to identify areas that meet the
definition of ``critical habitat'' (i.e., areas occupied at the time of
listing that contain the essential physical or biological features that
may require special management or protection and unoccupied areas that
are essential to the conservation of a species), without regard to
landownership. While S.O. 3206 provides important direction, it
expressly states that it does not modify the Secretaries' statutory
authority.
Unit 4 (Tularosa Creek) and Unit 6 (Silver Springs)--Mescalero Apache,
NM
On Mescalero Apache tribal lands, we proposed 0.65 ha (1.6 ac) of
critical habitat in Unit 4, as well as 0.23 ha (0.58 ac) of critical
habitat in Unit 6, all in Otero County, NM. The sites are considered
occupied at the time of listing and meet the definition of critical
habitat. However, the Mescalero Apache Tribe is recognized as a
sovereign nation and as such is the appropriate entity to manage
natural resources on Mescalero Apache tribal land. We have a productive
working relationship with the Mescalero Apache Tribe and coordinated
with them during the critical habitat designation process.
Benefits of Inclusion--Mescalero Apache Tribe
As discussed above under Effects of Critical Habitat Designation
Section 7 Consultation, Federal agencies, in consultation with the
Service, must ensure that their actions are not likely to jeopardize
the continued existence of any listed species or result in the
destruction or adverse modification of any designated critical habitat
of such species. The difference in the outcomes of the jeopardy
analysis and the adverse modification analysis represents the
regulatory benefit and costs of critical habitat. A critical habitat
designation requires Federal agencies to consult on whether their
activity would destroy or adversely modify critical habitat to the
point where recovery could not be achieved. Designation of critical
habitat on the Mescalero Apache Tribe land of proposed Unit 4 could
potentially benefit Wright's marsh thistle because that area provides
habitat for the species, encompasses features essential to conservation
of the species, and is occupied by the species. However, formal section
7 consultation within the proposed critical habitat area remains a rare
occurrence, due to a general lack of Federal actions requiring
consultations, and we do not expect this trend to change in the future.
The lack of section 7 consultations results in very limited regulatory
benefits for the designation of critical habitat for the Wright's marsh
thistle in this portion of proposed Unit 4. Therefore, we would not
expect any additional conservation benefits through the section 7
process from the inclusion of Mescalero Apache tribal land in the final
critical habitat designation.
A possible benefit is that the designation of critical habitat can
serve to educate the landowner and public regarding the potential
conservation value of an area, and this may focus and contribute to
conservation efforts by other parties by clearly delineating areas of
high conservation value for certain species. Any information about
Wright's marsh thistle and its habitat that reaches a wide audience,
including other parties engaged in conservation activities, would be
considered valuable.
The designation of critical habitat may also be beneficial by
affecting the implementation of Federal laws, such as the Clean Water
Act. These laws require analysis of the potential for proposed projects
to significantly affect the environment. Critical habitat may signal
the presence of sensitive habitat that could otherwise be missed in the
review process for these other environmental laws.
Finally, there is the possible benefit that additional funding
could be generated for habitat improvement by an area being designated
as critical habitat. Some funding sources may rank a project higher if
the area is designated as critical habitat. Tribes often seek
additional sources of funding in order to conduct wildlife-related
conservation activities. Therefore, having an area designated as
critical habitat could improve the chances of receiving funding for
Wright's marsh thistle habitat-related projects.
Benefits of Exclusion--Mescalero Apache Tribe
The benefits of excluding these tribal lands from designated
critical habitat are significant. We have determined that the primary
benefits that would be realized by foregoing the designation of
critical habitat on this area include: (1) Our deference to the Tribe
as a sovereign nation to develop and implement conservation and natural
resource management plans for their lands and resources, which may
include benefits to Wright's marsh thistle and its habitat that might
not otherwise occur; (2) the continuance and strengthening of our
effective working relationships with the Tribe to promote conservation
of Wright's marsh and its habitat, as well as other federally listed
species; and (3) promoting continued meaningful collaboration and
cooperation with the Tribe in working toward recovering native plant
communities, including Wright's marsh thistle habitat. We have found
that fish, wildlife, and other natural resources on Tribal lands are
better managed under Tribal authorities,

[[Page 25235]]

policies, and programs than through Federal regulations wherever
possible and practicable. Additionally, this critical habitat
designation may compromise our working relationship with the Tribe,
which is essential to achieving our mutual goals of managing for
healthy ecosystems upon which the viability of endangered and
threatened species populations depend.
We have determined that the Mescalero Apache Tribe should be the
governmental entity to manage and promote the conservation of the
Wright's marsh thistle on their land as indicated in Secretarial Order
3206; Executive Order 13175; and the relevant provision of the
Departmental Manual of the Department of the Interior (512 DM 2). We
have determined that our working relationship with the Mescalero Apache
Tribe would be better maintained if they are excluded from the
designation of critical habitat for Wright's marsh thistle. We view
this as a substantial benefit.
Benefits of Exclusion Outweigh the Benefits of Inclusion--Mescalero
Apache Tribe
The benefits of excluding this area from critical habitat include
deference to the Tribe as a sovereign nation to manage its own lands,
continuing and strengthening our effective working relationships with
the Tribe to promote conservation of Wright's marsh and its habitat,
and continuing meaningful collaboration and cooperation in working
toward recovering native plant communities, including Wright's marsh
thistle habitat.
The benefits of including Mescalero Apache Tribe in the critical
habitat designation are limited to the incremental benefits gained
through the regulatory requirement to consult under section 7 and
consideration of the need to avoid adverse modification of critical
habitat, agency and educational awareness, potential additional grant
funding, and the implementation of other law and regulations. However,
due to the rarity of Federal actions resulting in formal section 7
consultations within the proposed critical habitat area, the benefits
of a critical habitat designation are minimal. The Service's working
relationship with the Tribe will be better maintained if these sites in
Unit 4 and Unit 6 located on Mescalero Apache tribal lands are excluded
from the designation. We view this as a substantial benefit since we
are committed to cooperative relationships with Tribes for the mutual
benefit of endangered and threatened species, including Wright's marsh
thistle. For these reasons, we have determined that designation of
critical habitat at these sites would have few, if any, additional
benefits beyond those that will result from the presence of the
species.
In summary, the benefits of including Mescalero Apache tribal lands
in critical habitat are low and are limited to insignificant
educational benefits. Educational opportunities would predominately
benefit members of the Tribe rather than the general public. Also, for
at least two subunits, the areas in question are located on Tribal
lands which may not be accessible by the general public. They may also
be inaccessible to Tribal members if the species is located on the
private property of Tribal members. However, the ability of the Tribe
to manage natural resources on their land without the perception of
Federal Government intrusion, is a significant benefit. This philosophy
is also consistent with our published policies on Native American
natural resource management. The exclusion of this area will likely
also provide additional benefits to the species that would not
otherwise be available such as ensuring continued cooperative working
relationships with the Mescalero Apache Tribe. We find that the
benefits of excluding this area from critical habitat designation
outweigh the benefits of including this area.
Exclusion Will Not Result in Extinction of the Species--Mescalero
Apache Tribe
We have determined that exclusion of Mescalero Apache tribal lands
will not result in extinction of the species. As discussed above under
Effects of Critical Habitat Designation Section 7 Consultation, if a
Federal action or permitting occurs, the known presence of Wright's
marsh thistle would require evaluation under the jeopardy standard of
section 7 of the Act, even absent the designation of critical habitat,
and thus will protect the species against extinction. Furthermore, the
Mescalero Apache Tribe is committed to protecting and managing
Mescalero Apache tribal lands and species found on those lands
according to their tribal and cultural management plans and natural
resource management objectives. In short, the Mescalero Apache Tribe is
committed to greater conservation measures on their land than would be
available through the designation of critical habitat. Additionally,
the areas we are excluding, 0.88 ha (2.18 ac), accounted for less than
1 percent of areas we are designating as critical habitat. Accordingly,
we have determined that all 0.65 ha (1.6 ac) of critical habitat in
Unit 4, as well as 0.23 ha (0.58 ac) of critical habitat in Unit 6, of
Mescalero Apache tribal lands are excluded under subsection 4(b)(2) of
the Act because the benefits of exclusion outweigh the benefits of
inclusion and will not cause the extinction of the species.

Exclusions

After analyzing these potential impacts, we have determined that
all 0.65 ha (1.6 ac) of critical habitat in Unit 4, as well as 0.23 ha
(0.58 ac) of critical habitat in Unit 6, of Mescalero Apache tribal
lands are excluded under subsection 4(b)(2) of the Act in deference to
the Tribe, as a sovereign nation, to manage its own lands. During the
September 29, 2020, proposed rule's public comment period, we did not
receive any additional information regarding other relevant impacts to
determine whether any other 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. Therefore, we are
excluding a total of 0.88 ha (2.18 ac) of Mescalero Apache tribal land
from the designation, including all of Unit 4 (0.65 ha (1.6 ac)), as
well as 0.23 ha (0.58 ac) of critical habitat in Unit 6.

Required Determinations

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 determined that this rule is not
significant.
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

[[Page 25236]]

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.
Under the RFA, as amended, and as understood in light of recent
court decisions, Federal agencies are required to evaluate the
potential incremental impacts of rulemaking on those entities directly
regulated by the rulemaking itself; in other words, the RFA does not
require agencies 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 directly
regulated by this critical habitat designation. The RFA does not
require evaluation of the potential impacts to entities not directly
regulated. Moreover, Federal agencies are not small entities.
Therefore, because no small entities will be directly regulated by this
rulemaking, the Service certifies that this critical habitat
designation will not have a significant economic impact on a
substantial number of small entities.
In summary, we have considered whether designation will 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 the final critical habitat designation will not have a
significant economic impact on a substantial number of small business
entities. Therefore, a regulatory flexibility analysis is not required.

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. In our economic analysis, we did not find that the
designation of 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 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 will 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 does not apply, nor does
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We have determined that this rule will not significantly or
uniquely affect small governments because it would not produce a
Federal mandate of $100 million or greater in any year; that is, it

[[Page 25237]]

is not a ``significant regulatory action'' under the Unfunded Mandates
Reform Act. The designation of critical habitat imposes no obligations
on State or local governments. By definition, Federal agencies are not
considered small entities, although the activities they fund or permit
may be proposed or carried out by small entities. Consequently, we have
determined that the critical habitat designation would not
significantly or uniquely affect small government entities. As such, a
Small Government Agency Plan is not required. We did notify the City of
Santa Rosa when we proposed to designate critical habitat for the
Wright's marsh thistle, and we invited their comments on the proposed
critical habitat designation with regard to any potential effects. We
did not receive any comments from the City of Santa Rosa; therefore, we
made no changes to this rule.

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 it concludes that this designation of critical habitat for Wright's
marsh thistle will not pose significant takings implications for lands
within or affected by the designation.

Federalism--Executive Order 13132

In accordance with E.O. 13132 (Federalism), this 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 final 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 will 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. However,
it may assist State and local governments in long-range planning
because they no longer have to wait for case-by-case section 7
consultations to 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) will 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 this 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 are 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 on 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. During the public comment period we
provided a draft Environmental Assessment and invited the public to
comment on the extent to which this rule 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 then finalized the
Environmental Assessment and determined that the designation of
critical habitat for Wright's marsh thistle does not constitute a major
Federal action significantly affecting the quality of the human
environment under the meaning of Section 102(2)(c) of the NEPA (1969,
as amended). Therefore, the Service made a Finding of No Significant
Impact as allowed by NEPA regulation and supported by Council on
Environmental Quality guidance.

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations

[[Page 25238]]

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.
The Mescalero Apache Tribe is the main Tribe whose lands and trust
resources may be affected by this rule. 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, we engaged in
conversations with the Tribe about the final designation to the extent
possible without disclosing pre-decisional information via requests for
additional information in September 2016 and January 2018, and provided
notice of the publication of the 2020 proposed rule. There may be some
other Tribes with trust resources in the area, but we have no specific
documentation of this. Using the criteria described above under
Criteria Used To Identify Critical Habitat, we determined that 0.88 ha
(2.18 ac) of Mescalero Apache lands met the definition of critical
habitat. After considering impacts of the critical habitat designation
under section 4(b)(2) of the Act, we are excluding the 0.88 ha (2.18
ac) of Mescalero Apache lands from the final critical habitat
designation.

References Cited

A complete list of references cited in this final 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).

Authors

The primary authors of this final 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.

Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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

0
2. Amend Sec. 17.12 in paragraph (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 follows:

Sec. 17.12 Endangered and threatened plants.

* * * * *
(h) * * *

----------------------------------------------------------------------------------------------------------------
Listing citations
Scientific name Common name Where listed Status and applicable
rules
----------------------------------------------------------------------------------------------------------------
Flowering Plants

* * * * * * *
Cirsium wrightii................ Wright's marsh Wherever found..... T 88 FR [INSERT
thistle. FEDERAL REGISTER
PAGE WHERE THE
DOCUMENT BEGINS],
4/25/2023; 50 CFR
17.73(c); \4d\ 50
CFR 17.96(a).\CH\

* * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. Amend Sec. 17.73 by adding paragraph (c) to read as follows:

Sec. 17.73 Special rules--flowering plants.

* * * * *
(c) Cirsium wrightii (Wright's marsh thistle).
(1) Prohibitions. The following prohibitions that apply to
endangered plants also apply to the Wright's marsh thistle. Except as
provided under paragraph (c)(2) of this section, it is unlawful for any
person subject to the jurisdiction of the United States to commit, to
attempt to commit, to solicit another to commit, or cause to be
committed, any of the following acts in regard to this species:
(i) Remove and reduce to possession the species 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 (c)(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.
* * * * *

0
4. Amend Sec. 17.96 in paragraph (a) by adding an entry for ``Family
Asteraceae: Cirsium wrightii (Wright's marsh thistle)'' in alphabetical
order 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.

[[Page 25239]]

(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 humanmade 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
May 25, 2023.
(4) Data layers defining map units were created using the latest
imagery available through Esri (https://www.esri.com/en-us/home). The
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/office/new-mexico-ecological-services, 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) Index map follows:
Figure 1 to Family Asteraceae: Cirsium wrightii (Wright's marsh
thistle) paragraph (5)
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[[Page 25240]]

[GRAPHIC] [TIFF OMITTED] TR25AP23.000

(6) Unit 1: Santa Rosa, Guadalupe County, New Mexico.
(i) 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:

Figure 2 to Family Asteraceae: Cirsium wrightii (Wright's marsh
thistle) paragraph (6)(ii)

[[Page 25241]]

[GRAPHIC] [TIFF OMITTED] TR25AP23.001

Figure 3 to Family Asteraceae: Cirsium wrightii (Wright's marsh
thistle) paragraph (6)(ii)

[[Page 25242]]

[GRAPHIC] [TIFF OMITTED] TR25AP23.002

Figure 4 to Family Asteraceae: Cirsium wrightii (Wright's marsh
thistle) paragraph (6)(ii)

[[Page 25243]]

[GRAPHIC] [TIFF OMITTED] TR25AP23.003

(7) Unit 2: Alamosa Springs, Socorro County, New Mexico.
(i) 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:

Figure 5 to Family Asteraceae: Cirsium wrightii (Wright's marsh
thistle) paragraph (7)(ii)

[[Page 25244]]

[GRAPHIC] [TIFF OMITTED] TR25AP23.004

(8) Unit 3: Bitter Lake, Chaves County, New Mexico.
(i) 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:

Figure 6 to Family Asteraceae: Cirsium wrightii (Wright's marsh
thistle) paragraph (8)(ii)

[[Page 25245]]

[GRAPHIC] [TIFF OMITTED] TR25AP23.005

(9) Unit 4 has been excluded from this critical habitat
designation.
(10) Unit 5: La Luz Canyon, Otero County, New Mexico.
(i) 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:

Figure 7 to Family Asteraceae: Cirsium wrightii (Wright's marsh
thistle) paragraph (10)(ii)

[[Page 25246]]

[GRAPHIC] [TIFF OMITTED] TR25AP23.006

(11) Unit 6: Silver Springs, Otero County, New Mexico.
(i) Unit 6 consists of 0.38 ha (0.95 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 6 follows:

Figure 8 to Family Asteraceae: Cirsium wrightii (Wright's marsh
thistle) paragraph (11)(ii)

[[Page 25247]]

[GRAPHIC] [TIFF OMITTED] TR25AP23.007

(12) Unit 7: Karr/Haynes Canyon, Otero County, New Mexico.
(i) 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:

Figure 9 to Family Asteraceae: Cirsium wrightii (Wright's marsh
thistle) paragraph (12)(ii)

[[Page 25248]]

[GRAPHIC] [TIFF OMITTED] TR25AP23.008

(13) Unit 8: Blue Springs, Eddy County, New Mexico.
(i) 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:

Figure 10 to Family Asteraceae: Cirsium wrightii (Wright's marsh
thistle) paragraph (13)(ii)

[[Page 25249]]

[GRAPHIC] [TIFF OMITTED] TR25AP23.009

* * * * *

Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-08565 Filed 4-24-23; 8:45 am]
BILLING CODE 4333-15-C