[Federal Register Volume 88, Number 161 (Tuesday, August 22, 2023)]
[Rules and Regulations]
[Pages 57180-57222]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-17669]
[[Page 57179]]
Vol. 88
Tuesday,
No. 161
August 22, 2023
Part II
Department of the Interior
-----------------------------------------------------------------------
Fish and Wildlife Service
-----------------------------------------------------------------------
50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Threatened Species
Status With Section 4(d) Rule for Sand Dune Phacelia and Designation of
Critical Habitat; Final Rule
Federal Register / Vol. 88 , No. 161 / Tuesday, August 22, 2023 /
Rules and Regulations
[[Page 57180]]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R1-ES-2021-0070; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BF89
Endangered and Threatened Wildlife and Plants; Threatened Species
Status With Section 4(d) Rule for Sand Dune Phacelia and Designation of
Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), list the
sand dune phacelia (Phacelia argentea), a plant species from coastal
southern Oregon and northern California, as a threatened species with a
rule issued under section 4(d) of the Endangered Species Act of 1973,
as amended (Act). We also designate critical habitat for the species
under the Act. In total, approximately 180.8 acres (73.2 hectares)
within 13 units in Coos and Curry Counties in Oregon, and Del Norte
County in California, fall within the boundaries of the critical
habitat designation. This rule extends the protections of the Act to
this species and its designated critical habitat.
DATES: This rule is effective September 21, 2023.
ADDRESSES: This final rule is available on the internet at https://www.regulations.gov. Comments and materials we received, as well as
supporting documentation we used in preparing this rule, are available
for public inspection at https://www.regulations.gov at Docket No. FWS-
R1-ES-2021-0070.
The coordinates or plot points (or both) from which the maps are
generated are included in the decision file for this critical habitat
designation and are available at https://www.regulations.gov at Docket
No. FWS-R1-ES-2021-0070 and at the Oregon Fish and Wildlife Office (see
FOR FURTHER INFORMATION CONTACT, below). The critical habitat shapefile
is available on the Service's Environmental Conservation Online System
(ECOS) portal at https://www.ecos.fws.gov.
FOR FURTHER INFORMATION CONTACT: Kessina Lee, State Supervisor, Oregon
Fish and Wildlife Office, 2600 SE 98th Avenue, Suite 100, Portland, OR
97266; telephone (503) 231-6988. 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, a species warrants
listing if it meets the definition of an endangered species (in danger
of extinction throughout all or a significant portion of its range) or
a threatened species (likely to become endangered in the foreseeable
future throughout all or a significant portion of its range). We have
determined that the sand dune phacelia meets the definition of a
threatened species; therefore, we are listing it as such and finalizing
a designation of its critical habitat. Listing a species as an
endangered or threatened species and designation of critical habitat
can be completed only by issuing a rule through the Administrative
Procedure Act rulemaking process (5 U.S.C. 551 et seq.).
What this document does. This rule lists the sand dune phacelia
(Phacelia argentea) as a threatened species with a rule issued under
section 4(d) of the Act (a ``4(d) rule'') and designates critical
habitat comprised of 13 units totaling approximately 180.8 acres (ac)
(73.2 hectares (ha)) in Coos and Curry Counties in Oregon, and Del
Norte County in California.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species based on any one or more
of the following five factors or the cumulative effects thereof: (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 the primary threats to sand dune phacelia are invasive species
encroachment and competition, climate change, and small population size
(Factors A and E).
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary) to designate critical habitat concurrent with listing to
the maximum extent prudent and determinable. Section 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
Please refer to our March 22, 2022, proposed rule (87 FR 16320) for
a detailed description of previous Federal actions concerning the sand
dune phacelia.
Peer Review
A species status assessment (SSA) team prepared an SSA report for
the sand dune phacelia. 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 solicited independent scientific
review of the information contained in the sand dune phacelia SSA
report. As discussed in the proposed rule, we sent the SSA report to
three independent peer reviewers and received three responses. The peer
reviews can be found at https://www.regulations.gov. In preparing the
proposed rule, we incorporated the results of these reviews, as
appropriate, into the SSA report, which was the foundation for the
proposed rule and this final rule. A summary of the peer review
comments and our responses can be found in the Summary of Comments and
Recommendations below.
Summary of Changes From the Proposed Rule
We made several changes in this final rule in response to public
comments we received on the March 22, 2022,
[[Page 57181]]
proposed rule (87 FR 16320). Specifically, we:
Completed minor editorial changes and reorganized various
sections of the rule to improve readability, and made many small,
nonsubstantive clarifications and corrections throughout the rule in
order to ensure better consistency, clarify information, and update or
add new references;
Corrected a mapping error that resulted in proposed
critical habitat Unit 10 (Pacific Shores) being too large, and we
produced a new map and description for Unit 10 (see details under Our
Response to (6) Comment below). The correction decreased Unit 10's
acreage from 92.3 ac (37.4 ha) to 21 ac (8.5 ha); and
Corrected the statement of land ownership for critical
habitat Unit 13 (Pebble Beach) based on new information provided by Del
Norte County.
We conclude that the information we received during the comment
period for the proposed rule did not change our previous analysis of
the magnitude or severity of threats facing the species or our
determination that the sand dune phacelia meets the definition of a
threatened species under the Act (16 U.S.C. 1531 et seq.).
Summary of Comments and Recommendations
In our March 22, 2022, proposed rule (87 FR 16320), we requested
that all interested parties submit written comments on the proposal by
May 23, 2022. We also contacted appropriate Federal and State agencies,
scientific experts and organizations, and other interested parties and
invited them to comment on the proposed rule. Newspaper notices
inviting general public comment were published in the Eureka Times
Standard and The Oregonian on March 27, 2022. We also notified members
of Congress, Tribes, and Federal and State agencies within the range of
the species by email on March 18, 2022. On March 21, 2022, email
notifications were sent to County Commissioners and relevant nonprofit
organizations within the sand dune phacelia's range. All substantive
information provided during the comment period has either been
incorporated directly into this final rule or is addressed below.
Examples of nonsubstantive comments include those that emphasized the
importance of sand dune phacelia in the ecosystem and the importance of
preserving biodiversity. Other commenters made suggestions for public
engagement and outreach to protect sand dune phacelia and its habitat.
While these comments were not incorporated into this final rule, we
have noted them, and look forward to working with our partners on these
topics during recovery planning for sand dune phacelia.
Peer Reviewer Comments
As discussed above, we received comments from three peer reviewers
on the draft SSA report. We reviewed all comments we received from the
peer reviewers for substantive issues and new information regarding the
content contained in the SSA report. The peer reviewers generally
concurred with our methods and conclusions, and provided additional
information, clarifications, and suggestions to improve the document,
including an added emphasis on the importance of invasive species
control to maintain the viability of sand dune phacelia populations. No
substantive changes to our analysis and conclusions within the SSA
report were deemed necessary, and peer reviewer comments are addressed
in version 1.0 of the SSA report, which is available for public review
at https://www.regulations.gov under Docket No. FWS-R1-ES-2021-0070.
Public Comments
We received public comments from 24 entities in response to our
March 22, 2022, proposed rule (87 FR 16320). We reviewed all the
comments we received during the public comment period for substantive
issues and new information regarding the proposed rule. Eleven
commenters provided substantive comments or new information concerning
the proposed listing and designation of critical habitat for the sand
dune phacelia. Substantive comments that were similar in content are
grouped together and are addressed collectively below. Comments outside
the scope of the proposed rule or those without supporting information
did not warrant an explicit response and, therefore, are not presented
here. All comments are available at https://www.regulations.gov in
Docket No. FWS-R1-ES-2021-0070.
(1) Comment: Four commenters expressed their concern that the
acreage of proposed critical habitat is too small to adequately protect
and recover sand dune phacelia.
Our Response: Each proposed critical habitat unit currently
contains sand dune phacelia populations of at least 25 individuals. We
determined that these units, if recovered, would be sufficient to
conserve the species because they are distributed across the three
representation units and across the historical range of the species,
thereby encompassing the full array of ecological diversity that exists
within the species' range. Therefore, if these populations were
recovered to sufficient resiliency, they would provide adequate
redundancy and representation for the species. Because we found areas
currently occupied by sand dune phacelia populations of at least 25
individuals sufficient to recover the species, we conclude that the
critical habitat designation is adequate.
Please note that, as we discuss below (see Background under III.
Critical Habitat), 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 the sand dune phacelia;
and (3) the prohibitions found in the 4(d) rule for this species.
(2) Comment: Five commenters stated that the proposed listing and
designation of critical habitat will negatively affect public access
and recreation in California, including the Pacific Shores Subdivision,
the Lake Earl Wildlife Area, Tolowa Dunes State Park, and Point Saint
George.
Our Response: The designation of critical habitat does not prevent
access to any land, whether private, Tribal, State, or Federal.
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.
None of the lands supporting sand dune phacelia populations or
designated as critical habitat in California are owned or managed by
Federal agencies. Public access and use of critical habitat for
recreational activities is managed under the jurisdiction of the
current land
[[Page 57182]]
management entity or owner (e.g., State, County, or private) and, in
the absence of a Federal nexus, may continue under their guiding
authorities or private property rights. In addition, existing roads
that may provide public access are, by definition, not included within
critical habitat, nor are other developed areas such as buildings,
airports, parking lots, piers, and similar facilities.
(3) Comment: One commenter stated that because Crissey Fields State
Park in Oregon includes open dune habitat with greater than 25
individual sand dune phacelia plants, it meets our criteria for
critical habitat and should be designated as such.
Our Response: We proposed designating critical habitat only where
naturally occurring sand dune phacelia populations exist that consist
of 25 or more individuals. We did not include augmented or introduced
populations because of the high incidence of plant mortality generally
observed following transplantation efforts, and significant uncertainty
as to whether these populations are capable of contributing to the
maintenance or enhancement of sand dune phacelia populations over time.
The population at Crissey Fields is, for the most part, the result of a
population augmentation effort in which 111 individuals were planted in
2018. The declining natural population was last counted in 2017 and
consisted at the time of 24 plants. Invasive grasses and granivory were
cited as threats, larger plants were dying, and there was little
evidence of natural recruitment. Because the most recent information
available on the natural population at Crissey Fields indicates that it
consists of fewer than 25 individuals, it does not meet the criteria we
defined for identifying critical habitat. Monitoring of the
transplanted individuals in 2019 documented 49 remaining plants of
those transplanted, with a 44 percent decline in transplant viability
in the first year. However, because this rule lists the sand dune
phacelia as a threatened species under the Act, and thereby extends the
protections of the Act to this species, this rule protects the sand
dune phacelia at Crissey Fields and in other areas it occupies even
absent a critical habitat designation.
(4) Comment: Two commenters stated that public outreach regarding
the listing of sand dune phacelia and designation of critical habitat
was inadequate and that the comment period should be extended.
Our Response: Our March 22, 2022, proposed rule (87 FR 16320)
opened a 60-day public comment period, ending May 23, 2022, for the
proposed listing, 4(d) rule, and critical habitat designation for this
species. As required by section 4(b)(5) of the Act (16 U.S.C.
1533(b)(5)), newspaper notices inviting general public comment were
published in the Eureka Times Standard and The Oregonian on March 27,
2022. We also sent notices of the proposed rule and opportunity to
comment to members of Congress, Tribes, States, and other interested
parties, and notified each County Commissioner within the range of the
sand dune phacelia.
The Act requires the Service to publish a final rule within 1 year
from the date we propose to list a species (see 16 U.S.C.
1533(b)(6)(A)), and consequently our standard comment period for
listing actions is limited to 60 days. This 1-year timeframe can only
be extended if there is substantial disagreement regarding the
sufficiency or accuracy of the available data relevant to the
determination, but only for 6 months and only for purposes of
soliciting additional data (see 16 U.S.C. 1533(b)(6)(B)). Based on the
comments received and data evaluated regarding our proposed
determination for sand dune phacelia, there is not substantial
disagreement concerning the sufficiency or accuracy of the data and
therefore no grounds for delaying our final determination.
(5) Comment: Three commenters stated that the need to breach Tolowa
Lake and Lake Earl in California when necessary will continue, and that
water management would be negatively affected by the listing of sand
dune phacelia, the designation of its critical habitat, or both.
Our Response: Del Norte County's ability to breach Lake Earl and
Lake Tolowa for water management purposes requires permitting by the
U.S. Army Corps of Engineers (Corps). Permitting through a Federal
agency establishes a Federal nexus whereby the Corps must consult with
the Service to ensure that the action, in this case dune breaching,
will not jeopardize the continued existence of listed species within
the action area and will not adversely modify designated critical
habitat. As discussed in the SSA report, we acknowledge that sand dune
phacelia may be negatively influenced by factors other than competition
from invasive species, including flooding. However, the available data
and historical information do not indicate that flooding is a threat
that drives population decline for sand dune phacelia. Therefore, while
consultation between the Corps and the Service may be required for
breaching Lake Earl and Lake Tolowa, the Service does not anticipate
that the listing of the sand dune phacelia and the designation of its
critical habitat will substantially affect Del Norte County's ability
to manage lake levels.
(6) Comment: One commenter questioned why proposed Unit 10 (Pacific
Shores) is so large. They wondered if unoccupied areas were included
for future restoration activities (i.e., European beachgrass (Ammophila
arenaria) removal).
Our Response: The boundaries of proposed Unit 10 were incorrectly
mapped in our March 22, 2022, proposed rule (87 FR 16320), and this
final rule corrects that error. We delineated critical habitat unit
boundaries by joining patches of sand dune phacelia within each
population to form discrete areas (i.e., units). This was accomplished
by joining patch vertices and creating minimum convex polygons. In
California, we considered patches to be part of the same population if
they were within 0.25 miles (0.40 kilometers (km)) of each other, as
defined by the California Natural Diversity Database (CNDDB 2020,
unpaginated). In Oregon, patches were considered part of the same
population if they were within 0.30 miles (0.48 km) of each other, as
defined by the Oregon Biodiversity Information Center (ORBIC 2020,
unpaginated). The Pacific Shores sand dune phacelia population is made
up of one main patch that contains the majority of the individuals in
the population, and two much smaller patches with fewer individuals to
the north of the main population. Even though the California Natural
Diversity Database (CNDDB 2020, unpaginated) considers all three
patches to be part of a single population, the two smaller patches to
the north are just outside of the 0.25-mile (0.40-km) range within
which individuals are usually considered to be of the same population,
as well as beyond the measure by which we joined patches of sand dune
phacelia for the critical habitat designation. For this reason, the
area between the main population and the two patches to the north
should not have been included in the proposed designation. In the
corrected map in this final rule, the two patches to the north (which
are within 0.25 miles of one another) are joined into a separate
subunit from the main subunit to the south. The corrected acreage for
the Unit 10 is 21 ac (8.5 ha). The Unit 10 map, as well as acreages
associated with this unit, have all been corrected in this final rule.
(7) Comment: Two commenters stated that removal of European
beachgrass is harmful to coastal areas as it destabilizes dunes, causes
erosion, and exposes infrastructure to storm damage,
[[Page 57183]]
and questioned why we did not analyze those impacts.
Our Response: The analysis of effects was based on impacts to sand
dune phacelia, not coastal infrastructure. Prior to the introduction of
European beachgrass, sand dunes moved in response to ocean tides,
storms, and wind. Native plant communities evolved to adapt to this
dynamic landscape. Dune restoration activities, including the removal
of stabilizing monocultures of invasive beachgrass, have been
demonstrated to be beneficial to and promote the recovery of sand dune
phacelia populations. Whether or not the removal of European beachgrass
negatively affects other aspects of coastal areas is outside the scope
and intent of this rulemaking.
(8) Comment: Two commenters requested that the Service not allow
the California Department of Fish and Wildlife (CDFW) to fence off or
buffer the portion of Unit 11 that is on the Lake Earl Wildlife Area.
Our Response: 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. Unless there is a Federal nexus, such
as a federally issued permit, for an activity affecting designated
critical habitat, the Service does not have the authority to direct
activities, or have any other jurisdiction, over lands managed by CDFW.
For more information, see our response to (2) Comment, above.
(9) Comment: One commenter notified us that the California
Transportation Department (CALTRANS) does not have any ownership in
proposed Unit 13, Pebble Beach. Rather, they stated that all land in
proposed Unit 13 belongs to Del Norte County.
Our Response: We obtained land ownership data from the Protected
Areas Database v2.1, and we appreciate corrections to our land
ownership data. In this final rule, we revise acreages to show all land
ownership in Unit 13 as belonging to Del Norte County.
(10) Comment: One commenter stated that there is no evidence that
sand dune phacelia existed historically in significant quantities in
northern California.
Our Response: We found the California Natural Diversity Database
(CNDDB 2020, unpaginated) to be the best information available
regarding the historical abundance and location of sand dune phacelia
populations in California. The earliest record of sand dune phacelia in
California is from 1929. Another population, now extirpated, that
straddled the Oregon and California border was observed in 1913. The
issue of ``significant quantities'' is subjective, but there is
consistent documentation of sand dune phacelia in northern California
from 1913 to the present (Kalt 2008, table 1), with population
estimates showing a steady decline from the 1980s onward.
(11) Comment: Two commenters stated that road maintenance may be
required within critical habitat units in California, and that
continued road maintenance would be required to provide for public
access.
Our Response: In our March 22, 2022, proposed rule (87 FR 16320),
and in this final rule, we state that critical habitat does not include
manmade structures (such as buildings, aqueducts, runways, roads, and
other paved areas) and the land on which they are located existing
within the legal boundaries on the effective date of this rule (see
DATES, above). Therefore, maintenance activities on roadways will not
be affected by this critical habitat designation. Further, the
designation of critical habitat along roadways does not prevent access
to that land (e.g., for road maintenance activities), but may require
that Federal agencies ensure that any action they authorize, fund, or
carry out is not likely to result in the destruction or adverse
modification of critical habitat under section 7 of the Act.
(12) Comment: One commenter stated that the maps supplied in the
March 22, 2022, proposed rule are poor representations of what specific
lands are included in the critical habitat areas near Lake Tolowa
(proposed Unit 11). They further stated that a more detailed map is
needed to assess whether all occupied areas are included within Unit
11, and that the maps do not accurately display public and private land
boundaries within proposed Unit 10 (Pebble Beach).
Our Response: The maps we present in the proposed rule and in this
final rule comply with the parameters for publication in the Code of
Federal Regulations. These maps and the subsequent textual unit
descriptions are the official delineation of the critical habitat
designation for the sand dune phacelia. Critical habitat shapefiles,
which can provide more detail and metadata on each unit, are available
to the public on the species' profile page at https://ecos.fws.gov/ecp/species/Q2FB, and then by clicking on Critical Habitat (https://ecos.fws.gov/ecp/species/Q2FB#crithab).
(13) Comment: One commenter stated that the entire Tolowa Dunes
State Park (TDSP)/Lake Earl Wildlife Area (LEWA) joint restoration area
(376 acres) should be included in proposed Unit 11, Tolowa Dunes. They
stated that the minimum LEWA acreage is approximately 6 acres, not 4
acres as mapped, and that the additional 2 acres were not surveyed by
the Service's contractor. They also stated that other areas in the LEWA
(outside of the 6 acres) have isolated sand dune phacelia plants that
were also not included in proposed Unit 11. Additionally, they stated
that other historically occupied sites in the TDSP/LEWA joint
restoration area may also have been omitted. They stated that the
entire area, including areas not yet restored and potentially
unoccupied, is necessary for the conservation of the species and that
the entire restoration area (376 acres) should be included in Unit 11
to support and encourage the restoration of former sand dune phacelia
and western snowy plover (Charadrius alexandrinus nivosus) habitat.
Our Response: We determined that the areas occupied by sand dune
phacelia that we proposed for designation as critical habitat are
adequate to ensure the conservation of the species, and, therefore, no
other areas are included in this critical habitat designation (see our
response to (1) Comment, above). As described in the SSA report
(Service 2021, pp. 22-23), locations and data related to sand dune
phacelia populations were available primarily from the Oregon
Biodiversity Information Center (ORBIC 2020, unpaginated) and the
California Natural Diversity Database (CNDDB 2020, unpaginated), but
also via information provided by our partners (such as the Bureau of
Land Management (BLM)) during our early outreach to partners with
requests for information on the species. Most of the populations we
identified from our review of available data were surveyed in 2017 by
the Oregon Department of Agriculture's Plant Conservation Program
(Brown 2020a, unpaginated). The 2017 survey enumerated current
population size, examined historical data to discern population trends,
delineated the area occupied, briefly described the habitat, and
identified stressors at each site. However, nine of the populations we
identified during our data review were not visited during the 2017
survey, and for these populations we instead used the best data
available prior to 2017 to determine current status. Similarly, if data
for some populations more recent than 2017 were available, then we used
that most recent data to determine current status. Further, if
available
[[Page 57184]]
occurrence records of sand dune phacelia did not meet our criteria for
inclusion as critical habitat (e.g., they consisted only of isolated
individuals), we did not include those areas as critical habitat (see
also our responses to (4) Comment and (7) Comment, above). Conversely,
some populations, due to restoration efforts, have expanded since 2017,
and therefore may be larger than last documented in the SSA report.
Nonetheless, the data provided by the 2017 survey and other sources
gathered during our data review and request for information from our
partners constitute the most comprehensive dataset that we are aware
exists and represents the best scientific data available upon which to
base our critical habitat designation.
According to section 7(a)(2) of the Act, the regulatory effect of
critical habitat designation is to ensure that any action authorized,
funded, or carried out by a Federal agency is not likely to result in
the destruction or adverse modification of that habitat. As noted above
in our response to (3) Comment, critical habitat designation does not
require implementation of restoration, recovery, or enhancement
measures by non-Federal or Federal landowners, nor does it establish
specific land management standards or prescriptions. However, the Act
provides many tools to advance the conservation of listed species.
Conservation of sand dune phacelia is dependent upon working
partnerships with a wide variety of entities, including the voluntary
cooperation of non-Federal landowners. Building partnerships and
promoting cooperation of landowners are essential to understanding the
status of species on non-Federal lands and may be necessary to
implement recovery actions such as habitat restoration and habitat
protection. Support provided by the Service for sand dune phacelia
includes funding under section 6 of the Act and from our Coastal
Program grants to the States to implement conservation actions. This
support is not limited to designated critical habitat but may occur
wherever the species is found throughout its range.
(14) Comment: One commenter claimed that illegal vehicle trespass
should be identified as a significant threat to sand dune phacelia.
Our Response: In the SSA report, we acknowledge that legal and
illegal off-highway vehicle (OHV) use can damage or kill sand dune
phacelia (Service 2021, p. 17). While OHV use is listed as a threat to
sand dune phacelia in various sources, documented impacts to the
species from OHVs are limited to individuals at a small number of sites
throughout its range, most notably in California. Further, the best
available information on OHV use and its impacts does not indicate that
the influence of this stressor is of the scope and magnitude sufficient
to cause population-level impacts to sand dune phacelia. We agree with
the commenter that recreational impacts, primarily from OHV use, can be
destructive to individuals, may be especially deleterious to small
populations, and may negatively affect sand dune phacelia habitat at
some sites, but it does not appear to be a key driver in sand dune
phacelia population decline; therefore, we did not carry it forward in
our analysis of current and future condition. As noted in this final
rule, any damage to the species on non-Federal land in violation of a
State law (such as damage caused by illegal vehicle trespass) is
prohibited by the 4(d) rule for sand dune phacelia.
(15) Comment: One commenter requested information on where the
agency responsible for managing the sand dune phacelia is located.
Our Response: U. S. Fish and Wildlife Service (Service) offices
responsible for promoting the recovery of endangered species within the
range of the sand dune phacelia are located in Arcata, California;
Newport, Oregon; and Portland, Oregon. These offices work with the
public and our partner agencies to restore habitat and populations of
listed species and provide consultation and technical assistance to
landowners and land managers wherever there is a Federal nexus.
(16) Comment: One commenter requested information on methods used
to remove European beachgrass and wanted to know what, if any, plans
the Service has to remove invasive species within sand dune phacelia
critical habitat.
Our Response: Commonly used techniques to remove European
beachgrass include hand-pulling, herbicide application, and mechanical
removal by machinery such as excavators or bulldozers. Removal
techniques are chosen based on the scale and objectives of the project,
and the accessibility and topography of the landscape. More information
on beachgrass removal can be obtained by contacting Service offices in
Arcata, California (https://www.fws.gov/office/arcata-fish-and-wildlife), and Newport, Oregon (https://www.fws.gov/office/oregon-fish-and-wildlife/visit-us/locations/newport-field-office). Invasive species
removal has been ongoing in some of the areas we are designating as
critical habitat, such as North Bandon, Lost Lake, Floras Lake, and
Tolowa Dunes, and the Service will continue to work with our
conservation partners on sand dune phacelia restoration activities as
funding allows.
(17) Comment: One commenter wanted to know if and how the Service
will post on the landscape within the critical habitat units
information related to the designation of critical habitat and the
listing of the sand dune phacelia.
Our Response: This rule makes final the designation of critical
habitat for the sand dune phacelia. For more information on this
critical habitat designation, please see ADDRESSES and FOR FURTHER
INFORMATION CONTACT, above. The Service does not have management
authority to require the physical posting of signs at critical habitat
units. The placement of informational signs at sites where critical
habitat is located is voluntary and under the purview of the landowner.
I. Final Listing Determination
Background
A thorough review of the taxonomy, life history, and ecology of the
sand dune phacelia is presented in the SSA report (Service 2021, pp. 7-
20). The full SSA report is available at https://www.regulations.gov
under Docket No. FWS-R1-ES-2021-0070.
Sand dune phacelia (Phacelia argentea), also known as silvery
phacelia, is an evergreen, herbaceous, flowering perennial in the
forget-me-not family (Boraginaceae), and its status as a taxonomically
valid species is well-accepted (Nelson and MacBride 1916, p. 34). It is
found only on coastal dune habitat in southern Oregon (Coos and Curry
Counties) and far northern California (Del Norte County) coasts. A
rangewide survey conducted in 2017 documented 26 occupied sites
(including 1 entirely introduced population), with 16 sites in Oregon
and the remaining 10 in California (Brown 2020a, unpaginated). Sand
dune phacelia occurs on the open sand above the high tide line, farther
inland on semi-stabilized and open dunes, and on coastal bluffs (Kalt
2008, p. 2). It has been described as occurring at elevations ranging
from 10 to 40 feet (3 to 12 meters) and on slopes less than 30 percent
composed of sand or (rarely) gravel (Rodenkirk 2019, p. 7).
Sand dune phacelia exhibits multiple adaptations for living in
drought-like, nutrient-poor areas with high winds, blowing sand, and
salt spray. It forms mats that reduce its exposure to wind and spray
and has silvery hairs on its leaves, which allow it to resist
desiccation in its harsh environment of blowing sand. Its tap root may
be
[[Page 57185]]
extensive, facilitating life in an environment of shifting sands and
maximizing the plant's ability to uptake water (Rodenkirk 2019, p. 12).
Sand dune phacelia occurs in sandy habitats that are sufficiently
free of competing vegetation to provide space and a high light
environment to allow for seedling establishment and growth (Kalt 2008,
p. 4; Meinke 2016, p. 2). Reproductively mature plants begin to bloom
in late April and May, with flowers persisting through August (Meinke
1982, p. 282). Sand dune phacelia appears to be largely incapable of
significant self-pollination (Meinke 2016, p. 3), relying upon
pollination by bees (Rittenhouse 1995, p. 8).
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and the implementing
regulations in title 50 of the Code of Federal Regulations set forth
the procedures for determining whether a species is an endangered
species or a threatened species, issuing protective regulations for
threatened species, and designating critical habitat for endangered and
threatened species. In 2019, jointly with the National Marine Fisheries
Service, the Service issued a final rule that revised the regulations
in 50 CFR part 424 regarding how we add, remove, and reclassify
endangered and threatened species and the criteria for designating
listed species' critical habitat (84 FR 45020; August 27, 2019). On the
same day, the Service also issued final regulations that, for species
listed as threatened species after September 26, 2019, eliminated the
Service's general protective regulations automatically applying to
threatened species the prohibitions that section 9 of the Act applies
to endangered species (84 FR 44753; August 27, 2019).
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 influence 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 the
threats on the species. 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 Act's definition of an ``endangered species'' or
a ``threatened species'' only after conducting this cumulative analysis
and describing the expected effect on the species now and in the
foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable 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. Our analysis of the foreseeable future
uses the best scientific and commercial data available and considers
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 (Service 2021, entire) documents the results of our
comprehensive biological review of the best scientific and commercial
data regarding the status of the sand dune phacelia, including an
assessment of the potential threats to the species. The SSA report does
not represent a decision by the Service on whether the species should
be proposed for listing as an endangered or threatened species under
the Act. However, it does provide the scientific basis that informs our
regulatory decisions, which involve the further application of
standards within the Act and its implementing regulations and policies.
To assess sand dune phacelia 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
[[Page 57186]]
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.
The following is a summary of the key results and conclusions from
the SSA report; the full SSA report can be found at Docket No. FWS-R1-
ES-2021-0070 on https://www.regulations.gov and at https://www.fws.gov/office/oregon-fish-and-wildlife.
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.
Individual Needs
Sand dune phacelia occurs in sandy habitats that are sufficiently
free of competing vegetation to allow for seedling establishment and
growth (Kalt 2008, p. 4; Meinke 2016, p. 2). Drought has been
implicated in low seedling recruitment and adult mortality (Rodenkirk
2019, p. 17), but precise moisture requirements are unknown.
Nutritional needs are evidently low, as sand is nutrient poor. Whether
sand dune phacelia is mycorrhizal (like many other dune species) is
unknown. A high light environment is important for sand dune phacelia
to complete its life cycle and reproduce. There is evidence that high
light exposure is needed for seed germination (Meinke 2016, p. 5) as
well as for seedling establishment and growth (Rodenkirk 2019, p. 19;
Jacobs 2019, p. 92).
Population Needs
To be adequately resilient, populations of sand dune phacelia need
sufficient numbers of reproductive individuals to withstand stochastic
events. Sufficient annual seed production and seedling establishment is
necessary to offset mortality of mature sand dune phacelia plants
within a population. Because large individuals produce the most seed
(Meinke 2016, p. 3), their loss is likely to have the greatest impact
on the overall population. However, no quantitative analyses have been
completed to determine minimum viable population size for sand dune
phacelia.
Sandy habitat that is relatively free of vegetative competition is
important for population persistence (Rodenkirk 2019, p. 16;
Rittenhouse 1995, p. 8). Historically, sand dunes shifted as dictated
by prevailing winds, tides, and storm surge, and these forces
maintained and supported native dune plant communities adapted to
highly dynamic environments. In the absence of sand-disturbing forces,
dune habitats are susceptible to rapid colonization by nonnative
species such as European beachgrass (Ammophila arenaria) and gorse
(Ulex europaea), as well as encroachment by native successional species
like shore pine (Pinus contorta ssp. contorta) (Meinke 2016, p. 2).
Sand dune phacelia is largely dependent upon pollination by bees.
In coastal dune habitats, bee abundance and species richness are
positively correlated with the presence of sand dune phacelia (Julian
2012, p. 3), and negatively correlated with cover of European
beachgrass and other invasive vegetation (Julian 2012, p. 21).
Species Needs
To maintain viability, sand dune phacelia should have a sufficient
number of sustainable populations that are well-distributed throughout
its geographic range and throughout the variety of ecological settings
in which the species is known to exist. Suitable habitat must be
available, and the number and distribution of adequately resilient
populations must be sufficient for the species to withstand
catastrophic events. No quantitative analysis exists upon which to
determine the minimum number of populations or the quantity of suitable
habitat necessary for sand dune phacelia to maintain viability as a
species.
The historical extent and distribution of sand dune phacelia across
the southern Oregon and far northern California coasts is not precisely
known. The species may have been more abundant, widespread, and
contiguously distributed on the landscape prior to the loss and
stabilization of sand dune habitats, off-highway vehicle use, and the
introduction of invasive species (particularly European beachgrass)
(Meinke 2016, p. 2). Due to its specialized adaptations to the sand
dune environment, it is unlikely that sand dune phacelia ever occurred
in a diverse range of ecological environments, and no information
exists on the genetics of sand dune phacelia that would allow an
assessment of whether populations demonstrate sufficient genetic
variability to persist under changing environmental conditions.
In summary, individual sand dune phacelia plants require sandy
substrate with limited vegetative competition for light, moisture, and
growing space. Populations must be sufficiently large and sustainable
to withstand stochastic events, have sufficient annual seed production,
and have an adequate pollinator community. For species viability, sand
dune phacelia must have sufficiently resilient populations that are
well distributed across its range and sufficient genetic diversity to
adapt to changing conditions (see table 1, below).
Table 1--Individual, Population, and Species Needs of Sand Dune Phacelia
----------------------------------------------------------------------------------------------------------------
Individuals Populations Species
----------------------------------------------------------------------------------------------------------------
Bare sandy substrate............... Sufficiently large number of reproductive Sufficient number of
individuals per population to withstand adequately resilient
stochastic events. populations well
distributed across the
range.
High light environment............. Sufficient annual seed production to offset Sufficient genetic
mortality. diversity to adapt to
change over time (no
information on genetics).
Water.............................. Dune/sandy habitat with low degree of invasive
species.
Pollinators........................ Sufficient abundance and diversity of
pollinators for outcrossing/optimal seed
production.
----------------------------------------------------------------------------------------------------------------
[[Page 57187]]
Threats
We considered a comprehensive set of sand dune phacelia stressors
that have been cited in the literature, in the data provided from our
partners, and in the petition (Center for Biological Diversity et al.
2014, entire). For each stressor we assessed whether there was
sufficient evidence that the influence of the stressor rose to the
scope and magnitude necessary to impact sand dune phacelia populations,
and thus be carried forward in our analysis of current and future
condition. We also examined positive influence factors (conservation
efforts) in a similar manner.
Invasive Plants
Invasive, introduced plant species are considered one of the most
influential stressors to sand dune phacelia and its habitat (Kalt 2008,
p. 7; Rodenkirk 2019, p. 6). European beachgrass, gorse, and other
invasive plant species outcompete sand dune phacelia throughout its
range (Rodenkirk 2019, p. 6). Introduced to the Pacific Northwest
region of the United States and California in the 1800s, European
beachgrass is an aggressive, perennial, rhizomatous grass. It was
extensively planted to stabilize sand and build dunes parallel to the
ocean shore to protect infrastructure from the effects of ocean storms
and tides (Hacker et al. 2011, p. 2; Oregon Department of Fish and
Wildlife (ODFW) 2016, pp. 6-7). Colonizing European beachgrass captures
sand with its deep roots and spreading shoots, forming dense
monocultures of grass that outcompete many native dune species,
including sand dune phacelia, for growing space, sunlight, and moisture
(Rittenhouse 1996, p. 3). The steep, heavily vegetated foredunes seen
today along much of the Oregon, and to a lesser extent California,
coastlines are the result of European beachgrass colonization
(Rittenhouse 1995, p. 9; Zarnetske et al. 2010, pp. 1-2). Dune
stabilization by European beachgrass also facilitates the establishment
and succession of native trees and shrubs that proliferate in the
absence of natural disturbance regimes, thereby resulting in the
conversion, and ultimate loss, of native dune habitat (Rittenhouse
1996, p. 3; Brown 2020a, unpaginated).
According to population surveys conducted in California, European
beachgrass poses the most consequential threat to sand dune phacelia
populations in that State (Jacobs 2019, p. 9; Imper 1987, p. 1; Kalt
2008, p. 7). In Oregon, the expansion of European beachgrass was a
likely factor in the extirpation of two sand dune phacelia populations
near Bandon (Christy 2007, p. 15), and adverse effects to sand dune
phacelia populations from European beachgrass have been documented at
multiple locations throughout its range (Rittenhouse 1995, p. 9; Kagan
and Titus 1998a, p. 10; Kagan and Titus 1998b, p. 3; Titus 1998, p. 12;
Rodenkirk 2019, entire; Brown 2020a, unpaginated).
We are also aware that under certain ocean shore alteration permits
in Oregon, landowners are required to stabilize the dune against
erosion in order to protect properties and shoreline. European
beachgrass is often used because it is readily available and effective
for that purpose (Bacheller 2021, pers. comm.). This permitting
requirement may promote the spread of European beachgrass, although to
our knowledge this is not currently occurring within the range of sand
dune phacelia.
Gorse is an introduced spiny shrub that forms impenetrable thickets
that overtake dune habitats. It is widely recognized as a threat to
native plant species and dune habitats (Christy 2007, entire; ODFW
2016, p. 7). Widespread in the Bandon, Oregon, area, it poses a threat
to sand dune phacelia populations in the northern region of its range
(Kagan and Christy 1998, p. 14; Christy 2007, p. 17; Kalt 2008 p. 8;
Rodenkirk 2019, p. 6; Brown 2020a, unpaginated). Gorse is also highly
flammable and produces copious amounts of seed that can persist in the
environment for 30 years or more (Goodwin 2018, p. 119).
There is broad consensus in the scientific literature and available
data that invasive species presently pose a population-level threat to
sand dune phacelia rangewide and will continue to do so into the
future.
Sea Level Rise
The best available data do not indicate that sea level rise is
currently influencing sand dune phacelia, and it is unknown how changes
in sea levels may have affected the species in the past. However,
because sea level rise is expected to increase in the future with
climate change, and near-shore species could be affected by sea level
rise and associated erosion and storm surge (Intergovernmental Panel on
Climate Change (IPCC) 2014, p. 67), we consider the impact of projected
sea level rise on sand dune phacelia in our analysis of future
conditions.
Small Population Size
We acknowledge that, prior to habitat fragmentation, many of the
populations, especially those south of the town of Bandon, Oregon, and
near Crescent City, California, were most likely functionally
continuous (Brown 2020b, pers. comm.). Our assessment of population
abundance and habitat quality from recent surveys indicates that the
number of populations of sand dune phacelia is reduced compared to
documented historical occurrences. Many of the remaining populations
are very small in size, and most populations are isolated from one
another by large tracts of unsuitable habitat, making genetic exchange
and dispersal among most populations unlikely without human
intervention. No information exists on the minimum number of
individuals required to support a sand dune phacelia population.
However, a population size of about 25 individuals appears to be
biologically relevant given the best available data. Specifically, the
current abundance of nearly every extant population falls either below
25 (1 to 24 individuals) or well above 25 (100 or more individuals),
with all populations with fewer than 25 individuals also undergoing
population decline (Brown 2020a, unpaginated). Therefore, in the
absence of any existing minimum viable population analysis to draw
upon, we assume that at least 25 individuals are necessary for sand
dune phacelia population viability. As such, low abundance was a factor
in our analysis of current condition, and we considered small
populations that currently support fewer than 25 individuals as
unlikely to persist in our future condition analysis.
We also considered several other potential threats to sand dune
phacelia, but because we found no evidence that these factors were
having an influence at the magnitude and scope to be impacting sand
dune phacelia populations, we did not include them in our analysis of
current and future condition. For example, damage to sand dune phacelia
due to off-highway vehicle (OHV) use has been documented but appears to
be limited to individual plants at a small number of sites, most
notably in California. Pedestrian or equestrian trampling may
negatively affect individual plants but may also benefit habitat
through light disturbance, and there is no evidence that this type of
activity is affecting sand dune phacelia populations. Coastal
development may have had historical impacts for the species but no
longer appears influential, and based on land ownership of extant
population sites, it seems unlikely to become influential in the
future. Because sand dune phacelia is largely reliant upon pollination
to successfully reproduce, pollinator decline is cited as a potential
threat to
[[Page 57188]]
sand dune phacelia, but we found no evidence that pollinator decline
was affecting sand phacelia populations. Additionally, we considered
livestock grazing and overutilization but found no evidence of negative
impacts to sand dune phacelia from these factors. Details on these
potential threats can be found in the SSA report (Service 2021, chapter
IV).
Summary of Threats
The primary threat currently acting upon sand dune phacelia
populations is that of invasive species, which is expected to continue
impacting the species into the future and was therefore included in our
analysis of current and future condition. In addition, our current and
future condition analysis included the consideration of sea level rise
and small population size. Other stressors mentioned above may act on
sand dune phacelia individuals, or have highly localized impacts, but
do not rise to the level of impacting populations. However, we
acknowledge that all stressors may exacerbate the effects of other
ongoing threats.
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. To assess the current and
future condition of the species, we undertake an iterative analysis
that encompasses and incorporates the threats individually and then
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.
Conservation Efforts and Regulatory Mechanisms
Sand dune phacelia is listed as threatened by the Oregon Department
of Agriculture (ODA) and has a State listing status of 1, indicating
that it is threatened or endangered throughout its range (Oregon
Biodiversity Information Center 2019, p. 33). Native plant species that
are listed as threatened or endangered in Oregon are protected on all
non-Federal public lands (Oregon Revised Statutes (ORS), volume 15,
title 46, chapter 564 at section 564.105 (ORS 564.105)). Any land
action on Oregon public lands that results, or might result, in the
collection or disturbance of a threatened or endangered species
requires either a permit or a consultation with ODA staff. The State
consultation process for public land managers requires a written
evaluation of projects that impact listed plant species, and the ODA
may recommend alternatives to avoid or minimize impacts to those
species; a formal consultation or permit may be required. Prohibitions
for listed plant species in the State of Oregon are provided by Oregon
Administrative Rules (OAR), chapter 603, division 73, at section 603-
073-0003, which states, ``Willful or negligent cutting, digging,
trimming, picking, removing, mutilating, or in any manner injuring, or
subsequently selling, transporting, or offering for sale any plant,
flower, shrub, bush, fruit, or other vegetation growing on the right of
way of any public highway within this state, within 500 feet of the
center of any public highway, upon any public lands, or upon any
privately owned lands is prohibited without the written permission of
the owner or authorized agent of the owner.'' Additionally, ORS
564.105(3) calls for the State to establish programs for the protection
and conservation of plant species that are threatened species or
endangered species, and the State participates in conservation
management actions as staffing and funding allows. In practice,
however, resource limitations often prevent implementation of the full
suite of affirmative management actions required to achieve the
recovery of State-listed plants. As an example, the eradication or
control of widespread invasive species such as gorse, one of the
primary threats to sand dune phacelia, would pose enormous resource
requirements that far exceed the State's capacity.
Oregon State Parks contain nearly 50 percent of all sand dune
phacelia populations rangewide. Under the master-plan level designation
for Oregon State parks, sites that contain listed species are
automatically placed in a category of administrative conservation
designation, which provides sand dune phacelia populations with
protection from development. While no formal conservation plans to
benefit sand dune phacelia are in place, invasive control actions at
several parks improve sand dune habitat and may assist with restoring
or maintaining suitable conditions for sand dune phacelia in the future
(Bacheller 2020, pers. comm.). Oregon State Parks are not supported by
tax dollars, as are other State agencies, but are supported by a
combination of State Park user fees, recreational vehicle license fees,
and a portion of State lottery revenues. As a result, Oregon State Park
budgets can be subject to significant fluctuations in revenue, which
can affect the agency's capacity to implement management actions for
conservation, such as habitat restoration for rare plants on State Park
lands.
In California, sand dune phacelia is designated as a California
Rare Plant with a rank of 1B.1, meaning that it is rare, threatened, or
endangered in California and elsewhere, and is seriously endangered in
California. Impacts to species of this rank or their habitat must be
analyzed during preparation of environmental documents relating to the
California Environmental Quality Act (CEQA). Under CEQA, State public
agencies (including State Parks) must provide measures to reduce or
avoid adverse environmental impacts of proposed projects, including
impacts to designated rare plants such as sand dune phacelia.
Designation as a California Rare Plant generally reduces negative
impacts to sand dune phacelia caused by development or other land use
programs and actions but does not ameliorate the primary threat to the
species, which is that of invasive species encroachment. All the plants
constituting California Rare Plant Rank 1B meet the definitions of the
California Endangered Species Act of the California Fish and Game Code
and are eligible for State listing, but sand dune phacelia is not
listed under the California Endangered Species Act.
The Federal Lands Policy and Management Act of 1976, as amended
(FLPMA; 43 U.S.C. 1701 et seq.), governs the management of public lands
administered by the Bureau of Land Management (BLM). Under FLPMA, the
BLM administers a special status species policy that calls for the
conservation of BLM special status species and the ecosystems upon
which they depend on BLM-administered lands. BLM special status species
are any species listed or proposed for listing under the Endangered
Species Act, or species designated as ``Bureau sensitive'' by the State
Director(s). Sand dune phacelia is designated as a Bureau sensitive
special status plant species and is thus the recipient of proactive
conservation efforts on BLM lands as staffing and resources allow. On
Federal lands in Oregon, the BLM regularly restores sand dune phacelia
habitat through the removal or control of invasive species at Lost
Lake, Floras
[[Page 57189]]
Lake, and Storm Ranch (Rodenkirk 2019; entire). The BLM is updating its
management plan for the New River Area of Critical Environmental
Concern, where the majority of sand dune phacelia populations on BLM
land occurs (Wright 2020, pers. comm.). The new plan will include an
emphasis on restoring native dune plant communities, including those
with sand dune phacelia.
Voluntary Conservation Efforts
Rangewide, the largest sand dune phacelia population is located on
private land at the Bandon Dunes Golf Resort, and while no formal
conservation agreements or commitments exist, the private landowner has
been actively maintaining sand dune phacelia habitat through ongoing
removal of European beachgrass and gorse (Gunther 2012, unpaginated;
Nice 2020, pers. comm.). In California, the South Lake Tolowa
Restoration effort has removed European beachgrass from approximately
25 ac (10 ha) at Tolowa Dunes State Park and the Lake Earl Wildlife
Area (Jacobs 2019, pp. 24-25). Conducted by California State Parks and
a volunteer group called the Tolowa Dunes Stewards (Jacobs 2019, p.
10), restoration efforts initiated in 2010 increased the sand dune
phacelia population from approximately 2,300 plants to 5,936 plants in
2017 (Brown 2020a, unpaginated). The South Lake Tolowa population is
now the largest in California, and the second largest rangewide.
Volunteers from the Tolowa Dunes Stewards have also restored 30 ac (12
ha) of habitat at the nearby East Dead Lake population via the removal
of European beachgrass (Jerabek 2020, pers. comm.). However, in the
absence of committed funding or agreements associated with these
restoration efforts, they are almost entirely reliant on grant funding
and volunteer efforts (Jerabek 2020, pers. comm.). The significant
gains made for sand dune phacelia at these sites could quickly be lost
without continuous maintenance efforts, given the aggressive nature of
European beachgrass and other invasive species.
Rangewide, actions to control invasive species have demonstrated
success in maintaining or increasing populations of sand dune phacelia
(Gunther 2012, unpaginated; Meinke 2016, p. 25; Jacobs 2019, p. 10;
Rodenkirk 2019; entire). Sand dune phacelia is a management-dependent
species, as restoration of dune habitat through ongoing control of
invasive species is essential to the continuing viability of sand dune
phacelia rangewide. Therefore, we considered the contribution of
habitat management actions, and in particular control of invasive
species, in our analysis of future conditions.
In addition to habitat restoration activities, augmentation of sand
dune phacelia populations using transplants has been carried out at
several sites by the BLM in partnership with Oregon State University
(Meinke 2016, entire) and the ODA (Brown 2017, entire). While
transplant efforts appear to be beneficial initially, transplant
mortality over time tends to be high as outplanted individuals succumb
to environmental conditions (Meinke 2016, p. 18). Refinements to sand
dune phacelia cultivation protocols are necessary to improve
transplanting success (Meinke 2016, entire; Brown 2017, p. 5).
Attempts are also underway by the BLM to enhance or establish
populations by directly seeding sand dune phacelia into suitable
habitat (Wright 2020, pers. comm.). The recently introduced population
at Storm Ranch is the largest population that occurs on Federal lands
(Rodenkirk 2019, p. 28). Attempts to establish the Storm Ranch
population began in 2012 with a seeding of 2 ac (0.8 ha) (Rodenkirk
2019, p. 28). Initial seedings were unsuccessful, but eventually a
population was established, with 1,596 plants counted in 2018. The
population drastically declined in 2019, with only 620 plants observed
(Rodenkirk 2019, p. 29). Long-term monitoring will assess whether this
seeded population can maintain viability.
Because of the high levels of plant mortality observed following
transplantation efforts, and the significant uncertainty as to whether
augmented or introduced populations may be capable of contributing to
the maintenance or enhancement of sand dune phacelia populations over
time, we did not include the seeded population at Storm Ranch, or
outplanted individuals at other sites, in our analysis of current and
future conditions. More information on this population, which is made
up entirely of individuals that resulted from a seeding effort, can be
found in the SSA report (Service 2021, p. 20, Table 3).
We determined that habitat restoration in the form of invasive
species removal is the primary conservation effort influencing sand
dune phacelia at the population level, and therefore carried it through
our analysis of future condition. Augmentation and reintroduction are
likely having a positive influence on sand dune phacelia, but we lack
evidence that these conservation efforts are having population-level
effects at this time.
Current Condition
Methodology
We delineated three representation units (Oregon-North, Oregon-
South, and California) based on geographic breaks in the distribution
of the species, because they could not otherwise be characterized by
marked differences in genetic makeup, phenotypic variation, habitats,
or ecological niches. No population viability assessment models exist
to inform the categorization of population condition for the sand dune
phacelia. Therefore, we used the best available science to score the
overall current condition of each population qualitatively as high,
moderate, or low, based upon our assessment of habitat condition,
population abundance, and population trend over time. The average score
was then used to rate the overall current condition of each population.
In 2017, sand dune phacelia populations were surveyed rangewide in
Oregon and California by the ODA's Plant Conservation Program (Brown
2020a, unpaginated). The 2017 survey enumerated current population
size, examined historical data to discern population trends, delineated
the area occupied, briefly described the habitat, and identified
stressors at each site. This effort provides the most current data
available on nearly every extant population of sand dune phacelia.
We did not include sites consisting of Phacelia species with
intermediate morphology (those that appear hybridized). These plants
were determined to most likely be crosses between sand dune phacelia
and P. nemoralis ssp. oregonensis (Brown 2020a, unpaginated; Meinke
1982, p. 260). In addition to different morphological attributes, the
intermediate plants occur in rockier habitats as compared to areas
occupied by sand dune phacelia, and rockier habitat is more indicative
of P. nemoralis. While we suspect that these plants are most likely
hybrids and not representatives of sand dune phacelia, no genetic
information is available upon which to base this conclusion. Whether
the presumed intergrades affect sand dune phacelia population viability
is unknown. More information on intermediate populations, as well as on
all populations, is included in the SSA report (Service 2021, entire).
Abundance categories were defined as ``low'' (100 or fewer plants),
``moderate'' (101-500 plants), and ``high'' (more than 500 plants).
These rating categories were derived to reflect relative abundance
[[Page 57190]]
between populations only, or an index of population size, because there
is no information available on the minimum number of individuals
necessary to maintain a viable population.
Habitat condition was scored based on the most recently available
observations at sand dune phacelia population sites. Because sand dune
phacelia habitat quality is highly influenced by invasive species, the
scores reflect the relative encroachment of invasive species at a given
site as reported by the 2017 rangewide survey (Brown 2020a,
unpaginated) and by the BLM. Quantitative data on invasive species in
sand dune phacelia populations, such as percent cover of invasive
species, are not available.
Population trend data were derived from the 2017 rangewide survey
(Brown 2020a, unpaginated) and reflect documented abundance data across
historical records. Trend data are necessarily coarse, as many
populations were rarely or sporadically monitored prior to 2017.
Increasing trends were rated as ``high,'' stable trends as
``moderate,'' and decreasing trends as ``low.''
The overall condition scores for all known extant populations of
sand dune phacelia are presented in table 2.
Table 2--Current Condition of Extant Sand Dune Phacelia Populations
[GRAPHIC] [TIFF OMITTED] TR22AU23.000
Current Resiliency, Redundancy, and Representation
Resiliency refers to the ability of populations to withstand
stochastic events, and we assessed the resiliency of each population
using the current habitat condition, population abundance, and
population trend. Of the 25 naturally occurring (we did not include the
1 entirely introduced population) extant sand dune phacelia populations
we assessed, 4 are currently in high condition, 4 are in moderate
condition, and 17 are in low condition (see table 2, above). Therefore,
resiliency is low for most populations rangewide, with 68 percent of
all populations rated with low overall condition (figure 1).
[[Page 57191]]
[GRAPHIC] [TIFF OMITTED] TR22AU23.001
Figure 1. Current condition of extant sand dune phacelia populations
across the three representation units (Oregon-North, Oregon-South, and
California).
Redundancy is a species' ability to withstand catastrophic events
and is determined by the number of its populations and their
distribution across the landscape.
Currently, approximately 33,858 naturally occurring sand dune
phacelia plants exist in 25 populations along roughly 100 miles (161
km) of coastline. Our analysis of current redundancy concludes that,
although most extant populations exhibit low resiliency, it is unlikely
that a single catastrophic event could eliminate all extant
populations, which are well-distributed throughout all representation
units, with the most robust populations located at either end of the
range (see figure 1, above).
Representation refers to the ability of a species to adapt to
change and is based upon considerations of phenotypic, genetic, and
ecological diversity, as well as the species' ability to colonize new
areas. There is little evidence of phenotypic variation among
individuals of sand dune phacelia, and no data are available on
potential genetic diversity. As a narrow endemic, sand dune phacelia is
highly specialized and restricted in its ecological niche, with all
occupied sites sharing similar features, and differences being largely
related to the population's distance from the ocean and position in
relation to the
[[Page 57192]]
dune (e.g., foredune, backdune). As such, sand dune phacelia
demonstrates little ecological diversity. However, the ability of a
species to adapt is gauged not only by diversity among individuals, but
also by its ability to colonize new areas. Currently, populations of
sand dune phacelia are patchy and dispersed, often isolated by large
tracts of intervening habitat made unsuitable by human development or
invasive species. The lack of available and unoccupied suitable habitat
leaves less opportunity for a species to exploit new resources outside
of the area it currently occupies and to adapt to changing conditions.
Further, the lack of connectivity between populations may result in
reduced gene flow and genetic diversity, rendering the species less
able to adapt to novel conditions.
The low level of phenotypic and ecological diversity demonstrated
within this species, as well as restricted opportunity for colonization
into new areas, indicates some limitations in representation for sand
dune phacelia. However, sand dune phacelia continues to be represented
by multiple populations distributed throughout the known historical
range of the species, although the resiliency of most of these
populations is low.
Future Condition
The intent of this analysis is to assess the viability of sand dune
phacelia into the future under various plausible future scenarios.
Further explanation on our methodology and assumptions for our future
condition analysis can be found in our SSA report (Service 2021,
chapter 6). We assessed the future condition of sand dune phacelia by
considering how invasive species competition, the effects of climate
change, small population size, and habitat management efforts may
affect populations over time. We considered the impacts of both habitat
management (invasive species removal) and climate change on the extent
of invasive species cover expected to occur in the future at each site.
Climate change is also projected to affect sea levels; thus, we
assessed each site for potential effects of inundation due to sea level
rise. In addition to the overall current condition categories of
``high,'' ``moderate,'' and ``low'' that were based on current habitat
and demographic factors, we included for the future condition analysis
the additional categories of ``very high,'' ``very low,'' and
``extirpated'' for populations where the overall condition was already
high but projected to improve, was already low but projected to
deteriorate further, or where the population (with fewer than 25
individuals) was expected to become extirpated, respectively.
Future Timeframe
We considered a timeframe for this analysis based upon the extent
into the future for which we could reasonably forecast the impact of
the threats on the species and the species' response to those threats,
given the data and models available to us. We determined that the
period of time from the present to about mid-century to be the
timeframe over which we could most reliably project the future
condition of the sand dune phacelia.
Climate model projections are fairly aligned until about mid-
century when they start to diverge more, as this is the timeframe
during which our near-future carbon emissions begin to manifest in
projections of future climate. Although all projections into the future
show global temperature and sea level rise increasing, our uncertainty
in the magnitude of changes expected and the impacts of these changes
on sand dune phacelia becomes much greater at this point. While we can
be fairly confident in projecting drought and sea level rise out past
mid-century, we found that these threats were not likely to have
population-level impacts or drive sand dune phacelia viability into the
future. Instead, we found that the primary threat to sand dune phacelia
is habitat loss due to invasive species, and while the proliferation of
invasive species will likely be influenced by climate change into the
future, the impact of climate change on this threat is much less
predictable. Most of the literature indicates that climate change will
exacerbate the problem of invasive species in general. However, the
extent to which this will occur with European beach grass and gorse
(the invasive species most prevalent in sand dune phacelia habitat),
and to what extent habitat management efforts will mitigate the impacts
of invasive species to sand dune phacelia, are less clear into the
future especially the farther out we try to predict. As such, we
determined that we could confidently project the population-level
threats, including that of invasive species as influenced by climate
change, and the species' response to those threats out to mid-century,
or approximately 2060.
Climate Change
Global climate models project changes in global temperature and
other associated climatic changes based on potential future scenarios
of greenhouse gas concentrations in the atmosphere (i.e.,
representative concentration pathways, or RCPs). RCP 4.5 assumes major
near-future cuts to carbon dioxide emissions, and RCP 8.5 assumes that
current emissions practices continue with no significant change
(Terando et al. 2020, p. 10). Thus, these RCPs represent conditions in
the upper and lower ends of the range of what can reasonably be
expected for the future effects of climate change (Terando et al. 2020,
p. 17).
Warming temperatures have already been documented and are expected
to continue in the Pacific Northwest, although changes will be somewhat
muted in coastal areas (Mote et al. 2019, summary p. 1). There have
been no clear discernible trends in annual precipitation, although
there will likely be modest increases in the winter and decreases of
similar scale in the summer (Mote et al. 2019, summary p. 1). Warming
summer temperatures paired with decreased summer precipitation may lead
to increased drought risk, which has the potential to cause stress,
desiccation, and even mortality in plant communities. Although
increased temperatures and decreased precipitation during the summer
growing season are likely to have negative effects on sand dune
phacelia, whether these changes will result in population-level impacts
in the future timeframe under consideration is unclear given the
available data. Therefore, we were unable to analyze the impacts of
drought in our future scenarios.
Sea level rise projections in 1-foot increments were available at
three locations that span the entire range of sand dune phacelia (Coos
Bay and Port Orford in Oregon, and Crescent City in California). One
foot (0.3 meter) of sea level rise is projected to occur under RCP 8.5
by 2060 in Oregon and by 2070 in northern California but is not
projected to occur within this timeframe under RCP 4.5 (Climate Central
2020, unpaginated). According to the sea level rise modeling tool we
used (National Oceanographic and Atmospheric Administration 2020,
unpaginated), this amount of sea level rise under RCP 8.5 is not
projected to inundate the areas currently occupied by sand dune
phacelia. We also note that projections of two feet (0.6 meters) of sea
level rise are not expected until 2080 at the earliest and were very
similar to one-foot (0.3 meter) projections in terms of area inundated
at sand dune phacelia sites; only a few sand dune phacelia populations
would, to a very minor degree, be impacted by inundation caused by two
feet of sea level rise (Service 2021, appendix 2). Further details of
the sea level rise analysis we conducted, including potential indirect
[[Page 57193]]
effects such as erosion and storm surge that we were unable to project,
are available in the SSA report (Service 2021, chapter 6, appendix 2).
Invasive Species
As noted earlier, invasive plant species, in particular European
beachgrass and gorse, unequivocally represent the primary driver of the
sand dune phacelia's status presently and into the future. Although
some uncertainty remains as to how climate change will impact
biological invasions into the future, it is widely agreed that changing
climate, especially temperature and precipitation regimes, will
exacerbate the invasions of many nonnative species under future
conditions (Gervais et al. 2020, p. 1).
Although relatively few, some studies have demonstrated the impacts
of climate change on invasive species by modeling the abundance,
distribution, spread, and impact of invasive species in the Pacific
Northwest relative to climate model projections (Gervais et al. 2020,
p. 1). Further, there is evidence that climate-induced expansions of
invasive species are already underway in this region (Gervais et al.
2020, p. 1). The best available information at this time does not allow
us to quantify the magnitude of these expansions, nor does it allow us
to predict how the population dynamics of sand dune phacelia at
occupied sites may be affected. However, we expect that the pressure
currently exerted upon sand dune phacelia populations due to
encroachment by invasive plant species is likely to increase into the
future in response to climate change. We expect the negative impacts to
sand dune phacelia from climate-related invasive species expansion to
be most evident under the higher emissions scenario (RCP 8.5).
Small Population Size
We considered populations with fewer than 25 individuals likely to
become extirpated in the future. While small population size does not
appear to be a threat at the species level because there are multiple
adequately sized populations found throughout the range of the species,
very small populations are at elevated risk for local extirpation, and
thus small population size is a threat at the population level. None of
the sites with very small populations currently have habitat management
practices to remove invasive species, and we did not assume new efforts
would be initiated but acknowledge that extirpation of very small
populations could be prevented with management intervention.
Habitat Management
As previously described, the removal of invasive species has been
shown to be the most effective strategy for maintaining and increasing
populations of sand dune phacelia. Because there are no management
plans in place at any of the population sites that would ensure the
continuation of or initiate new habitat management practices, and
funding for these practices is tenuous, we assumed that either habitat
management currently in place would continue or cease, but that
management efforts would not increase. We also assumed that populations
with current management practices in place would improve in condition
into the future with continued management, and those without management
currently in place would decline in condition into the future.
Future Scenarios
We considered two plausible future scenarios in our analysis of
future viability of the sand dune phacelia. Scenario 1 assumes that
current habitat management actions to control invasive species will
continue to occur and will continue to benefit sand dune phacelia into
the future. Thus, the condition of populations of sand dune phacelia at
sites that are currently receiving habitat management will continue to
improve into the future. Conversely, under this scenario we assume that
if no actions to control invasive species are currently being
implemented in or adjacent to sand dune phacelia populations, no new
efforts are likely to be initiated, and habitat conditions will
subsequently worsen over time. Scenario 1 also assumes that RCP 4.5 is
in effect, with associated effects to sea level rise and a moderate
increase in invasive species expansion. Scenario 2 assumes that any
habitat management actions that are presently occurring will be
discontinued over time, and therefore no habitat management actions to
control invasive species are in effect in the future. Scenario 2 also
assumes that RCP 8.5 is in effect, with the associated effects to sea
level rise and a greater increase in invasive species expansion.
Therefore, these two scenarios represent our best understanding of the
most optimistic and the least optimistic of plausible futures we can
expect for sand dune phacelia.
Future Resiliency, Redundancy, and Representation
Rangewide, we conclude that under Scenario 1, nearly half (12 of
25) of all sand dune phacelia populations would become extirpated by
2060, and many of the remaining populations (7 of 13) would deteriorate
to low or very low condition. However, the condition of those
populations that currently benefit from the active control of invasive
species would increase over time due to improved habitat conditions,
such that five populations would be in high or very high condition
under Scenario 1. Future population resiliency fares worse under
Scenario 2, with well over half of all populations (17 of 25, or 68
percent) becoming extirpated, and all remaining populations projected
to be in low or very low condition (see table 3, below). Thus, under
either future scenario we considered, many populations will become
extirpated, and future resiliency will be low among most remaining
populations.
Table 3--Future Condition of Extant Sand Dune Phacelia Populations
[[Page 57194]]
[GRAPHIC] [TIFF OMITTED] TR22AU23.002
Future redundancy of the sand dune phacelia declines under both
future scenarios we considered. Under Scenario 1, only 13 of the 25
extant populations would exist rangewide by 2060, with about half of
those in low or very low condition. However, five populations would
remain in high or very high condition, with at least one population
considered in very high condition in each representation unit. In the
event of a catastrophe in a part of its range, sand dune phacelia would
likely continue to exist in other parts of its range, albeit in low
numbers and condition. Under Scenario 2, only eight populations are
estimated to remain extant in 2060 and would be evenly split between
low and very low condition. Due to the greatly reduced number of
remaining populations (mostly with low resiliency) under either future
scenario, sand dune phacelia redundancy will be low, rendering the
species vulnerable to catastrophic events within the future timeframe
we considered.
Representation is not expected to change significantly under either
future scenario we considered. All representation units will retain
populations, and each will have at least one population in very high
condition under Scenario 1. However, only 13 populations are projected
to exist rangewide, with over half (54 percent) being in very low or
low condition. Under Scenario 2, all populations are in very low or low
condition, with very few populations existing in any of the
representation units. Fewer populations in the future would provide
less opportunity for diversity among individuals, with fewer
individuals available to contribute to the adaptive capacity of the
species. Isolation is also expected to increase in the future with the
expected reduction in size and number of populations on the landscape,
further decreasing the likelihood of genetic exchange. These factors
may result in a modest reduction in representation into the future, but
overall, populations (though fewer) will still be distributed across
the range of the species providing adequate representation.
Overall, we expect the viability of the species to decline by
varying degrees under the future scenarios considered. Persistence of
the two populations that contain 89 percent of known individuals, even
under the more favorable future scenario considered, appears to depend
upon continued removal of introduced, invasive species. By mid-century
(roughly 2060), we expect the sand dune phacelia will still occur on
the landscape, but likely with
[[Page 57195]]
a significantly reduced number of sufficiently resilient populations
that are even more sparsely distributed across the historical range of
the species.
Determination of Sand Dune Phacelia's Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an ``endangered species'' or
a ``threatened species.'' The Act defines an ``endangered species'' as
a species in danger of extinction throughout all or a significant
portion of its range, and a ``threatened species'' as a species likely
to become an endangered species within the foreseeable future
throughout all or a significant portion of its range. The Act requires
that we determine whether a species meets the definition of an
``endangered species'' or a ``threatened species'' because of any of
the following factors: (A) The present or threatened destruction,
modification, or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence.
Status Throughout All of Its Range
We carefully assessed the best scientific and commercial
information available regarding the past, present, and future stressors
(and their cumulative effect) to the sand dune phacelia. The potential
stressors we considered were invasive species encroachment and
competition (Factors A and E), recreational impacts from OHV use and
trampling (Factor A), coastal development (Factor A), livestock grazing
(Factor A), climate change impacts including sea level rise and drought
(Factor E), small population size (Factor E), and pollinator decline
(Factor E). We also evaluated existing regulations and voluntary
conservation efforts (Factor D). There is no evidence that
overutilization (Factor B) or disease and predation (Factor C) are
impacting the sand dune phacelia. We evaluated each potential stressor
to determine which stressors were likely to be drivers of the species'
current and future condition, and found that invasive species, climate
change, and small population size are the population-level threats to
the species.
There are 25 naturally occurring, extant populations of the sand
dune phacelia. Nearly 70 percent (17) of these populations are
currently in low condition according to our assessment, and nearly half
(12) of the populations have fewer than 25 individuals. However, extant
populations are distributed across the historical range of the species,
and there remains at least one highly resilient population and one
moderately resilient population in each of the three representative
areas (in the northern, middle, and southern regions of the range).
Populations that are currently in low condition, many of which have
fewer than 25 individuals, are at risk of extirpation without
management intervention. Many of these populations, especially those
with very low abundance, may never be likely to contribute meaningfully
to the species' viability. However, even without the small (fewer than
25 individuals) populations on the landscape, the species would still
maintain 13 populations across the range, with 8 of those populations
being in moderate or high condition and evenly distributed across all 3
representation units. The distribution and maintenance of sufficiently
resilient populations, albeit few of them, across the historical range
of the species indicates an adequate degree of redundancy, making it
unlikely that a single catastrophic event would lead to the extirpation
of all extant populations.
While we have little evidence of diversity among members of the
species, the sand dune phacelia is a relatively localized endemic
inhabiting a narrow ecological niche, so broad diversity is not
necessarily expected. Populations of the sand dune phacelia remain
distributed across the three representation units and throughout the
species' known historical range, and therefore the species is currently
represented across the breadth of any ecological diversity that exists
within its range.
We know that the most influential threat to the sand dune phacelia,
encroachment by invasive species (Factors A and E), can be successfully
mitigated with active habitat management. Effective habitat management
is currently ongoing at several population sites, including at the
largest population strongholds at the northern and southern extents of
the species' range (Bandon Preserve and Golf Course in Oregon and
Tolowa Dunes in California). It is also possible that if management
efforts continue or increase, they could promote the increase and
expansion of populations into the future.
Because of the presence of multiple populations in moderate to high
condition (or with adequate resiliency) distributed across all regions
of the species' historical range (redundancy) and across the breadth of
ecological conditions inhabited by the species (representation), as
well as the success of current conservation efforts to mitigate the
primary threat (invasive species) at population strongholds, we
determined that the sand dune phacelia is not currently in danger of
extinction throughout its range.
Upon determining that the sand dune phacelia is not at risk of
extinction now, we consider whether it is likely to become endangered
in the foreseeable future. According to our assessment of plausible
future scenarios, we conclude that the species is likely to become
endangered within the foreseeable future throughout all of its range
through decreased resiliency, redundancy, and representation. For the
purposes of this determination, the foreseeable future is considered
out to approximately 2060, based on the timeframe for which we could
most reliably project the population-level threats to sand dune
phacelia and the species' response to those threats. The primary threat
to sand dune phacelia is that of invasive species, which will likely be
influenced in the future by both climate change (which exacerbates the
threat) and by habitat management efforts (which mitigate the threat),
and the influence of these factors on the impact of the primary threat
to sand dune phacelia populations becomes progressively more difficult
to predict the farther out into the future we project. As such, we
determined that we could confidently project the population-level
threats, including that of invasive species as influenced by climate
change, and the species' response to those threats out to approximately
2060.
As previously noted, the primary driver of the sand dune phacelia's
status is habitat loss due to encroachment and competition by invasive
species (Factors A and E). This species is considered management-
dependent, relying on active and continuous removal of invasive species
such as European beachgrass and gorse to maintain habitat conditions to
support the sand dune phacelia. Invasive species removal, especially
that which is effective and consistent enough to maintain sand dune
phacelia populations over time, is costly and labor-intensive, and
requires a significant commitment of resources. Currently, while
invasive species removal efforts are responsible for maintaining the
few (8 of 25) sand dune phacelia populations that are in moderate to
high condition, no formal
[[Page 57196]]
commitments or agreements are in place to continue these efforts, and
many of these efforts are dependent upon the will and resources of
volunteer groups or private landowners. The remaining strongholds of
sand dune phacelia would likely decline quickly in the absence of
effective habitat management efforts that are currently ongoing.
Specifically, in the future scenario we considered that includes the
cessation of all management efforts into the future, our analysis
projects the extirpation of most (17) populations in the future, with
those remaining (8) declining to low or very low condition.
Climate change (Factor E) may elevate the risk of drought, lead to
increased erosion caused by sea level rise and the increased frequency
and magnitude of storm surge, or potentially result in other negative
influences to the sand dune phacelia, but we were unable to reliably
project how these influences would impact the species in our future
analysis. Climate change is expected to exacerbate the threat of
invasive species into the future, regardless of which emissions
scenarios we consider. Given the severity of the threat of invasive
species and the tenuous nature of habitat management into the future,
the synergistic effects of climate change and invasive species on the
sand dune phacelia could be significant regardless of the magnitude of
climate change impacts on their own.
Small population size (Factor E) is a threat that affects nearly
half of the extant sand dune phacelia populations. These 12 populations
have fewer than 25 individuals and have no programs in place or
conservation efforts ongoing to ameliorate the threat of invasive
species, which is the primary cause of low sand dune phacelia abundance
at these sites. Without the implementation of habitat management
practices at these sites, we expect these very small populations to
become extirpated in the future.
Regulatory mechanisms (Factor D) and voluntary conservation efforts
by the States of Oregon and California, the BLM, volunteer groups, and
private landowners provide benefit to the sand dune phacelia at the
affected population sites, mostly through invasive species removal
efforts and to some degree augmentation and reintroduction efforts.
However, while these efforts have helped reduce the impacts of invasive
species and small population size locally at certain populations, these
influences remain prominent threats to the sand dune phacelia and
continue to affect the species as a whole.
Due to the continuation of threats at increasing levels into the
future, we anticipate a significant reduction in the distribution of
the sand dune phacelia as the result of the extirpation of multiple
populations. Even in the optimistic future scenario we considered,
nearly half of the extant populations of sand dune phacelia would
likely become extirpated, with only six populations remaining with
moderate to high/very high resiliency. The less optimistic future
projection would result in most populations becoming extirpated, and
any remaining populations would be in low or very low condition. These
types of declines illustrate a loss of resiliency among most
populations, as well as a significant reduction in redundancy and
representation, with fewer populations on the landscape to withstand
catastrophic events and maintain adaptive capacity. Remaining
populations in either future scenario will have lower resiliency,
leading to lower overall redundancy and representation. Even in the
optimistic future scenario, the species will have low viability and is,
therefore, at risk of becoming endangered within the foreseeable
future.
Thus, after assessing the best available information, we conclude
that the sand dune phacelia is likely to become in danger of extinction
within the foreseeable future throughout all of its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
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 Everson, 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 sand dune phacelia, we choose to address
the status question first--we consider information pertaining to the
geographic distribution of both the species and the threats that the
species faces to identify any portions of the range where the species
is endangered.
We evaluated the range of the sand dune phacelia 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 sand dune phacelia, 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
threats of invasive species and of climate change, including cumulative
effects.
The threat of invasive species is equally pervasive throughout the
range of sand dune phacelia, and sand dune phacelia's response to
invasive species encroachment is consistent across its range. The type
of invasive species may vary regionally (gorse, for example, is more
prevalent in the northern extent of the range), but the threat of
invasive species encroachment in general, and its effect on sand dune
phacelia, are equal in severity throughout the range. Similarly, both
the efficacy of mitigating the threat of invasive species through
habitat restoration and the uncertainty related to funding availability
to do so appear consistent throughout the species' range.
The effects of climate change appear to be similar across the range
of sand dune phacelia. Increases in temperature and changes in seasonal
precipitation that could increase the risk of drought in the future are
expected to occur to a similar magnitude and with similar effect across
the range of the species. Storm surge, which can lead to flooding and
erosion at coastal sites, is also expected to increase with climate
change, and we have no data to indicate that these impacts, and the
species'
[[Page 57197]]
response to these impacts, would not be approximately equivalent across
the range of sand dune phacelia. Sea level rise projections are also
nearly identical across the coastal habitat occupied by sand dune
phacelia. Specifically, RCP 8.5 indicates that the impacts of sea level
rise are essentially equal across all sites: Within the foreseeable
future all sites will experience a 1-foot (0.3-m) or less increase in
sea level rise, which will not inundate any of the population sites.
The synergistic effects of climate change and invasive species, with
biological invasions being facilitated by climate change, are also
expected to occur in approximately equal magnitude and effect
throughout the range of the sand dune phacelia and likely represent the
more influential effect of climate change on the species given that sea
level rise is not projected to inundate any extant population sites.
The threat of small population size also appears to be distributed
throughout the range, with low-abundance populations throughout the
range and distributed across all three representation units. Further,
there is no indication that sand dune phacelia's response to small
population size differs across the range of the species.
Our viability analysis incorporated the impact to sand dune
phacelia of these population-level threats individually, as well as the
degree to which they collectively influenced risk to the species, and
as such assesses cumulative effects of these threats to the species.
While there may be some variation in the source and intensity of
each individual threat at each population location, we found no portion
of the sand dune phacelia's range where the threats are impacting
individuals differently from how they are affecting the species
elsewhere in its range, such that the status of the species in that
portion differs from any other portion of the species' range.
Therefore, no portion of the species' range provides a basis for
determining that the species is in danger of extinction in a
significant portion of its range, and we determine that the species is
likely to become in danger of extinction within the foreseeable future
throughout all of its range. This does not conflict with the courts'
holdings in Desert Survivors v. Department of the Interior, 321 F.
Supp. 3d 1011, 1070-74 (N.D. Cal. 2018) and Center for Biological
Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 2017) because,
in reaching this conclusion, we did not apply the aspects of the Final
Policy, including the definition of ``significant'' that those court
decisions held to be invalid.
Determination of Status
Our review of the best available scientific and commercial
information indicates that the sand dune phacelia meets the Act's
definition of a threatened species. Therefore, we are listing the sand
dune phacelia 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 species 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 consists of preparing draft and final recovery
plans, beginning with the development of a recovery outline and making
it available to the public within 30 days of a final listing
determination. 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
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 Oregon
Fish and Wildlife 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.
Following publication of this final rule, funding for recovery
actions will be available from a variety of sources, including Federal
budgets, State programs, and cost-share grants for non-Federal
landowners, the academic community, and nongovernmental organizations.
In addition, pursuant to section 6 of the Act, the States of Oregon and
California will be eligible for Federal funds to implement management
actions that promote the protection or recovery of the sand dune
phacelia. 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 the sand dune phacelia. 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 listed as an endangered or
threatened species and with respect to its critical habitat, if any is
designated. Regulations implementing this interagency
[[Page 57198]]
cooperation provision of the Act are codified at 50 CFR part 402.
Section 7(a)(4) 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 any endangered or threatened
species or destroy or adversely modify its critical habitat. If a
Federal action may affect a listed species or its critical habitat, the
responsible Federal agency must enter into consultation with the
Service.
Federal agency actions within the species' habitat that may require
conference or consultation or both as described in the preceding
paragraph include management and any other landscape-altering
activities on Federal lands administered by the BLM.
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 final listing
on proposed and ongoing activities within the range of a listed
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 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.
[She] 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), we have developed a
rule that is designed to address the sand dune phacelia's conservation
needs. Although the statute does not require us 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 sand dune phacelia. As discussed above under
Summary of Biological Status and Threats, we have concluded that the
sand dune phacelia is likely to become in danger of extinction within
the foreseeable future primarily due to encroachment by invasive
species, small population size, and the effects of climate change. The
provisions of this 4(d) rule will promote conservation of the sand dune
phacelia by encouraging management of the landscape in ways that meet
the conservation needs of the sand dune phacelia. The provisions of
this rule are one of many tools that we will use to promote the
conservation of the sand dune phacelia.
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.
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 Final 4(d) Rule
This 4(d) rule will provide for the conservation of the sand dune
phacelia by prohibiting the following activities applicable to an
endangered plant, except as otherwise authorized or permitted: import
or export; certain acts related to removing, damaging, and destroying
on areas under Federal jurisdiction or on any other area in knowing
violation of any State law or regulation; delivery, receipt, carriage,
transport, or shipment in interstate or foreign commerce in the course
of commercial activity; and sale or offering for sale in interstate or
foreign commerce.
As discussed above under Summary of Biological Status and Threats,
encroachment by native and nonnative, invasive species (Factors A and
E), small population size (Factor E), and climate change (Factor E)
affect the status of the sand dune phacelia. Additionally, a range of
activities have the potential to negatively affect
[[Page 57199]]
individual sand dune phacelia, including recreational impacts such as
off-road vehicle use and inadvertent trampling through pedestrian or
equestrian activities. To protect the species from these impacts, in
addition to the protections that apply to Federal lands, the 4(d) rule
prohibits a person from removing, cutting, digging up, or damaging or
destroying the species on non-Federal lands in knowing violation of any
law or regulation of any State or in the course of any violation of a
State criminal trespass law. As most populations of the sand dune
phacelia occur off Federal land, these protections in the 4(d) rule are
key to its effectiveness. For example, any damage to the species on
non-Federal land in violation of a State off-highway vehicle law is
prohibited by the 4(d) rule, as is any damage to the species due to
criminal trespass on non-Federal lands. Regulating these activities
will help preserve the species' remaining populations, slow the rate of
decline, and decrease synergistic, negative effects from other
stressors. The 4(d) rule will help in the efforts to recover sand dune
phacelia by limiting specific actions that damage individual
populations.
We may issue permits to carry out otherwise prohibited activities,
including those described above, involving threatened plants under
certain circumstances. 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 that section unless a species-
specific rule applicable to the plant is provided in sections 17.73 to
17.78. Therefore, permits for threatened plant 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) do not apply to any plant listed as
a threatened species after September 26, 2019. As a result, for
threatened plant species listed after that 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 section 17.72 unless a
species-specific 4(d) rule provides otherwise would likely avoid
substantial duplication. 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 Service in implementing all aspects of the Act.
In this regard, section 6 of the Act provides that the Service 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 that 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 sand dune
phacelia that may result in otherwise prohibited activities without
additional authorization.
The Service recognizes the beneficial and educational aspects of
activities with seeds of cultivated plants, which generally enhance the
propagation of the species and, therefore, would satisfy permit
requirements under the Act. The Service intends to monitor the
interstate and foreign commerce and import and export of these
specimens in a manner that will not inhibit such activities, providing
the activities do not represent a threat to the survival of the species
in the wild. In this regard, seeds of cultivated specimens will not be
subject to the prohibitions above, provided that a statement that the
seeds are of ``cultivated origin'' accompanies the seeds or their
container (e.g., the seeds could be moved across State lines or between
territories for purposes of seed banking or use for outplanting without
additional regulations).
Nothing in this 4(d) rule changes 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 the sand dune
phacelia. However, interagency cooperation may be further streamlined
through planned programmatic consultations for the species between
Federal agencies and the Service, where appropriate.
III. Critical Habitat
Background
Section 4(a)(3) of the Act requires that, to the maximum extent
prudent and determinable, we designate a species' critical habitat
concurrently with listing the species. Critical habitat is defined in
section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
This critical habitat designation was proposed when the regulations
defining ``habitat'' (85 FR 81411; December 16, 2020) and governing the
4(b)(2) exclusion process for the Service (85 FR 82376; December 18,
2020) were in place and in effect. However, those two regulations have
been rescinded (87 FR 37757; June 24, 2022, and 87 FR 43433; July 21,
2022) and no longer apply to any designations of critical habitat.
Therefore, for this final rule designating critical habitat for the
sand dune phacelia, we apply the regulations at 424.19 and the 2016
Joint Policy on 4(b)(2) exclusions (81 FR 7226; February 11, 2016).
Conservation, as defined under section 3 of the Act, means the use
of all methods and procedures that are
[[Page 57200]]
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 also does not allow the
government or public to access private lands. Such designation does not
require implementation of restoration, recovery, or enhancement
measures by non-Federal landowners. 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).
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. For this final rule, we did not identify any unoccupied areas
that may qualify as units of critical habitat.
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 the 4(d) rule. 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 the 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 (HCPs), or other
species conservation planning efforts if new information available at
the time of those planning efforts calls for a different outcome.
Physical or Biological Features Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and that
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, alkaline
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,
[[Page 57201]]
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 essential to support the life history of the species.
In considering whether features are essential to the conservation
of the species, we 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, space
for individual and population growth and for normal behavior; food,
water, air, light, minerals, or other nutritional or physiological
requirements; cover or shelter; sites for breeding, reproduction, or
rearing (or development) of offspring; and habitats that are protected
from disturbance.
The following features are essential to the conservation of sand
dune phacelia:
Sandy Coastal Dune Habitat With Adequate Light Exposure, Water, and
Growing Space
Sandy coastal dune habitat above the high tide line that provides a
high light environment, room for growth, and adequate moisture is
required to support sand dune phacelia populations. Sandy areas must
have open (unvegetated) space within them to accommodate population
expansion. The physical features of sunlight, space, and water are
essential for seedling establishment and growth, and facilitate the
development of large, mature plants that produce copious amounts of
seed. While we lack information on specific quantities associated with
this need (such as maximum percent canopy cover that the species can
tolerate), it is clear that sandy habitats that provide the essential
features of sunlight, space, and water for the sand dune phacelia tend
to have lower cover of competitive invasive species, particularly
European beachgrass and gorse.
Adequate Pollinator Community
A sufficient abundance of pollinators, particularly leafcutter bees
(Family: Megachilidae), are required for genetic exchange among sand
dune phacelia individuals. The sand dune phacelia appears to be largely
incapable of significant self-pollination (Meinke 2016, p. 3), relying
primarily on leafcutter bees (Anthidium palliventre) and bumblebees
(Bombus spp.) for pollination. Ants (Formica spp.) and beetles
(unidentified spp.) have also been observed in association with sand
dune phacelia flowers, but it is unclear how effective they are at
pollination (Rittenhouse 1995, p. 8).
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential to
the conservation of the sand dune phacelia from studies of the species'
habitat, ecology, and life history as described below. Additional
information can be found in the SSA report (Service 2021, entire,
available on https://www.regulations.gov under Docket No. FWS-R1-ES-
2021-0070). We have determined that the following physical or
biological features are essential to the conservation of sand dune
phacelia:
Sandy coastal dune habitat above the high tide line that
provides a high light environment, room for growth, and adequate
moisture; and
A sufficiently abundant pollinator community (which may
include leafcutter bees and bumble bees) for pollination and
reproduction.
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. In the case of the sand dune phacelia, these essential
features include sandy dune habitat with high light exposure and
adequate moisture and unvegetated space, as well as a sufficiently
large and diverse pollinator community, and a minimum of 25
reproductively mature sand dune phacelia plants within dispersal
distance of one another to sustain a population.
These features essential to sand dune phacelia conservation may
require special management considerations or protection to reduce the
threat of invasive species encroachment, and to withstand climate
change effects such as drought and sea level rise. In addition,
localized stressors related to recreational activity, such as off-road
vehicle use and pedestrian or equestrian trampling, may also need to be
mitigated by special management practices to maintain the sandy open
dune habitat that sand dune phacelia populations require.
Management activities that could ameliorate these threats include,
but are not limited to: (1) Habitat restoration activities in sand dune
habitat that include the removal of invasive species such as nonnative
European beachgrass and gorse, or native successional species such as
shore pine; (2) efforts to restore a diverse and abundant pollinator
community, such as through restricting land management practices that
harm pollinator species, or through support of a diverse native nectar
plant community; (3) access restrictions and enforcement for off-road
vehicle use in areas occupied by the sand dune phacelia; and (4)
recreational restrictions to prevent damage to sandy coastal dune
habitat and the pollinator communities that support the species by
pedestrians or equestrians.
These management activities will protect the physical or biological
features essential for the conservation of the sand dune phacelia by
providing native sandy dune habitat that allows for sand dune phacelia
population growth and expansion, supporting the pollinator community
that enables sand dune phacelia reproduction, protecting sand dune
phacelia populations from trampling and crushing, and maintaining an
adequate number of sand dune phacelia individuals necessary to sustain
viable populations.
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 we have
not identified any unoccupied areas that meet the definition of
critical habitat. We determined that the areas currently occupied by
populations of sand dune phacelia made up of at least 25 individuals,
if recovered, will be sufficient to conserve the species. The extant
populations with at least 25 individuals are distributed across the
three representation units and across the historical range of the
species and, therefore, also span any ecological diversity that may
exist within the species' range. Therefore, if these populations were
recovered to sufficient resiliency, they will provide adequate
redundancy and representation for the species. Because currently
occupied areas are sufficient to recover the
[[Page 57202]]
species, we conclude that currently unoccupied areas do not meet the
definition of critical habitat because they are not essential to the
conservation of the species. 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
criteria:
Across the representation units, there are 25 naturally occurring
sand dune phacelia populations consisting of a total of 94 polygons
(patches of sand dune phacelia). We developed critical habitat units
within each representation unit by joining patches of sand dune
phacelia within each population to form discrete units; this was
accomplished by joining patch vertices and creating minimum convex
polygons. We considered patches to be part of the same population if
they are within 0.30 miles (0.48 km) of each other in Oregon (as
defined by the Oregon Natural Heritage Information Center) or 0.25
miles (0.4 km) of each other in California (or as otherwise defined by
the California Natural Diversity Database) (CNDDB 2020, unpaginated).
A minimum of 25 reproductively mature plants are required for
breeding purposes to maintain viability in a population. Extant sand
dune phacelia populations are isolated from one another on the
landscape, with no possibility of natural dispersal between
populations. As such, each individual population relies on having an
adequate number of its own members to sustain itself and avoid
extirpation. Although there are no data related to the minimum number
of individuals necessary to sustain the viability of a sand dune
phacelia population, we estimate that at least 25 reproductively mature
plants are needed for sufficient reproduction to allow the population
to withstand stochastic events.
Because we consider populations comprising fewer than 25 plants as
being in low condition and unlikely to contribute meaningfully to
recovery, we designated critical habitat only around populations with
equal to or greater than 25 individuals. This consideration resulted in
the creation of 13 critical habitat units.
Some patches within the same population were separated by habitat
that was unsuitable (i.e., does not contain the essential physical or
biological features). We avoided including unsuitable habitat within
the critical habitat units by joining patches only if the intervening
habitat contained at least one essential physical or biological
feature. We further limited the inclusion of unsuitable habitat by
removing areas from the unit that were clearly unsuitable (e.g.,
forest, water bodies) to the maximum extent possible given the scale of
mapping.
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 sand dune phacelia. 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 included in the designation 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 have
determined are occupied at the time of listing (i.e., currently
occupied). Thirteen critical habitat units are designated based on the
physical or biological features being present to support sand dune
phacelia's life-history processes. All critical habitat units contain
all of the identified physical or biological features and support
multiple life-history processes necessary to support the sand dune
phacelia's use of that habitat.
The 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 document. We will make the coordinates or plot
points or both on which each map is based available to the public on
https://www.regulations.gov at Docket No. FWS-R1-ES-2021-0070, and on
our internet site at https://www.fws.gov/office/oregon-fish-and-wildlife.
Final Critical Habitat Designation
We are designating 13 units as critical habitat for sand dune
phacelia. The critical habitat areas we describe below constitute our
current best assessment of areas that meet the definition of critical
habitat for sand dune phacelia. The 13 critical habitat units are: (1)
North Bandon 1, (2) North Bandon 2, (3) Lost Lake, (4) Floras Lake, (5)
Cape Blanco, (6) Paradise Point, (7) Pistol River North, (8) Pistol
River South, (9) Lone Ranch, (10) Pacific Shores, (11) Tolowa Dunes,
(12) Point St. George, and (13) Pebble Beach. All 13 critical habitat
units are occupied by the species. Table 4 shows the critical habitat
units and the approximate area, broken down by land ownership, for each
unit.
Table 4--Critical Habitat Units for Sand Dune Phacelia
----------------------------------------------------------------------------------------------------------------
Private (ac Federal (ac State (ac County (ac Total (ac
(ha)) (ha)) (ha)) (ha)) (ha))
----------------------------------------------------------------------------------------------------------------
Oregon:
North Bandon 1.............. 0.6 (0.2) 0 0 0 0.6 (0.2)
North Bandon 2.............. 54.4 (22) 0 6.9 (2.8) 0 61.3 (24.8)
Lost Lake................... 2.8 (1.1) 0.8 (0.3) 0.1 (0.04) 0 3.7 (1.5)
Floras Lake................. 0 5.8 (2.3) 0 0 5.8 (2.3)
Cape Blanco................. 0 0 2 (0.8) 0 2 (0.8)
Paradise Point.............. 3.7 (1.5) 0 0 0 3.7 (1.5)
Pistol River North.......... 0 0 3.2 (1.3) 0 3.2 (1.3)
Pistol River South.......... 0 0 0.7 (0.3) 0 0.7 (0.3)
Lone Ranch.................. 0 0 6.5 (2.6) 0 6.5 (2.6)
California:
Pacific Shores.............. 7.8 (3.2) 0 13.2 (5.3) 0 21 (8.5)
Tolowa Dunes................ 0 0 69.6 (28.2) 0 69.6 (28.2)
Pt. St. George.............. 0.1 (0.04) 0 0 1.0 (0.4) 1.1 (0.4)
[[Page 57203]]
Pebble Beach................ 0 0 0 1.6 (0.6) 1.6 (0.6)
-------------------------------------------------------------------------------
Totals.................. 69.4 (28.1) 6.6 (2.7) 102.2 (41.4) 2.6 (1.1) 180.8 (73.2)
----------------------------------------------------------------------------------------------------------------
Note: Area estimates reflect suitable habitat within critical habitat unit boundaries, with non-habitat (as
identified by textual description) excluded. Area sizes may not sum due to rounding.
We present brief descriptions of all critical habitat units below.
Note that all units of critical habitat described below meet the
definition of critical habitat for the sand dune phacelia because all
of the units are occupied by the sand dune phacelia, and all units
contain all of the physical or biological features essential to the
species.
Unit 1: North Bandon 1
Unit 1 consists of 0.6 ac (0.2 ha) in Coos County, Oregon. It is at
the northernmost limit of the sand dune phacelia's range in Coos County
and is located on the privately owned Bandon Dunes Golf Resort.
Invasive species are an ongoing threat at this site, and therefore
invasive species management may be required. A stated goal of the
conservation-minded owner is to protect and enhance the sand dune
phacelia at the site, and the population here has flourished due to the
removal of heavy infestations of gorse (Gunther 2012, no pagination).
Unit 2: North Bandon 2
Unit 2 consists of 61.3 ac (24.8 ha) in Coos County, Oregon, and
currently supports the largest population of the sand dune phacelia
rangewide. The majority (54.4 ac (22 ha)) of the habitat at this site
is on the privately owned Bandon Dunes Golf Resort. The population here
is now the largest rangewide, with over 24,000 individuals (Brown
2020a, unpaginated). Invasive species are the primary threat, and
therefore invasive species management may be required. Conservation and
restoration implemented by the golf resort are largely responsible for
the high condition of this population and its habitat. While there are
no formal agreements in place to protect the sand dune phacelia at the
resort, we have no evidence at this time that management efforts at
this site will be discontinued. Part of the population (6.9 ac (2.8
ha)) is in State park ownership (Bullard's Beach) and implementation of
invasive species control, particularly gorse, could result in an
expanded sand dune phacelia population in the park.
Unit 3: Lost Lake
Unit 3 consists of 3.7 ac (1.5 ha) in Coos County, Oregon. The Lost
Lake unit contains land within the Coos Bay New River Area of Critical
Environmental Concern (ACEC) (0.8 ac (0.3 ha)) that is federally
managed by the BLM, State-managed land (0.1 ac (0.04 ha)) within the
Bandon State Natural Area (BSNA), and undeveloped private land (2.8 ac
(1.1 ha)). Threats in Unit 3 include the persistent threat of invasive
species. As such, invasive species management may be required to
maintain it. The sand dune phacelia has greatly benefited from the
BLM's efforts to remove invasive species in the Lost Lake area, and it
is likely that there is room for expansion of this population provided
that annual, or nearly annual, vegetation management continues.
Augmentation efforts, including transplanting and seeding, have also
occurred at Lost Lake on the ACEC.
Unit 4: Floras Lake
Unit 4 consists of 5.8 ac (2.3 ha) in Curry County, Oregon. Like
Unit 3, Floras Lake is a part of the BLM's New River ACEC. The BLM
monitors and regularly manages the habitat to maintain the open sand
conditions that the sand dune phacelia requires, contributing to the
fact that the population of sand dune phacelia at Floras Lake is the
largest naturally occurring (i.e., not introduced) population on
Federal land. The BLM has augmented populations in this unit with
transplants. In addition to the threat of invasive species, other
stressors include trampling by hikers and wintertime flooding from
Floras Lake. Dependent upon the intensity, these activities could also
be beneficial as they mobilize sand and clear habitat of invasive
species. As such, mitigating the impacts of pedestrian use, flooding,
and invasive species may be required. Sea level rise may pose an
additional threat. As determined by our future condition analysis, a 1-
foot rise in sea level by 2060 would barely reach the seaward boundary
of the unit; however, other accompanying effects of climate change,
like increased storm surge, may also affect sand dune phacelia habitat
in this unit.
Unit 5: Cape Blanco
Unit 5 consists of 2 ac (0.8 ha) in Curry County, Oregon. The unit
is State-managed by the Oregon Parks and Recreation Department (OPRD)
and consists of sandy bluffs above the high tide line. A naturally
occurring population was augmented with transplants in 2018. Invasive
species are a threat at this site, and therefore invasive species
management may be required.
Unit 6: Paradise Point
Unit 6 consists of 3.7 ac (1.5 ha) in Curry County, Oregon. It is
separated from Unit 5 by the Elk River and bounded to the east by
private ranchlands. Unit 6 is made up of undeveloped private land,
limited to sandy bluffs between the high tide line and adjacent
pastureland. Although it is privately owned, the State (OPRD) has
jurisdiction over the land in Unit 6 as well as some adjacent State-
owned land. In addition to the threat of invasive species, other
factors influencing the population at this site include erosion and
storm surge associated with sea level rise. OHV use is permitted here,
but most of it occurs outside of the area occupied by sand dune
phacelia. As such, invasive species management may be required, and
other management associated with mitigating the impacts of OHV use,
erosion, and flooding may also be beneficial.
Unit 7: Pistol River North
Unit 7 consists of 3.2 ac (1.3 ha) in Curry County, Oregon. The
land on Unit 7 lies southwest of the Pistol River and is State-managed
by OPRD (Pistol River State Park) and the Oregon Department of
Transportation. As with all other units, invasive species are a threat,
and therefore invasive species management may be required. Another
stressor affecting Unit 7 is erosion, as the mouth of the Pistol River
changes location annually, scouring the dunes and carrying sand out to
sea.
[[Page 57204]]
Unit 8: Pistol River South
Unit 8 consists of 0.7 ac (0.3 ha) in Curry County, Oregon. The
land is south of Unit 7 and also located on Pistol River State Park.
Invasive species are a threat here, and the site is surrounded by
European beachgrass and encroaching shore pine. As such, invasive
species management may be required.
Unit 9: Lone Ranch
Unit 9 consists of 6.5 ac (2.6 ha) in Curry County, Oregon, and
currently supports the third largest population of sand dune phacelia
throughout its range. It is composed entirely of land managed by the
State (OPRD; Boardman State Park). There is a threat to the population
at this site posed by a number of invasive species. As such, invasive
species management may be required. Existing control of weedy species
for recreational trail access may be maintaining existing suitable
habitat.
Unit 10: Pacific Shores
Unit 10 consists of 21 ac (8.5 ha) in Del Norte County, California.
State lands make up 13.2 ac (5.3 ha) of this unit, with the remaining
7.8 ac (3.2 ha) currently in private ownership. This area represents an
abandoned real estate venture, where lands were subdivided into 0.5-ac
(0.20-ha) lots in the 1960s for residential development. More than
1,500 lots were sold, and approximately 27 miles of road and electric
transmission line were constructed. However, the area remains
undeveloped due to permitting issues, and the empty lots are now being
acquired for conservation by a coalition of entities for inclusion into
the State's Lake Earl Wildlife Area. Approximately 430 lots remain in
private ownership. Invasive species are a threat here, and therefore
invasive species management may be required. In addition, because much
of the sand dune phacelia population in the unit occurs adjacent to
roadways or other readily accessible areas, the unit is considered
heavily impacted by human activities that include OHV use. Special
management considerations to mitigate the impact to sand dune phacelia
habitat from these activities may be required.
Unit 11: Tolowa Dunes
Unit 11 consists of 69.6 ac (28.2 ha) in Del Norte County,
California, and currently supports the second largest population of the
sand dune phacelia rangewide. The unit is State-managed in part by
California State Parks (on Tolowa Dunes State Park) and the California
Department of Fish and Wildlife (on Lake Earl Wildlife Area). Invasive
species including European beachgrass and annual invasive grasses such
as ripgut brome (Bromus diandrus) are a threat here, and OHV use also
impacts this site. As such, managing OHV use and invasive species may
be required. The relatively high abundance of sand dune phacelia in
Unit 11 is attributed to a concerted restoration program that has
removed invasive species, particularly European beachgrass. These
efforts have made this population the stronghold for the species in
California and an important contributor to sand dune phacelia
resiliency and redundancy rangewide. However, much of the restoration
at this site has been conducted by volunteers, and funding to continue
maintaining restored habitat is uncertain.
Unit 12: Point Saint George
Unit 12 consists of 1.1 ac (0.4 ha) in Del Norte County,
California. The vast majority of the land (1 ac (0.4 ha)) is county-
managed by Del Norte County Parks, and the other 0.1 ac (0.04 ha) is
privately owned. Invasive species, particularly annual grasses, are
prolific in this unit, and therefore invasive species management may be
required. However, a large proportion of the sand dune phacelia
population at this site occurs near a hiking trail where disturbance
has kept the area relatively free of invasive species.
Unit 13: Pebble Beach
Unit 13 consists of 1.6 ac (0.6 ha) in Del Norte County,
California. It is managed by Del Norte County. Invasive species pose a
substantial threat at this site, primarily Hottentot fig or iceplant
(Carpobrotus edulis), and therefore invasive species management may be
required. Additionally, much of this unit is located within a road
right-of-way, and therefore road development or maintenance activities
could impact sand dune phacelia individuals, some of which are quite
large and productive. As such, special management to mitigate the
impact to sand dune phacelia habitat from these activities may be
required.
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.
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 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
[[Page 57205]]
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 consultation on previously reviewed actions.
These requirements apply when the Federal agency has retained
discretionary involvement or control over the action (or the agency's
discretionary involvement or control is authorized by law) and,
subsequent to the previous consultation: (a) if the amount or extent of
taking specified in the incidental take statement is exceeded; (b) if
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; (c) if 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 written
concurrence; or (d) if a new species is listed or critical habitat
designated that may be affected by the identified action. The
reinitiation requirement applies only to actions that remain subject to
some discretionary Federal involvement or control. As provided in 50
CFR 402.16, the requirement to reinitiate consultations for new species
listings or critical habitat designation does not apply to certain
agency actions (e.g., land management plans issued by the Bureau of
Land Management in certain circumstances).
Application of the ``Adverse Modification'' Standard
The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat as a
whole for the conservation of the listed species. As discussed above,
the role of critical habitat is to support physical or biological
features essential to the conservation of a listed species and provide
for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate 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 Service may, during a consultation under
section 7(a)(2) of the Act, consider likely to destroy or adversely
modify critical habitat include, but are not limited to:
(1) Actions that would destroy, alter, or convert sand dune
habitat. Such activities could include, but are not limited to, the
construction of new roads or utility lines, dune breaching or breaching
of water bodies for flood control, bridge work, and the use of heavy
equipment for regular maintenance activities (such as roadway
maintenance). These activities could eliminate or reduce the sandy dune
habitat necessary for sand dune phacelia growth and reproduction.
(2) Actions that would inhibit or reduce native plant communities
and the pollinator communities they support. Such activities could
include, but are not limited to, herbicide or insecticide application.
These activities could limit the ability of sand dune phacelia to
reproduce by inhibiting pollinator communities.
(3) Actions that would introduce or promote the proliferation of
invasive or successional species plant species into sand dune habitat.
Such activities could include, but are not limited to, vegetation
management that encourages growth of competing native and nonnative
species. These activities could increase competition for space for
growth, sunlight, and nutrients between sand dune phacelia and
nonnative or successional competitors such as European beachgrass and
shore pine, respectively.
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. No DoD lands
with a completed INRMP are within the final 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 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.
The Secretary may exclude any particular area if she determines
that the benefits of such exclusion outweigh the benefits of including
such area as part of the critical habitat, unless she determines, based
on the best scientific data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. In making the determination to exclude a particular area, the
statute on its face, as well as the legislative history, are clear that
the Secretary has broad discretion regarding which factor(s) to use and
how much weight to give to any factor.
Exclusions Based on 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. In order to consider economic impacts, we prepared
an incremental effects memorandum (IEM) and screening analysis which,
together with our narrative and interpretation of effects, we consider
our economic analysis of the critical habitat designation and related
factors (Industrial Economics, Inc. 2021). The analysis, dated May 21,
2021, was made available for public review from March 22, 2022, through
May 23, 2022 (Industrial Economics, 2021). The economic analysis
addressed probable economic impacts of critical habitat designation for
sand dune phacelia. Following the close of the comment period, we
reviewed and evaluated all
[[Page 57206]]
information submitted during the comment period that may pertain to our
consideration of the probable incremental economic impacts of this
critical habitat designation. Additional information relevant to the
probable incremental economic impacts of critical habitat designation
for the sand dune phacelia is summarized below and available in the
screening analysis for the sand dune phacelia (Industrial Economics,
Inc. 2021), available at https://www.regulations.gov.
In our evaluation of the probable incremental economic impacts that
may result from the designation of critical habitat for the sand dune
phacelia, first we identified, in the IEM dated April 14, 2021,
probable incremental economic impacts associated with the following
categories of activities: (1) Federal (Bureau of Land Management) lands
management for recreational use, western snowy plover management, dune
breaching, salt spray meadow restoration, and management plan updates;
(2) bridge work; (3) breaching associated with water bodies for flood
control purposes; and (4) road development and maintenance. We
considered each industry or category individually. Additionally, we
considered whether their activities have any Federal involvement.
Critical habitat designation generally will not affect activities that
do not have any Federal involvement; under the Act, designation of
critical habitat only affects activities conducted, funded, permitted,
or authorized by Federal agencies. In areas where the sand dune
phacelia is present, Federal agencies will be required to consult with
the Service under section 7 of the Act on activities they fund, permit,
or implement that may affect the species. Our consultation would
include an evaluation of measures to avoid the destruction or adverse
modification of critical habitat.
In our IEM, we attempted to clarify the distinction between the
effects that would 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 the sand
dune phacelia's critical habitat. Because the designation of critical
habitat for the sand dune phacelia was proposed concurrently with the
listing, it has been our experience that it is more difficult to
discern which conservation efforts are attributable to the species
being listed and those which will result solely from the designation of
critical habitat. However, the following specific circumstances in this
case help to inform our evaluation: (1) The essential physical or
biological features identified for critical habitat are the same
features essential for the life requisites of the species, and (2) any
actions that would likely adversely affect the essential physical or
biological features of critical habitat are also likely to adversely
affect the species itself. The IEM outlines our rationale concerning
this limited distinction between baseline conservation efforts and
incremental impacts of the designation of critical habitat for this
species. This evaluation of the incremental effects has been used as
the basis to evaluate the probable incremental economic impacts of this
designation of critical habitat.
We are designating approximately 180.8 ac (73.2 ha) of critical
habitat for the sand dune phacelia in Coos and Curry Counties, Oregon,
and in Del Norte County, California. The designation is divided into 13
units, and all units are occupied by the sand dune phacelia. We are not
designating any units of unoccupied habitat. Approximately 57 percent
of the critical habitat designation is located on State lands, 38
percent is on privately owned lands, 4 percent is on Federal lands, and
1 percent is on County lands. Any actions that may affect critical
habitat would likely also affect the species or its habitat, and
therefore 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 sand dune phacelia. Therefore, only
administrative costs are expected with the critical habitat
designation. While this additional analysis will require time and
resources by both the Federal action agency and the Service, it is
believed that, in most circumstances, these costs would predominantly
be administrative in nature and would not be significant.
The probable incremental economic impacts of the sand dune phacelia
critical habitat designation are expected to be limited to additional
administrative effort resulting from an estimated 3 programmatic
consultations, 10 formal consultations, 3 informal consultations, and 7
technical assistance efforts related to section 7 consultation over the
next 10 years. Because all the critical habitat units are occupied by
the species, incremental economic impacts of critical habitat
designation, other than administrative costs, are unlikely. The
incremental costs for each programmatic, formal, informal, and
technical assistance effort are estimated to be $9,800, $5,300, $2,600,
and $420, respectively. These estimates assume that consultation
actions will occur even in the absence of critical habitat due to the
presence of the sand dune phacelia, and the amount of administrative
effort needed to address the critical habitat during this process is
relatively minor. Applying these unit cost estimates, this analysis
estimates that considering adverse modification of sand dune phacelia
critical habitat during section 7 consultation will result in
incremental costs of no more than $9,300 (2021 dollars) per year, which
is well below the annual administrative burden threshold of $200
million of incremental administrative impacts in a single year.
As discussed above, we considered the economic impacts of the
critical habitat designation, and the Secretary is not exercising her
discretion to exclude any areas from this designation of critical
habitat for the sand dune phacelia based on economic impacts.
Exclusions Based on Impacts on National Security and Homeland Security
In preparing this rule, we determined that there are no lands
within the designated critical habitat for the sand dune phacelia that
are owned or managed by the DoD or Department of Homeland Security,
and, therefore, we anticipate no impact on national security or
homeland security. We did not receive any additional information during
the public comment period for the proposed designation regarding
impacts of the designation on national security or homeland security
that would support excluding any specific areas from the final critical
habitat designation under authority of section 4(b)(2) and our
implementing regulations at 50 CFR 424.19, as well as the 2016 Policy.
Exclusion Based on 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 discussed above. 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 HCPs, safe
harbor agreements, or candidate conservation agreements with
[[Page 57207]]
assurances--or whether there are non-permitted conservation agreements
and partnerships that may be impaired by designation of, or exclusion
from, critical habitat. In addition, we look at whether Tribal
conservation plans or partnerships, Tribal resources, or government-to-
government relationships of the United States with Tribal entities may
be affected by the designation. We also consider any State, local,
public-health, community-interest, environmental, or social impacts
that might occur because of the designation.
We are not excluding any areas from critical habitat. In preparing
this final rule, we have determined that there are currently no HCPs or
other management plans for sand dune phacelia, and the designation does
not include any Tribal lands or trust resources. We anticipate no
impact on Tribal lands, partnerships, or HCPs from this final critical
habitat designation. We did not receive any additional information
during the public comment period for the proposed rule regarding other
relevant impacts to support excluding any specific areas from the final
critical habitat designation under authority of section 4(b)(2) and our
implementing regulations at 50 CFR 424.19, as well as the 2016 Policy.
Accordingly, the Secretary is not exercising her discretion to exclude
any areas from this designation based on other relevant impacts.
Required Determinations
Regulatory Planning and Review--Executive Orders 12866, 13563, and
14094
Executive Order 14094 reaffirms the principles of E.O. 12866 and
E.O. 13563 and states that regulatory analysis should facilitate agency
efforts to develop regulations that serve the public interest, advance
statutory objectives, and are consistent with E.O. 12866, E.O. 13563,
and the Presidential Memorandum of January 20, 2021 (Modernizing
Regulatory Review). Regulatory analysis, as practicable and
appropriate, shall recognize distributive impacts and equity, to the
extent permitted by law. 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 final rule in a manner consistent with
these requirements.
E.O. 12866, as reaffirmed by E.O. 13563 and E.O. 14094, provides
that the Office of Information and Regulatory Affairs (OIRA) in the
Office of Management and Budget (OMB) will review all significant
rules. OIRA has determined that this rule is not significant.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service 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 whether 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 the 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.
During the development of this final rule, we reviewed and
evaluated all information submitted during the comment period on the
March 22, 2022 proposed rule (87 FR 16320) that may pertain to our
consideration of the probable incremental economic impacts of this
critical habitat designation. Based on this information, we affirm our
certification that this critical habitat designation will not have a
significant economic impact on a substantial number of small entities,
and 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 this
critical habitat designation will significantly affect energy supplies,
distribution, or use. We are not aware of any energy-related activities
or facilities within the boundaries of the critical habitat
designation. Therefore, this action is not a significant energy action,
and no Statement of Energy Effects is required.
[[Page 57208]]
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 finding:
(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 would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this final rule will significantly or
uniquely affect small governments because it will not produce a Federal
mandate of $200 million or greater in any year, that is, it 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. Therefore, a Small Government Agency Plan
is not required.
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 the sand dune phacelia 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
for the designation of critical habitat for the sand dune phacelia, and
it concludes that this designation of critical habitat does 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 critical habitat designation with,
appropriate State resource agencies. 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 does 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 for 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) of the Act 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 the rule will 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, this rule
identifies the physical or biological features essential to the
conservation of the species. The 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.
[[Page 57209]]
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain information collection requirements, and
a submission to 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.)
Regulations adopted pursuant to section 4(a) of the Act are exempt
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et
seq.) and do not require an environmental analysis under NEPA. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This includes
listing, delisting, and reclassification rules, as well as critical
habitat designations and species-specific protective regulations
promulgated concurrently with a decision to list or reclassify a
species as threatened. The courts have upheld this position (e.g.,
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995) (critical
habitat); Center for Biological Diversity v. U.S. Fish and Wildlife
Service, 2005 WL 2000928 (N.D. Cal. Aug. 19, 2005) (concurrent 4(d)
rule)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), 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
Secretary's Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes. We have determined that no Tribal
lands fall within the boundaries of the critical habitat designation
for the sand dune phacelia, so no Tribal lands will be affected by the
designation.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at https://www.regulations.gov and upon request from
the Oregon Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT).
Authors
The primary authors of this rule are the staff members of the Fish
and Wildlife Service's Species Assessment Team and the Oregon Fish and
Wildlife Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. In Sec. 17.12, in paragraph (h), amend the List of Endangered and
Threatened Plants by adding an entry for ``Phacelia argentea'' in
alphabetical order under Flowering Plants to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Scientific name Common name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
Flowering Plants
* * * * * * *
Phacelia argentea................ Sand dune phacelia. Wherever found..... T 88 FR [Insert Federal
Register page where the
document begins], 8/22/
2023;
50 CFR 17.73(j); \4d\
50 CFR 17.96(a).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.73 by adding paragraph (j) to read as follows:
Sec. 17.73 Special rules--flowering plants.
* * * * *
(j) Phacelia argentea (sand dune phacelia)--(1) Prohibitions. The
following prohibitions that apply to endangered plants also apply to
the sand dune phacelia. Except as provided under paragraph (j)(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) Import or export, as set forth at Sec. 17.61(b) for endangered
plants.
(ii) Remove and reduce to possession the species from areas under
Federal jurisdiction, as set forth at Sec. 17.61(c)(1) for endangered
plants.
(iii) 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 law or regulation
of any State 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.
(iv) Interstate or foreign commerce in the course of commercial
activity, as set forth at Sec. 17.61(d) for endangered plants.
(v) Sale or offer for sale, as set forth at Sec. 17.61(e) for
endangered plants.
(2) Exceptions from prohibitions. In regard to Phacelia argentea,
you may:
(i) Conduct activities, including activities prohibited under
paragraph (j)(1) of this section, if they are authorized by a permit
issued in accordance with the provisions set forth at Sec. 17.72.
[[Page 57210]]
(ii) Remove and reduce to possession from areas under Federal
jurisdiction, as set forth at Sec. 17.71(b).
(iii) Remove, cut, dig up, damage or destroy on areas not under
Federal jurisdiction by any qualified employee or agent of the Service
or 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 that agency for such purposes, when acting in the
course of official duties.
0
4. In Sec. 17.96, amend paragraph (a) by adding an entry for ``Family
Boraginaceae: Phacelia argentea (sand dune phacelia)'' after the entry
for ``Family Boraginaceae: Amsinckia grandiflora (large-flowered
fiddleneck),'' to read as follows:
Sec. 17.96 Critical habitat--plants.
(a) Flowering plants.
* * * * *
Family Boraginaceae: Phacelia argentea (sand dune phacelia)
(1) Critical habitat units are depicted for Coos and Curry
Counties, Oregon, and Del Norte County, California, on the maps in this
entry.
(2) Within these areas, the physical or biological features
essential to the conservation of the sand dune phacelia consist of the
following components:
(i) Sandy coastal dune habitat above the high tide line that
provides a high light environment, room for growth, and adequate
moisture.
(ii) A sufficiently abundant pollinator community (which may
include leafcutter bees and bumble bees) for pollination and
reproduction.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
September 21, 2023.
(4) Data layers defining map units were created using Geographic
Information Systems (GIS) feature classes from known extant
populations. Critical habitat units were defined by applying the
minimum convex polygon approach in GIS, thereby creating a single
polygon from occupied habitat patches within each population consisting
of 25 or more individuals. Several units have two polygons each to
include individuals that are separated from the main populations by
unsuitable or unoccupied habitat. In a few cases, the unit boundaries
were modified to align with the coastal boundary based on current
National Agriculture Imagery Program natural color imagery. 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/oregon-fish-and-wildlife, at https://www.regulations.gov at Docket No.
FWS-R1-ES-2021-0070, 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 for Phacelia argentea follows:
BILLING CODE 4333-15-P
Figure 1 to Phacelia argentea (sand dune phacelia) paragraph (5)
[[Page 57211]]
[GRAPHIC] [TIFF OMITTED] TR22AU23.003
(6) Unit 1: North Bandon 1, Coos County, Oregon.
(i) Unit 1 consists of 0.6 acres (ac) (0.2 hectares (ha)) in Coos
County, Oregon, and is composed of land in private ownership.
(ii) Map of Units 1 and 2 follows:
Figure 2 to Phacelia argentea (sand dune phacelia) paragraph (6)(ii)
[[Page 57212]]
[GRAPHIC] [TIFF OMITTED] TR22AU23.004
(7) Unit 2: North Bandon 2, Coos County, Oregon.
(i) Unit 2 consists of 61.3 ac (24.8 ha) in Coos County, Oregon,
and is composed of land in State (6.9 ac (2.8 ha)) and private (54.4 ac
(22 ha)) ownership.
(ii) Map of Unit 2 is provided at paragraph (6)(ii) of this entry.
(8) Unit 3: Lost Lake, Coos County, Oregon.
(i) Unit 3 consists of 3.7 ac (1.5 ha) in Coos County, Oregon, and
is composed of land in State (0.1 ac (0.04 ha)), Federal (0.8 ac (0.3
ha)), and private (2.8 ac (1.1 ha)) ownership.
(ii) Map of Unit 3 follows:
Figure 3 to Phacelia argentea (sand dune phacelia) paragraph (8)(ii)
[[Page 57213]]
[GRAPHIC] [TIFF OMITTED] TR22AU23.005
(9) Unit 4: Floras Lake, Curry County, Oregon.
(i) Unit 4 consists of 5.8 ac (2.3 ha) in Curry County, Oregon, and
is composed of land in Federal ownership.
(ii) Map of Unit 4 follows:
Figure 4 to Phacelia argentea (sand dune phacelia) paragraph (9)(ii)
[[Page 57214]]
[GRAPHIC] [TIFF OMITTED] TR22AU23.006
(10) Unit 5: Cape Blanco, Curry County, Oregon.
(i) Unit 5 consists of 2 ac (0.8 ha) in Curry County, Oregon, and
is composed of land in State ownership.
(ii) Map of Unit 5 follows:
Figure 5 to Phacelia argentea (sand dune phacelia) paragraph (10)(ii)
[[Page 57215]]
[GRAPHIC] [TIFF OMITTED] TR22AU23.007
(11) Unit 6: Paradise Point, Curry County, Oregon.
(i) Unit 6 consists of 3.7 ac (1.5 ha) in Curry County, Oregon, and
is composed of land in private ownership.
(ii) Map of Unit 6 follows:
Figure 6 to Phacelia argentea (sand dune phacelia) paragraph (11)(ii)
[[Page 57216]]
[GRAPHIC] [TIFF OMITTED] TR22AU23.008
(12) Unit 7: Pistol River North, Curry County, Oregon.
(i) Unit 7 consists of 3.2 ac (1.3 ha) in Curry County, Oregon, and
is composed of land in State ownership.
(ii) Map of Unit 7 follows:
Figure 7 to Phacelia argentea (sand dune phacelia) paragraph (12)(ii)
[[Page 57217]]
[GRAPHIC] [TIFF OMITTED] TR22AU23.009
(13) Unit 8: Pistol River South, Curry County, Oregon.
(i) Unit 8 consists of 0.7 ac (0.3 ha) in Curry County, Oregon, and
is composed of land in State ownership.
(ii) Map of Unit 8 follows:
Figure 8 to Phacelia argentea (sand dune phacelia) paragraph (13)(ii)
[[Page 57218]]
[GRAPHIC] [TIFF OMITTED] TR22AU23.010
(14) Unit 9: Lone Ranch, Curry County, Oregon.
(i) Unit 9 consists of 6.5 ac (2.6 ha) in Curry County, Oregon, and
is composed of land in State ownership.
(ii) Map of Unit 9 follows:
Figure 9 to Phacelia argentea (sand dune phacelia) paragraph (14)(ii)
[[Page 57219]]
[GRAPHIC] [TIFF OMITTED] TR22AU23.011
(15) Unit 10: Pacific Shores, Del Norte County, California.
(i) Unit 10 consists of 21 ac (8.5 ha) in Del Norte County,
California, and is composed of land in State (13.2 ac (5.3 ha)) and
private (7.8 ac (3.2 ha)) ownership.
(ii) Map of Units 10 and 11 follows:
Figure 10 to Phacelia argentea (sand dune phacelia) paragraph (15)(ii)
[[Page 57220]]
[GRAPHIC] [TIFF OMITTED] TR22AU23.012
(16) Unit 11: Tolowa Dunes, Del Norte County, California.
(i) Unit 11 consists of 69.6 ac (28.2 ha) in Del Norte County,
California, and is composed of land in State ownership.
(ii) Map of Unit 11 is provided at paragraph (15)(ii) of this
entry.
(17) Unit 12: Point Saint George, Del Norte County, California.
(i) Unit 12 consists of 1.1 ac (0.4 ha) in Del Norte County,
California, and is composed of land in county (1 ac (0.4 ha)) and
private (0.1 ac (0.04 ha)) ownership.
(ii) Map of Unit 12 follows:
Figure 11 to Phacelia argentea (sand dune phacelia) paragraph (17)(ii)
[[Page 57221]]
[GRAPHIC] [TIFF OMITTED] TR22AU23.013
(18) Unit 13: Pebble Beach, Del Norte County, California.
(i) Unit 13 consists of 1.6 ac (0.6 ha) in Del Norte County,
California, and is under county ownership.
(ii) Map of Unit 13 follows:
Figure 12 to Phacelia argentea (sand dune phacelia) paragraph (18)(ii)
[[Page 57222]]
[GRAPHIC] [TIFF OMITTED] TR22AU23.014
* * * * *
Wendi Weber,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-17669 Filed 8-21-23; 8:45 am]
BILLING CODE 4333-15-C