Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would establish Class E airspace to support IFR operations at Lincoln Airport, Lincoln, MT.

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should submit only one time if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.

The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The FAA may change this proposal in light of the comments it receives.

Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

An electronic copy of this document may be downloaded through the internet at www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Operations office (see ADDRESSES section for address, phone number, and hours of operations). An informal docket may also be examined during normal business hours at the office at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 2200 S 216th Street, Des Moines, WA 98198.

Class E5 airspace designations are published in paragraph 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document proposes to amend the current version of that order, FAA Order JO 7400.11H, dated August 11, 2023, and effective September 15, 2023. These updates would be published in the next update to FAA Order JO 7400.11. That order is publicly available as listed in the ADDRESSES section of this document.

FAA Order JO 7400.11H lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is proposing an amendment to 14 CFR part 71 to establish Class E airspace extending upward from 700 feet or more from the surface of the earth at Lincoln Airport, Lincoln, MT.

The airport is transitioning from VFR to IFR operations. Class E airspace should be established within a 2.6-mile radius of the airport, within 1.1 miles on either side of the airport's 056° bearing extending 9.2 miles northeast of the airport, and within 2.6 miles on either side of the airport's 251° bearing extending 9 miles southwest of the airport. This airspace would contain arriving IFR aircraft descending below 1,500 feet above the surface and departing aircraft until it reaches 1,200 feet above the surface.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” prior to any FAA final regulatory action.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it would establish Class E airspace extending upward from 700 feet above the surface at Valkaria Airport, Valkaria, FL, to support standard instrument approach procedures for IFR operations at this airport.

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the proposal's overall regulatory, aeronautical, economic, environmental, and energy-related aspects. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should submit only once if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.

The FAA will file in the docket all comments it receives and a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible without incurring expense or delay. The FAA may change this proposal in light of the comments it receives.

Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without editing, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

An electronic copy of this document may be downloaded through the internet at www.regulations.gov. Recently published rulemaking documents can be accessed through the FAA's web page at www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Operations office (see ADDRESSES section for address, phone number, and hours of operations). An informal docket may also be examined during normal business hours at the office of the Eastern Service Center, Federal Aviation Administration, Room 210, 1701 Columbia Ave., College Park, GA 30337.

Class E airspace designations are published in Paragraphs 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 annually. This document proposes to amend the current version of that order, FAA Order JO 7400.11H, dated August 11, 2023, and effective September 15, 2023. These updates will be published in the next FAA Order JO 7400.11 update. That order is publicly available as listed in the ADDRESSES section of this document.

FAA Order JO 7400.11H lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA proposes an amendment to 14 CFR part 71 to establish Class E airspace extending upward from 700 feet above the surface within a 6.4-mile radius of Valkaria Airport, Valkaria, FL, providing the controlled airspace required to support the new RNAV (GPS) standard instrument approach procedures for IFR operations at the airport. Controlled airspace is necessary for the area's safety and management of instrument flight rules (IFR) operations.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal would be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” prior to any FAA final regulatory action.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it would establish Class E airspace extending upward from 700 feet above the surface at Rockingham County NC Shiloh Airport, Reidsville, NC, to support standard instrument approach procedures for IFR operations at this airport.

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the proposal's overall regulatory, aeronautical, economic, environmental, and energy-related aspects. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should submit only once if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.

The FAA will file in the docket all comments it receives anda report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible without incurring expense or delay. The FAA may change this proposal in light of the comments it receives.

Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

An electronic copy of this document may be downloaded through the internet at www.regulations.gov. Recently published rulemaking documents can be accessed through the FAA's web page at www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Operations office (see ADDRESSES section for address, phone number, and hours of operations). An informal docket may also be examined during normal business hours at the office of the Eastern Service Center, Federal Aviation Administration, Room 210, 1701 Columbia Ave., College Park, GA 30337.

Class E airspace designations are published in Paragraphs 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 annually. This document proposes to amend the current version of that order, FAA Order JO 7400.11H, dated August 11, 2023, and effective September 15, 2023. These updates will be published in the next FAA Order JO 7400.11 update. That order is publicly available as listed in the ADDRESSES section of this document.

FAA Order JO 7400.11H lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA proposes an amendment to 14 CFR part 71 to establish Class E airspace extending upward from 700 feet above the surface within a 9.1-mile radius of Rockingham County, NC Shiloh Airport, Reidsville, NC, providing the controlled airspace required to support the new RNAV (GPS) standard instrument approach procedures for IFR operations at the airport. Controlled airspace is necessary for the area's safety and management of instrument flight rules (IFR) operations.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal would be subject to an environmental analysis per FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” before any FAA final regulatory action.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

The subject of the public hearing is the notice of proposed rulemaking (REG-117631-23) that was published in the Federal Register on Tuesday, December 26, 2023 (FR 88 89220). To accommodate all persons who wished to present oral comments at the public hearing, the hearing Monday, March 25, 2024, has been extended to Tuesday, March 26, and Wednesday, March 27, 2024. The additional days, March 26 and March 27, 2024, are reserved for oral comments by telephone only.

Persons who wished to present oral comments at the public hearing were required to submit written and electronic comments and an outline of the topics to be discussed as well as the time to be devoted to each topic by March 4, 2024. This due date for requests to testify has not been extended. Persons who made timely requests to testify will receive the telephone number and access codes for the public hearing.

An agenda showing the scheduling of the speakers will be available free of charge at the hearing, and via the Federal eRulemaking Portal ( www.Regulations.gov ) under the title of Supporting & Related Material.

Individuals who want to attend the public hearing in person without testifying must also send an email to publichearings@irs.gov to have your name added to the building access list. The subject line of the email must contain the regulation number REG-117631-23 and the language ATTEND In Person. For example, the subject line may say: Request to ATTEND Hearing In Person for REG-117631-23. Requests to attend the public hearing must be received by 5 p.m. ET by March 18, 2024.

Individuals who want to attend the public hearing by telephone without testifying must also send an email to publichearings@irs.gov to receive the telephone number and access code for the hearing. The subject line of the email must contain the regulation number REG-117631-23, and the language ATTEND Hearing Telephonically. For example, the subject line may say: Request to ATTEND Hearing Telephonically for REG-117631-23. Requests to attend the public hearing must be received by 5 p.m. ET by March 18, 2024.

Hearings will be made accessible to people with disabilities. To request special assistance during a hearing please contact the Publications and Regulations Section of the Office of Associate Chief Counsel (Procedure and Administration) by sending an email to publichearings@irs.gov (preferred) or by telephone at (202) 317-6901 (not a toll-free number) by 5 p.m. ET on March 18, 2024.

Any questions regarding speaking at or attending a public hearing may also be emailed to publichearings@irs.gov.

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

PM 2.5 is one of the criteria pollutants for which a NAAQS is established to protect human health and the environment. In 1997, EPA established the first PM 2.5 standards based on significant scientific evidence and health studies demonstrating the serious health effects associated with exposure to PM 2.5 . EPA set an annual standard of 15.0 micrograms per cubic meter (μg/m 3 ) and a 24-hour (or daily) standard of 65 μg/m 3 . In 2006, EPA strengthened the 24-hour PM 2.5 NAAQS by revising it to 35 μg/m 3 and retained the level of the annual PM 2.5 standard at 15.0 μg/m 3 . Subsequently, in 2012, EPA established an annual primary PM 2.5 NAAQS at 12 μg/m 3 and retained the 2006 24-hour PM 2.5 NAAQS at 35 μg/m 3 . In 2024, EPA revised the annual primary PM 2.5 NAAQS to 9.0 μg/m 3 and retained the level of the 2006 24-hour PM 2.5 NAAQS at 35 μg/m 3 .

On November 13, 2009 (74 FR 58688), EPA designated the Milwaukee-Racine area as a PM 2.5 nonattainment area due to measured violations of the 2006 PM 2.5 NAAQS. On June 8, 2012, supplemented on May 30, 2013, WDNR submitted to EPA a request to redesignate the Milwaukee-Racine nonattainment area, to attainment of the 2006 PM 2.5 NAAQS. The submission included a plan to provide for maintenance of the 2006 PM 2.5 NAAQS in the area for 10 years. EPA redesignated the Milwaukee-Racine area on April 22, 2014 (79 FR 22415),and approved the associated maintenance plan into the Wisconsin State Implementation Plan (SIP). The purpose of WDNR'S April 8, 2022, LMP submission is to fulfill the second 10-year planning requirement of CAA section 175A(b) to ensure PM 2.5 NAAQS compliance through 2034.

Section 175A of the CAA sets forth the elements of a maintenance plan. Under section 175A, a state must submit a revision to the SIP that provides for maintenance of the applicable NAAQS for at least 10 years after an area is redesignated to attainment. Section 175A also requires that eight years into the first maintenance period, the state must submit a second maintenance plan demonstrating that the area will continue to attain for the following 10-year period.

EPA has published long-standing guidance for states on developing maintenance plans. 1 The Calcagni memo provides that states may generally demonstrate maintenance by either performing air quality modeling to show that the future mix of sources and emission rates will not cause a violation of the NAAQS or by showing that future emissions of a pollutant and its precursors will not exceed the level of emissions during a year when the area was attaining the NAAQS ( i.e., attainment year inventory). EPA clarified in subsequent guidance memos that certain nonattainment areas could meet the CAA section 175A requirement to provide for maintenance by demonstrating that the area's design value was well below the NAAQS and that the historical stability of the area's air quality levels showed that the area was unlikely to violate the NAAQS in the future. 2

Most recently, in October 2022, EPA released guidance extending this streamlined option for demonstrating maintenance under CAA section 175A to certain PM 2.5 areas, titled “Guidance on Limited Maintenance Plan Option for Moderate PM 2.5 Nonattainment Areas and PM 2.5 Maintenance Areas” (PM 2.5 LMP Guidance). 3

EPA refers to this streamlined demonstration of maintenance as an LMP. EPA has interpreted CAA section 175A as permitting this option because CAA section 175A defines few specific content requirements for maintenance plans and, in EPA's experience implementing the various NAAQS, areas that qualify for an LMP or have approved LMPs have rarely, if ever, experienced subsequent violations of the NAAQS. As noted in the PM 2.5 LMP guidance, states seeking an LMP should still submit the other maintenance plan elements outlined in the Calcagni memo, including: an attainment emissions inventory, provisions for the continued operation of the ambient air quality monitoring network, verification of continued attainment, and a contingency plan in the event of a future violation of the NAAQS. Moreover, states seeking an LMP must still submit their section 175A maintenance plan as a revision to their state implementation plan, with all attendant notice and comment procedures.

The PM 2.5 LMP Guidance, which contains requirements similar to those for an LMP under the PM 10 LMP Guidance, allows states to demonstrate that areas qualify for an LMP by showing that, based on their recent measured air quality, they are unlikely to violate the NAAQS in the future.

Specifically, the PM 2.5 LMP Guidance relies on the critical design value (CDV) concept. The Guidance directs states to calculate a site-specific CDV for the monitoring site with the highest design value in the area, and also for all other active monitoring sites in the area with complete data. The Guidance states that areas should show that the average design value (ADV) for each monitoring site in the area, i.e., the average of at least the most recent consecutive five years of PM 2.5 design values, does not exceed the associated CDV for each site. 4 The CDV calculation for a monitoring site involves parameters including: (1) the level of the relevant NAAQS; (2) the co-efficient of variation of recent design values measured at that site; and (3) a statistical parameter corresponding to a 10 percent probability of exceedance, such that sites with historically high variability in DVs result in a lower (or more stringent) CDV. Evaluating if the ADV for each monitoring site in the area is below the CDV demonstrates that the probability of a future exceedance, based on the area's historical air quality and variability, is less than 10 percent. Per EPA's transportation conformity regulations, areas with LMPs must also “demonstrate that it would be unreasonable to expect that such an area would experience enough motor vehicle emissions growth for a NAAQS violation to occur.”  5

Transportation conformity is required by section 176(c) of the CAA. Under that provision, conformity to a SIP means that transportation activities will not cause or contribute to new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS or any required interim emission reductions or other milestones in any area. See CAA 176(c)(1)(A) and (B). EPA's transportation conformity rule at 40 CFR part 93, subpart A, establishes the criteria and procedures to determine whether metropolitan transportation plans, transportation improvement programs, and federally supported highway and transit projects conform to the purpose of the SIP. Transportation conformity applies for transportation-related criteria pollutants in nonattainment areas and redesignated attainment areas with a CAA section 175A maintenance plan ( i.e., maintenance areas). 6

While qualification for the LMP option does not exempt an area from the need to determine conformity, in an area with an LMP, conformity may be demonstrated without a regional emissions analysis for the relevant NAAQS and pollutant (40 CFR 93.109(e)). An LMP must demonstrate that it is unreasonable to expect that the area would experience so much growth in on-road emissions during the maintenance period that a violation of the relevant NAAQS would occur. See 40 CFR 93.109(e). Hence, because no such impact is expected, areas with LMPs are not required to do a regional emissions analysis as part of a transportation conformity determination. See 40 CFR 93.109(e).

While areas with maintenance plans approved or found adequate under the LMP option are not required to do a regional emissions analysis (and are not subject to the budget test in 40 CFR 93.118), the areas remain subject to the other transportation conformity requirements of 40 CFR part 93, subpart A, including fulfilling project-level conformity requirements and consultation requirements.

The PM 2.5 LMP Guidance notes that an LMP may be particularly appropriate for a second maintenance plan, as the area will have demonstrated attainment of the PM 2.5 NAAQS for at least 8 years. To demonstrate that it would be unreasonable to expect that the area would experience enough motor vehicle growth for a NAAQS violation to occur, the guidance states that an LMP submission for an area's second maintenance plan should address the area's PM 2.5 air quality trends and the historical and projected vehicle miles traveled (VMT). Further, if re-entrained road dust has been found to be significant for PM 2.5 transportation conformity purposes under 40 CFR 93.102(b)(3), the plan should include an on-road PM 2.5 emissions analysis consistent with the methodology provided in Attachment B of the PM 10 LMP Guidance, included in the appendix for the PM 2.5 LMP Guidance, along with the discussion in the PM 2.5 LMP Guidance itself. If the on-road PM 2.5 emissions analysis is necessary, it would include a demonstration that for each monitoring site in the area, the ADV plus the expected on-road emissions growth estimate does not exceed the CDV.

In addition to the proposed action, EPA is notifying the public that the Agency is initiating the adequacy process for the Milwaukee-Racine LMP. See 40 CFR 93.118(e)(4). In the case of an LMP, EPA's adequacy review is to assess whether the demonstration required by 40 CFR 93.109(e) is met. Any comments on the adequacy of the submitted LMP for the Milwaukee-Racine area should be submitted to the docket established for this rulemaking. If EPA approves the second 10-year maintenance plan as an LMP or finds the submission adequate, the Milwaukee-Racine maintenance area will not be required to perform regional emissions analyses after 2025 for the 2006 PM 2.5 NAAQS. Note that the Milwaukee area has approved motor vehicle emission budgets for nitrogen oxides (NO X ), direct PM 2.5, sulfur dioxide (SO 2 ) and volatile organic compounds (VOCs) for the year 2025 from the first maintenance plan that must continue to be met in any transportation conformity determination made through the year 2025. 7 In addition, project-level conformity requirements as well as the other transportation conformity criteria continue to apply with respect to the 2006 PM 2.5 NAAQS for conformity determinations that occur through the maintenance period, i.e., through 2034. 8

We will complete the adequacy determination process either in the final action on this proposal or by notifying the state in writing, publishing a notice in the Federal Register and by posting the finding on EPA's adequacy web page. See 40 CFR 93.118(f).

EPA's general conformity program requirements do not distinguish between maintenance areas with an approved LMP and those with an approved “full maintenance plan,” which is developed and approved using the long-standing methods that demonstrate the area will maintain the NAAQS. Thus, maintenance areas with an approved LMP are subject to the same general conformity requirements under 40 CFR part 93, subpart B, as those with a “full maintenance plan.” Both a “full maintenance plan” and an LMP must be developed and approved per the requirements of CAA section 175A.

EPA redesignated the Milwaukee-Racine area from nonattainment to attainment of the NAAQS on April 22, 2014 (79 FR 22415). This LMP was developed as part of an interagency consultation process which includes Federal, state, and local agencies. Table 1 below shows the historical design values for the area since the area was redesignated in 2014. 9 The 2006 PM 2.5 NAAQS is attained when the 3-year average of the 98th percentile of 24-hour PM 2.5 concentrations is equal to or less than 35 µg/m 3 . As shown in table 1, the area has been measuring air quality well below the 2006 PM 2.5 NAAQS with decreasing PM 2.5 concentrations over time. The design values at the individual monitoring sites in the area also measure air quality well below the 2006 PM 2.5 NAAQS as shown in table 2.

We propose to find that the Milwaukee-Racine area meets the critical design value demonstration for a LMP. As noted above, the parameters of the CDV calculation, outlined in the PM 2.5 LMP Guidance, include the level of the relevant NAAQS, the co-efficient of variation of recent design values, and a statistical parameter corresponding to a 10 percent probability of future violation. The CDV demonstration is designed such that if a site's ADV is lower than the site's CDV, the probability of a future violation of the NAAQS is less than 10 percent. 10 The eligibility calculation equations for the CDV demonstration are shown in Table 3. Table 4 below contains the CDV and ADV for each monitor in the Milwaukee-Racine area, including the College Ave NR (monitor ID 550790056). EPA reviewed the data and methodology provided by the state and finds that each monitor's 5-year average design value is well below the corresponding site-specific CDV. 11

We also propose to find that Wisconsin has adequately demonstrated that it is unlikely there will be an increase in motor vehicle emissions growth sufficient to cause a NAAQS violation in the Milwaukee-Racine maintenance area. In the 2022 PM 2.5 LMP Guidance, which was released after Wisconsin submitted its SIP revisions, EPA clarified that an area submitting the second 10-year maintenance plan may be eligible for the LMP option as long as monitored air quality data and VMT trends support the LMP option. The state included both air quality data and VMT trend data of the maintenance area to satisfy transportation conformity regulations under an LMP option. The VMT projections considered by Wisconsin were based on transportation models provided by both the Wisconsin Department of Transportation (WDOT) and Southeastern Wisconsin Regional Planning Commission (SEWRPC). WDOT maintains a statewide travel demand model that projects average weekday VMT for each of the 72 counties in Wisconsin. WDOT provided modeled VMT for the years 2017 and 2050 for the Milwaukee-Racine area. WDNR linearly interpolated VMT results between the 2017 and 2050 values to obtain values for 2034, resulting in a 10.4 percent VMT growth percentage for 2017 to 2034. SEWRPC also has their own travel demand model that covers their seven-county region, which includes the Milwaukee-Racine maintenance area. Wisconsin also included in their submission the SEWRPC modeled projections under a high economic growth scenario from 2017 to 2035, showing a 13.6 percent VMT growth percentage. Ultimately, Wisconsin relied upon the highest VMT growth calculated from the different transportation models, at a VMT growth of 13.6 percent. A LMP would have to demonstrate that it would be unreasonable to expect that such an area would experience enough motor vehicle emissions growth for a NAAQS violation to occur. See 40 CFR 93.109(e). EPA is proposing to conclude that the higher VMT growth rate of 13.6 percent between 2017 and 2035 would not cause an exceedance of the CDV at the monitors listed in table 4 and therefore, that the Milwaukee-Racine maintenance area would qualify for the LMP option. 12 Wisconsin's submission included an on-road PM 2.5 emissions analysis consistent with the methodology provided in the 2001 PM 10 LMP Guidance, because at the time of the state's submission, the PM 2.5 LMP Guidance had not yet been issued by EPA. This specific on-road PM 2.5 analysis is most critical for areas where re-entrained road dust has been identified as a significant contributor to PM 2.5 concentrations. Re-entrained road dust was not determined to be a significant contributor to PM 2.5 concentrations in the Milwaukee-Racine area. EPA evaluated the state's analysis as part of its consideration of whether increases in VMT will lead to future exceedances of the 2006 PM 2.5 NAAQS. Based on that evaluation, EPA is proposing to conclude that the results of the analysis provide further evidence that they will not. EPA is proposing to approve the LMP for the Milwaukee-Racine area. Per 40 CFR 93.109(e) an area is not required to satisfy the regional emissions analysis for § 93.118 and/or § 93.119 for a given pollutant and NAAQS, in this instance the 2006 PM 2.5 NAAQS. However, the first 10-year maintenance plan included motor vehicle emissions budgets for 2025. Therefore, if 2025 is within the timeframe of any transportation plan or transportation improvement program (TIP) and transportation conformity is determined for that plan or TIP, a regional emissions analysis is required for 2025.

In addition to the VMT trends, the air quality trends in the area provided in the state's submission (Table 1) also support the LMP option. From the time the area started attaining the NAAQS (2014) through 2020, ambient PM 2.5 concentrations have decreased substantially. There has been a 19.5 percent decrease in the annual 98th percentile PM 2.5 concentrations in the Milwaukee-Racine area during this time period. 13 Air quality trends from 2021 and 2022 in table 1 also show ambient PM 2.5 concentrations well below the 2006 PM 2.5 NAAQS.

The PM 2.5 LMP guidance further notes that, to the extent that the air agency is submitting a second 10-year maintenance plan for PM 2.5 , a record showing that the area design value is lower than the CDV, coupled with air quality data demonstrating the area has already been maintaining the NAAQS for at least 8 years, provides EPA with further confidence that the area will continue to maintain the relevant PM 2.5 standard. Given the current PM 2.5 design values in the area and the demonstrated downward trend in PM 2.5 concentrations over the last ten years, and the state's analysis of VMT trends discussed above, we propose to find that the state has adequately demonstrated that, consistent with 40 CFR 93.109(e) and the PM 2.5 LMP Guidance, it would be unreasonable to expect that the area will experience a growth in motor vehicle emissions sufficient to cause a violation of the 2006 PM 2.5 NAAQS. EPA therefore proposes to find that the Milwaukee-Racine 2006 PM 2.5 maintenance area meets the qualification criteria set forth in the PM 2.5 LMP Guidance.

The following is a summary of EPA's interpretation of the section 175A requirements and EPA's evaluation of how each requirement is met. Under the LMP option, the state will be expected to determine on a regular basis that the criteria are still being met. If the state determines that the LMP criteria are not being met, it must take action to reduce PM 2.5 concentrations enough to requalify. One possible approach the state could take is to implement the contingency measures contained in its maintenance plan. See Section 6 of the state's submittal, placed in the docket for this action, for a description of the contingency measures. If the attempt to reduce PM 2.5 concentrations fails, or if it succeeds but in future years it becomes necessary again to address increasing PM 2.5 concentrations in an area, the area will no longer qualify for the LMP option.

As noted above, states that qualify for an LMP must still meet the other elements of a maintenance plan, as articulated in the Calcagni Memo. This includes an attainment year emissions inventory.

WDNR's Milwaukee-Racine PM 2.5 LMP submission includes an emissions inventory, with a base year of 2017. This inventory was prepared as part of the 2017 National Emissions Inventory (NEI), 14 Version 2, under EPA's Air Emissions Reporting Rule (73 FR 76539, December 17, 2008). The 2017 base year represents the most recent emissions inventory data available when the state prepared the submissions, is representative of the level of emissions during the time that the area shows monitored attainment of the NAAQS and is consistent with the data used to determine applicability of the LMP option ( i.e., having no violations of the NAAQS during the 5-year period used to calculate the design value). Table 5 shows the 2017 emissions of the Milwaukee-Racine maintenance area in tons per day included in the state's submission. EPA also considered emissions from the 2020 NEI as shown in table 6, as more recent emissions data was subsequently available since Wisconsin's submission. The 2017 NEI emissions from table 5 show slightly overall higher emissions of certain pollutants compared to the 2020 NEI emissions from table 6 in the Milwaukee-Racine maintenance area. Some of the differences may be attributed to changes and improvements in the process and methods used for estimating emissions while creating the 2020 NEI compared to 2017 methods. Key process changes for the 2020 cycle includes changes in pollutant, source classification codes, and North American Industry Classification System codes, refined quality assurance checks and features. 15 In summary, the 2020 NEI updated emission methods pertain to nonpoint solvent utilization, nonpoint agricultural silage, nonpoint asphalt paving, improved VOC and PM 2.5 speciation models, improvements to residential wood combustion emission factors and speciation, and biogenic model updates.

Executive Summary

Why we need to publish a rule. Under the Act (16 U.S.C. 1531 et seq. ), 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 an endangered species within the foreseeable future throughout all or a significant portion of its range). If we determine that a species warrants listing, we must list the species promptly and designate the species' critical habitat to the maximum extent prudent and determinable. We have determined that the bushy whitlow-wort meets the Act's definition of an endangered species; therefore, we are proposing to list it as such and proposing a designation of its critical habitat. Both listing a species as an endangered or threatened species and making a critical habitat designation 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. We propose to list the bushy whitlow-wort as an endangered species under the Act, and we propose the designation of critical habitat for the species.

The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that the bushy whitlow-wort is endangered due to threats from wind energy development (Factor A) and the demographic and genetic consequences of low population redundancy and small population sizes (Factor E).

Section 4(a)(3) of the Act requires the Secretary of the Interior (Secretary), to the maximum extent prudent and determinable, to designate critical habitat concurrent with listing. 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.

We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other governmental agencies, Native American Tribes, the scientific community, industry, or any other interested parties concerning this proposed rule.

We particularly seek comments concerning:

(1) The species' biology, range, and population trends, including:

(a) Biological or ecological requirements of the species, including habitat requirements for nutrition, reproduction, or pollination;

(b) Genetics and taxonomy;

(c) Historical and current range, including distribution patterns and the locations of any additional populations of this species;

(d) Historical and current population levels, and current and projected trends; and

(e) Past and ongoing conservation measures for the species, its habitat, or both.

(2) Threats and conservation actions affecting the species, including:

(a) Factors that may be affecting the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors;

(b) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species; and

(c) Existing regulations or conservation actions that may be addressing threats to this species.

(3) Additional information concerning the historical and current status of this species.

(4) Specific information on:

(a) The amount and distribution of bushy whitlow-wort habitat;

(b) Any additional areas that should be included in the critical habitat designation because they (i) are occupied at the time of listing and contain the physical or biological features that are essential to the conservation of the species and that may require special management considerations or protection, or (ii) are unoccupied at the time of listing and are essential for the conservation of the species;

(c) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change; and

(d) Whether occupied areas are adequate for the conservation of the species. We seek this information to help us evaluate the potential to include areas not occupied at the time of listing in the critical habitat designation. Please provide specific information regarding whether or not unoccupied areas would, with reasonable certainty, contribute to the conservation of the species and contain at least one physical or biological feature essential to the conservation of the species. We also seek comments or information regarding whether areas not occupied at the time of listing qualify as habitat for the species.

(5) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.

(6) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation, and the related benefits of including or excluding specific areas.

(7) Information on the extent to which the description of probable economic impacts in the draft economic analysis is a reasonable estimate of the likely economic impacts and any additional information regarding probable economic impacts that we should consider.

(8) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act. If you think we should exclude any additional areas, please provide information supporting a benefit of exclusion.

(9) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.

Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.

Please note that submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, do not provide substantial information necessary to support a determination. Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or a threatened species must be made solely on the basis of the best scientific and commercial data available, and section 4(b)(2) of the Act directs that the Secretary shall designate critical habitat on the basis of the best scientific data available.

You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES . We request that you send comments only by the methods described in ADDRESSES .

If you submit information via https://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on https://www.regulations.gov.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on https://www.regulations.gov.

Our final determinations may differ from this proposal because we will consider all comments we receive during the comment period as well as any information that may become available after this proposal. Based on the new information we receive (and, if relevant, any comments on that new information), we may conclude that the species is threatened instead of endangered, or we may conclude that the species does not warrant listing as either an endangered species or a threatened species. For critical habitat, our final designation may not include all areas proposed, may include some additional areas that meet the definition of critical habitat, or may exclude some areas if we find the benefits of exclusion outweigh the benefits of inclusion and exclusion will not result in the extinction of the species. In our final rule, we will clearly explain our rationale and the basis for our final decisions, including why we made changes, if any, that differ from this proposal.

Section 4(b)(5) of the Act provides for a public hearing on this proposal, if requested. Requests must be received by the date specified in DATES . Such requests must be sent to the address shown in FOR FURTHER INFORMATION CONTACT . We will schedule a public hearing on this proposal, if requested, and announce the date, time, and place of the hearing, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing. We may hold the public hearing in person or virtually via webinar. We will announce any public hearing on our website, in addition to the Federal Register . The use of virtual public hearings is consistent with our regulations at 50 CFR 424.16(c)(3).

We recognized the bushy whitlow-wort as a candidate for listing under the Act in 1975 (40 FR 27824; July 1, 1975) and 1985 (50 FR 39526; September 27, 1985). The species was removed from the candidate list twice, in 1980 (45 FR 82480; December 15, 1980) and 2006 (71 FR 53756; September 12, 2006), due to insufficient information about its biological vulnerability and threats.

In 2007, we received a petition to list 475 species, including bushy whitlow-wort, in the southwestern United States as endangered or threatened under the Act. In 2009, in response to this petition, we published a 90-day finding that the petitioned action may be warranted (74 FR 66866; December 16, 2009). Therefore, we initiated review of the status of the species to determine if the petitioned action is warranted.

A species status assessment (SSA) team prepared an SSA report for the bushy whitlow-wort. 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 bushy whitlow-wort SSA report. We sent the SSA report to eight independent peer reviewers and received no responses. We did, however, receive one review from Texas Parks and Wildlife Department, which provided information on wind turbines near bushy whitlow-wort populations. This information prompted us to reevaluate the immediacy of the threat of wind development, as further discussed below.

The SSA report (USFWS 2023, pp. 1-7) presents a thorough review of the taxonomy, life history, and ecology of bushy whitlow-wort ( Paronychia congesta ).

Bushy whitlow-wort is a perennial herbaceous plant in the carnation family ( Caryophyllaceae ) that has only been found in a very small area of northwestern Jim Hogg County in south Texas. The Texas Parks and Wildlife Department's (TPWD's) Natural Diversity Database (TXNDD) maintains geographic and population data of bushy whitlow-wort and other plant and animal species of conservation concern in Texas. These data are organized by standard geographical units for populations and habitats called “element occurrences” (EOs). Only two small EOs of bushy whitlow-wort have been found, and they are referred to as E.O. 1 and E.O. 2. The two EOs cover a total area of 41.96 acres (ac) (16.98 hectares (ha)) and are only 1.3 miles (mi) (2.1 kilometers (km)) apart; when the disturbed areas of the Farm to Market (FM) 649 right-of-way (ROW), unpaved ranch roads, and cleared pipeline ROWs are removed, the occupied area is 41.96 acres (16.98 hectares). There are only 12 documented observations of the two EOs from 1963 through 2020. The maximum numbers of individuals observed at the two EOs are about 2,000 individuals at E.O. 1 in 1987, and 1,904 individuals at E.O. 2 in 1994 (TXNDD 2017, unpaginated). At other times, surveyors recorded from 0 to 633 individuals (TXNDD 2017, unpaginated). This variation may have been due, in part, to the withering of the diminutive plant's stems during drought, making them undetectable; at most, the tufted mounds of foliage stand less than 10 inches (in) (25 centimeters (cm)) tall.

The few recorded observations of bushy whitlow-wort have yielded some, but limited, information about its life history. The species flowers from spring to late summer, in response to rainfall, and produces tiny, one-seeded fruits. We know nothing about the pollinators, pollination biology, seed dispersal, seed dormancy, seed germination, rates of recruitment, mortality, demographic trends, reproductive age, or lifespan of bushy whitlow-wort. However, the woody rootstocks reveal that the species is clearly perennial, and possibly long-lived. Therefore, it is possible that, if bushy whitlow-wort does have low or sporadic recruitment, this may be compensated by long average lifespans.

The two documented populations of bushy whitlow-wort occupy nearly barren, exposed, sloping outcrops of calcareous rock and/or indurated caliche along the boundary of the Goliad and Catahoula geological formations. “Caliche” is a word of Spanish origin that generally refers to soils or minerals of whitish appearance. However, the term has a specific geological meaning, referring to soil strata of calcium carbonate that precipitated as water evaporated from the soil. In contrast, limestone consists of calcium carbonate deposits that formed in ocean sediments. Caliche strata often form in arid regions; those of the Goliad formation formed in an arc parallel to the present Gulf of Mexico (Baskin and Hulbert 2008, pp. 93, 96-97).

This geological transition zone from the Goliad to Catahoula formations is known locally as the Bordas Escarpment. In the vicinity of the bushy whitlow-wort populations, elevations drop about 151 feet (ft) (46 meters (m)) from northeast to southwest; these slopes occur along the uppermost reaches of the Arroyo Veleño watershed, a seasonal watercourse that flows into the Rio Grande at Zapata, Texas. The Goliad formation contains deposits of clay, sandstone, marl, caliche, limestone, and conglomerate. The older Catahoula formation contains deposits of clay, mudstone, volcanic tuff ( i.e. rock formed from volcanic ash), volcanic conglomerate, sandstone, and sand, with some gypsum and calcareous concretions. In some places, outcrops of Goliad caliche overlie deep beds of Catahoula tuff. These tuff deposits are often calichified (Galloway et al. 1977, p. 37). Bushy whitlow-wort is likely to be a geo-endemic species that is restricted to exposed outcrops of Goliad formation caliche or calcareous rock; alternatively, it may be even more highly restricted to exposed calcareous tuff that occurs in specific places along the Goliad-Catahoula boundary. The species is likely to be a geo-endemic that is uniquely adapted to the soil or geological features that occur there.

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). Our analysis for this decision applied the regulations that are currently in effect, which include the 2019 revisions. However, we proposed further revisions to these regulations on June 22, 2023 (88 FR 40764). In case those revisions are finalized before we make a final status determination for this species, we have also undertaken an analysis of whether the decision would be different if we were to apply those proposed revisions. We concluded that the decision would have been the same if we had applied the proposed 2023 regulations. The analyses under both the regulations currently in effect and the regulations after incorporating the June 22, 2023, proposed revisions are included in our decision file.

The Act defines an “endangered species” as a species that is in danger of extinction throughout all or a significant portion of its range, and a “threatened species” as a species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether any species is an endangered species or a threatened species because of any of the following factors:

(A) The present or threatened destruction, modification, or curtailment of its habitat or range;

(B) Overutilization for commercial, recreational, scientific, or educational purposes;

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

(E) Other natural or manmade factors affecting its continued existence.

These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species' continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects.

We use the term “threat” to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term “threat” includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term “threat” may encompass—either together or separately—the source of the action or condition or the action or condition itself.

However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an “endangered species” or a “threatened species.” In determining whether a species meets either definition, we must evaluate all identified threats by considering the species' expected response and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species, such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the definition of an “endangered species” or a “threatened species” only after conducting this cumulative analysis and describing the expected effect on the species 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 we 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 the foreseeable future as a particular number of years. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider the timeframes applicable to the relevant threats and to the species' likely responses to those threats in view of its life-history characteristics. Data that are typically relevant to assessing the species' biological response include species-specific factors such as lifespan, reproductive rates or productivity, certain behaviors, and other demographic factors.

The SSA report documents the results of our comprehensive biological review of the best scientific and commercial data regarding the status of the species, including an assessment of the potential threats to the species. The SSA report does not represent our decision 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 bushy whitlow-wort's viability, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency is the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years), redundancy is the ability of the species to withstand catastrophic events (for example, droughts, large pollution events), and representation is the ability of the species to adapt to both near-term and long-term changes in its physical and biological environment (for example, climate conditions, pathogens). In general, species viability will increase with increases in resiliency, redundancy, and representation (Smith et al. 2018, p. 306). Using these principles, we identified the species' ecological requirements for survival and reproduction at the individual, population, and species levels, and described the beneficial and risk factors influencing the species' viability.

The SSA process can be categorized into three sequential stages. During the first stage, we evaluated 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 which we then used to inform our regulatory decision.

The following is a summary of the key results and conclusions from the SSA report; the full SSA report can be found at Docket No. FWS-R2-ES-2023-0102 on https://www.regulations.gov and at https://ecos.fws.gov/ecp/species/6441.

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.

Our knowledge of the requirements of bushy whitlow-wort individuals is limited because the species has been observed on very few occasions and in only two places. We know nothing about the breeding system, pollinators, pollination biology, seed dispersal, seed dormancy, seed germination, rates of recruitment, mortality, demographic trends, reproductive age, or lifespan. Although we have no data on the reproductive age or average lifespans of individuals, the woody rootstocks are evidence that individuals are perennial and possibly long-lived.

Individuals flower as early as April or as late as August in response to rainfall; the timing and amount of rainfall are likely to be important. Although we have no data to quantify these requirements, the average annual precipitation in the area where bushy whitlow-wort occurs is 23.8 in (60.4 cm), with the greatest amounts from May to July and September to October (NCDC 2020, entire). The average daily maximum temperature exceeds 95 degrees Fahrenheit (°F) (35 degrees Celsius (°C)) from June through August, and the average frost-free period is from February 8 to December 11 (307 days) (Texas Almanac 2020, p. 2).

Bushy whitlow-wort is adapted to the hot, semi-arid, subtropical climate of the Tamaulipan shrublands of south Texas, where the dominant vegetation consists of dense, spiny shrubs reaching 4 to 6 ft (1.2 to 1.8 m) in height. However, within this shrubland ecosystem, the species has only been found in nearly barren rocky outcrops, along slopes of the Bordas Escarpment. These outcrops consist of calcified volcanic tuff formed along the exposed contact of the Goliad and Catahoula geological formations. The sites are mostly barren because it is difficult for roots to penetrate the calcified tuff, and the nearly white rocks reflect and intensify sunlight. Since the species has not been found elsewhere, it appears to require this type of substrate. Since not found elsewhere, the species may be more specifically restricted to outcrops of exposed calichified volcanic tuff in discrete locations along the boundary of the Goliad and Catahoula geological formations. The occupied sites occur in areas classified as Zapata soils and Cuevitas-Randado association; these soil types, or soils with very similar descriptions, occur in at least six other south Texas counties.

We developed a potential habitat model based on the distribution of the geological, soil, and slope features because the bushy whitlow-wort is likely a geo-endemic that is uniquely adapted to such features. The model is based on only two population sites, and is a hypothesis based on the very limited available data on the species' habitat and distribution. This model indicates that a range of thousands to tens of thousands of hectares of potential habitat exist in south Texas; the largest clusters of potential habitat are in Webb, Jim Hogg, Zapata, and Starr Counties. Based on available botanical surveys, we estimate that less than 1 percent of this potential habitat has been surveyed by botanists qualified to identify the species. Nevertheless, extensive plant surveys have been conducted where caliche outcrops occur on tracts of the Lower Rio Grande Valley National Wildlife Refuge in southern Starr and southwestern Hidalgo Counties, and bushy whitlow-wort has never been reported there.

Accordingly, while the model indicates a large potential range, the fact that the species has been found in very limited portions of this range, even when surveyed, indicates that the potential range is smaller than the model would suggest. A reason for such limitation may be that the calcification of volcanic tuff deposits is a phenomenon that occurs sporadically along the boundary of the Goliad and Catahoula formations, and if we assume that bushy whitlow-wort is more specifically restricted to outcrops of calcareous tuff, its potential habitats would be only a small portion of the estimated potential habitat. This model could be improved if this species had been documented at more sites or by using additional geographic layers that explain the species' distribution. However, we are not aware of a data layer that specifically delineates areas of exposed calcareous tuff or any other geographic data layers that explain the distribution of bushy whitlow-wort. While this potential habitat model helps us determine where the species may be found and helps guide future surveys, the best available information indicates that the species is unlikely to occur throughout the areas predicted by the model.

In order to characterize the viability of bushy whitlow-wort, we evaluated population needs for resiliency, redundancy, and representation. For habitat and demographic factors influencing resiliency, we assessed the habitat condition, the number of mature individuals, and the demographic trends of the populations.

For habitat condition, we consider high-quality habitats to be those that have undisturbed soil and geologic profiles and intact native vegetation. Prior soil or geological disturbance and less than 20 percent invasive plant cover characterize populations with moderate habitat quality, while recent or extensive soil or geological disturbance and greater than 20 percent invasive plant cover is considered characteristic of populations with low-quality habitat.

A bushy whitlow-wort population with high resiliency would be large enough to have a high probability of surviving a prescribed period of time. The minimum viable population (MVP) is defined as a population that would have greater than 90 percent probability of persistence over 100 years (Mace and Lande 1991, p. 151). Using a method for estimating plant MVPs (Pavlik 1996, p. 137) that incorporates our knowledge of various life-history factors, we estimate that the MVP for bushy whitlow-wort is approximately 1,300 reproductively mature individuals (USFWS 2023, p. 20). Based on this information, we estimate that a high condition population would have more than 1,300 individuals, a moderate condition population would range from 650 to 1,300 individuals, and a low condition population would have fewer than 650 individuals.

Stable or increasing demographic trends over time are indicative of populations in good condition. This means that recruitment of new individuals is at least as great as mortality. Population resiliency also relies on sufficient numbers of individuals that are not too closely related or too widely dispersed for effective pollination, outcrossing, and seed production. Thus, high condition populations have greater net recruitment than net mortality over a 10-year period, while low resiliency populations have lower net recruitment than net mortality. If such demographic trends are unknown, we considered this to be indicative of moderate condition.

Determination of population sizes and numbers requires a method for delineating populations. However, we currently have no data to estimate the extent of gene flow for bushy whitlow-wort through pollination and seed dispersal. We adopted a provisional minimum separation distance of 0.6 mi (1.0 km) to delineate populations of bushy whitlow-wort, based on standards applied by TXNDD and NatureServe when the limits of gene flow are unknown (NatureServe 2002, p. 26).

Redundancy indicates the number of populations and their distribution over the species' range. Species that have more populations distributed over a broader geographic range have a greater chance of surviving catastrophic events. Greater redundancy increases the probability that at least some populations will survive catastrophic events, such as extended drought. These populations should be distributed over the species' known range. For bushy whitlow-wort, we know of only two populations located 1.3 mi (2.1 km) apart.

Representation refers to the breadth of genetic diversity and environmental adaptation necessary to conserve long-term adaptive capability. Populations must have enough genetic diversity to be able to adapt and survive when threatened by new pathogens, competitors, or changing environmental conditions. Furthermore, inbreeding increases within populations that lack genetic diversity; if the species is susceptible to inbreeding depression, this would lead to a loss of individual fitness, reduced reproductive output, higher mortality, and population decline. If the breeding system requires outcrossing, seed production and recruitment would decline within populations that lack genetic diversity. We do not know of any differentiation in representation in the two bushy whitlow-wort populations.

The development of new oil and gas wells and infrastructure is a source of threats to the known populations of bushy whitlow-wort that is of low immediacy, but potentially high severity and large extent. Wind energy development is a severe source of threats throughout the species' range. These sources of threats can cause long-term impacts to the natural landscape, including the loss of native vegetative cover and soil compaction, and may include contamination of sites with petroleum or chemical wastes used in drilling operations. In addition, the proliferation of roads supporting this development accelerates the spread of invasive plants, such as buffelgrass ( Pennisetum ciliare ). These threats, their sources, and their effects to bushy whitlow-wort are summarized below.

We also considered other threats to the species. Urban and residential development and cattle grazing are not significant sources of threats to the species. Climate changes will likely affect bushy whitlow-wort in complex ways, but we cannot currently project the net effect of positive and negative interactions.

The development of new oil and gas wells, wind turbine sites, and associated access roads, pipelines, and power lines requires the complete removal of existing vegetation and the restructuring of the soil profile with bulldozers, road graders, and steam rollers. Even after well sites are abandoned, the compaction caused by the operation of heavy machinery and tractor-trailers impedes plant growth for many years. Plants do not establish or grow well in compacted soils because their roots cannot penetrate far into compacted material. Soil compaction also impedes the infiltration of water into the soil, leading to increased runoff and the formation of gully erosion, which may remove soil and uproot vegetation well beyond the original construction sites.

Nonnative, invasive grass species displace native plants by competing for water, nutrients, and light, and their dense root systems prevent germination of native plant seeds (Texas Invasives 2019, unpaginated). Buffelgrass is a perennial bunchgrass introduced from Africa in 1946 that has been widely planted in south Texas for livestock forage. It is now one of the most abundant introduced grasses in south Texas. Buffelgrass rapidly colonizes disturbed soils, such as along roadways, and the wind-borne seeds allow it to spread further into intact habitats; it often creates homogeneous monocultures by out-competing native plants for essential resources (Best 2009, p. 310; Lyons et al. 2013, p. 8), and it produces phytotoxins in the soil that inhibit the growth of neighboring native plants (Vo 2013, unpaginated).

Both EO 1 and EO 2 are close to FM 649 and are vulnerable to buffelgrass colonization. EO 2 is bisected by highway FM 649, which converted about 1.6 ha (4.0 ac) of habitat to pavement and graded right-of-way. In 2014, no bushy whitlow-wort individuals were observed during a survey of the public ROW of FM 649 where it transects EO 2 (Strong and Williamson 2015, p. 126; TXNDD 2017, unpaginated). However, this ROW had recently been graded and was partially colonized by buffelgrass. Bushy whitlow-wort may have been eradicated from the ROW by disturbance and buffelgrass competition.

Bushy whitlow-wort habitat occurs within areas of extensive oil and gas exploration and extraction. An area of intensive energy development in northern Zapata County is about 13 mi (21 km) west of the bushy whitlow-wort populations. Occupied and potential bushy whitlow-wort habitats are also about 18.6-31.0 mi (30-50 km) southeast of the Eagle Ford shale area of oil and natural gas production. Large reserves of oil and natural gas remain in the Eagle Ford shale, and fluctuation in petroleum markets may lead to new well production there, and perhaps also in the vicinity of bushy whitlow-wort habitats. We cannot project the likelihood of if or when this will occur. Petroleum and gas development in the Eagle Ford shale is not likely to have a direct effect on bushy whitlow-wort habitats, since they are physically separated, but renewed development of petroleum reserves that may underlie these habitats could cause their destruction and degradation. Oil and gas well development includes road building and ROW maintenance, and it increases the risk of contamination of these habitats. As a result, there are long-term impacts to the natural landscape, including the loss of native vegetative cover and soil compaction, as well as the potential contamination of sites with petroleum or chemical wastes used in drilling operations. In addition, the proliferation of roads supporting this development accelerates the spread of invasive plants, such as buffelgrass.

Petroleum or chemical wastes used in drilling operations can contaminate sites either through direct impacts to existing plants, or indirectly through soil contamination. Soil contamination may lead to absorption of toxic materials, which may result in death of individual plants or may impact a plant's uptake of nutrients that are necessary for its growth and overall health.

The occupied and potential habitats of bushy whitlow-wort are closely aligned with areas of the highest average wind speed in South Texas; consequently, they have high potential for wind energy development. Wind power generation continues to grow in south Texas, including major new proposed wind farms in Jim Hogg and Zapata Counties (Contreras 2019, entire; Bordas Renewable Energy 2020, unpaginated; Corso 2020, entire). Wind farm development entails land clearing for arrays of wind turbines, access roads, and power lines. Since 2015, more than 1,000 wind turbines (Hoen et al. 2018, entire) have been constructed in the seven-county area of south Texas where we identified potential habitat, and new construction continues at a very rapid pace. Twenty-one turbines are located from 0.5 to 2.6 mi (0.8 to 4.2 km) from the known EOs of bushy whitlow-wort, and about 20 new turbines have been proposed, but not yet permitted, within this immediate area. In other regions of the United States, only about 19 percent of proposed wind projects are completed (DOE 2021, p. 3); nevertheless, Texas has installed more wind capacity than any other U.S. State in recent years (DOE 2022, p. 6), and the Electric Reliability Council of Texas, Inc. (ERCOT) projects total wind generation capacity additions ranging from 13,700 megawatts (MW) to 27,100 MW, the equivalent of 4,500 to 9,000 turbines, over the next 15 years in their long-term system assessment (ERCOT 2022, p. 7). The development of new wind farms and the concomitant land disturbance is an immediate threat to the known populations of bushy whitlow-wort, and a single development project could easily destroy a large portion of the species' known resources.

The two known occupied habitats of bushy whitlow-wort have been used for livestock grazing for many years. Given that cattle are not attracted to the barren rock outcrops where the species occurs, the impact of trampling should be negligible, and we conclude that cattle grazing is not a significant threat to the species' survival. The very shallow soils of occupied populations are underlaid by indurated caliche along steep slopes and are not suitable for row crops or other agricultural uses. Thus, we do not anticipate habitat losses due to a change in agricultural use.

One of the two EOs was bisected by highway FM 649 in 1954; we estimate that the highway construction and ROW destroyed about 4.03 ac (1.63 ha) of habitat. We are not aware of planned highway construction that would affect the occupied habitats. Due to the low population density in rural Jim Hogg County and the distance to population centers, currently there are no projected habitat losses to urban and residential development.

To evaluate how the climate of bushy whitlow-wort habitats may change, we used the National Climate Change Viewer (U.S. Geological Survey 2020, unpaginated) to compare past and projected future climate parameters of annual mean maximum temperature, annual mean precipitation, and annual evaporative deficit for Jim Hogg County, Texas. The magnitude of projected changes varies widely, depending on which scenario of future greenhouse gas emissions is used.

We do not know how these projected climate changes, forecast by the range of models and emissions scenarios, will affect the interactions of bushy whitlow-wort with its habitat and associated plant and animal community. Higher temperatures and increasing evaporative deficit could reduce the species' growth, reproduction, and survival. Alternatively, these changes could increase the areas of nearly barren, exposed outcrops, thus increasing the amount of available habitat. Warmer winters might extend the growing season to the species' benefit. Climate changes might affect bushy whitlow-wort differently from species it competes with, such as the introduced, invasive buffelgrass. Thus, although it is likely that the projected climate changes will affect the viability of bushy whitlow-wort, we cannot confidently project what the net result of beneficial and detrimental effects will be.

To assess resiliency, we considered habitat quality, the number of mature individuals, and the demographic trends of the two populations. Habitats have been moderately disturbed in the past by gravel roads and petroleum infrastructure (EO 1) and a highway ROW (EO 2) but are otherwise intact. Additionally, habitats have been minimally disturbed by invasive plant cover due to their isolated location and rocky nature. Given this level of disturbance and minimal invasive plant cover, we consider current habitat to be in the moderate-quality condition category.

Surveyors estimated about 2,000 individuals at EO 1 in 1987 and extrapolated 1,904 individuals at EO 2 in 1994. The only recent census, in 2014, detected 633 individuals in a very small portion of one EO, representing less than 5 percent of the total area of the EOs. Although we do not know the current size of either population, since the habitats are relatively intact, the best available information indicates that both exceed the MVP level of 1,300 individuals, resulting in a high-condition category for this demographic factor (USFWS 2023, p. 31).

We have no information on demographic trends. However, given continued presumed presence of the bushy whitlow-wort at the two EOs, we assumed that net recruitment is approximately equal to net mortality resulting in a moderate-condition category for this demographic factor (USFWS 2023, p. 31). Combining the current conditions of these habitat and demographic factors ( i.e. moderate condition for habitat quality, high condition for number of mature individuals, and moderate condition for demographic trends) we conclude that bushy whitlow-wort has two moderately resilient populations.

Bushy whitlow-wort has low redundancy with only two known moderately resilient populations located 1.3 mi (2.1 km) apart. The degree of representation remains unknown, and we do not know of any differentiation in representation in the two populations. Additionally, small, isolated populations are more vulnerable to catastrophic losses caused by random fluctuations in recruitment (demographic stochasticity) or variations in rainfall or other environmental factors (environmental stochasticity) (USFWS 2016, p. 20). Small, reproductively isolated populations are susceptible to the loss of genetic diversity, to genetic drift, and to inbreeding (Barrett and Kohn 1991, pp. 3-30). There may not have been any recent gene flow between the two known populations of bushy whitlow-wort, and they may already suffer from genetic bottlenecks, genetic drift, inbreeding, and loss of allelic diversity (USFWS 2023, p. 25).

As part of the SSA, we also developed three future scenarios to capture the range of uncertainties regarding future threats and the projected responses by bushy whitlow-wort. Our scenarios assumed energy development and climate change would have either limited or no impacts on the species or extensive adverse impacts in the future. Because we determined that the current condition of the bushy whitlow-wort is consistent with an endangered species (see Determination of Bushy Whitlow-Wort's Status, below), we are not presenting the results of the future scenarios in this proposed rule. Please refer to the SSA report (USFWS 2023, pp. 32-35) for the full analysis of future scenarios.

We note that, by using the SSA framework to guide our analysis of the scientific information documented in the SSA report, we have analyzed the cumulative effects of identified threats and conservation actions on the species. To assess the current and future condition of the species, we evaluate the effects of all the relevant factors that may be influencing the species, including threats and conservation efforts. Because the SSA framework considers not just the presence of the factors, but to what degree they collectively influence risk to the entire species, our assessment integrates the cumulative effects of the factors and replaces a standalone cumulative effects analysis.

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.

After evaluating threats to the species and assessing the cumulative effect of the threats under the Act's section 4(a)(1) factors, we found that there are only two known EOs of bushy whitlow-wort with a combined occupied area of 41.96 ac (16.98 ha) (the area we consider occupied does not include the FM 649 ROW, the beds of unpaved ranch roads, or cleared pipeline ROWs). With only two moderately resilient populations and the small area of occurrence, the species is extremely vulnerable to both natural and anthropogenic impacts. Since the two EOs are only 1.3 mi (2.1 km) apart, this vulnerability is exacerbated by their close proximity.

Bushy whitlow-wort currently has low population redundancy, as only two EOs of bushy whitlow-wort have been documented. The demographic and genetic consequences of small population sizes (Factor E) put the species at a higher risk of extinction due to the threats described above. A single event, such as prolonged drought, or a single development project could easily destroy a large portion of the species' known remaining resources. The close proximity of the two EOs increases this vulnerability.

In particular, the occupied habitats of bushy whitlow-wort are closely aligned with areas of high potential for wind energy development (Factor A), and major proposed wind farms in Jim Hogg and Zapata Counties will entail land clearing for arrays of wind turbines, access roads, and power lines, thereby reducing available habitat for bushy whitlow-wort. The development of new wind farms and the concomitant clearing of habitat is an immediate, severe threat to the known populations of bushy whitlow-wort and potential habitat throughout the species' range. We used the best scientific and commercial data available to analyze the bushy whitlow-wort's current conditions. Based on this information we have concluded that the species is in danger of extinction throughout all of its range due to the severity, extent, and immediacy of threats currently impacting the species. We find that a threatened species status is not appropriate because bushy whitlow-wort has an extremely limited geographic range, the species' populations are very small, those populations are currently at risk of losing habitat from ongoing wind energy development. The threats to the species are currently ongoing and occurring across the entire range of the species. Due to the limited number of populations and the immediate threats to those populations, the species is in danger of extinction currently. Thus, after assessing the best available information, we determine that the bushy whitlow-wort is in danger of extinction throughout all of its range.

Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so within the foreseeable future throughout all or a significant portion of its range. We have determined that the bushy whitlow-wort is in danger of extinction throughout all of its range and accordingly did not undertake an analysis of any significant portion of its range. Because the bushy whitlow-wort warrants listing as endangered throughout all of its range, our determination does not conflict with the decision in Center for Biological Diversity v. Everson, 435 F. Supp. 3d 69 (D.D.C. 2020), which vacated the provision of the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37578; July 1, 2014) providing that if the Service determines that a species is threatened throughout all of its range, the Service will not analyze whether the species is endangered in a significant portion of its range.

Our review of the best available scientific and commercial information indicates that the bushy whitlow-wort meets the Act's definition of an endangered species. Therefore, we propose to list the bushy whitlow-wort as an endangered species in accordance with sections 3(6) and 4(a)(1) of the Act.

Conservation measures provided to species listed as endangered or threatened species under the Act include recognition as a listed species, planning and implementation of 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, including the Service, 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 goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.

The recovery planning process begins with development of a recovery outline made available to the public soon after a final listing determination. The recovery outline guides the immediate implementation of urgent recovery actions while a recovery plan is being developed. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) may be established to develop and implement recovery plans. The recovery planning process involves the identification of actions that are necessary to halt and reverse the species' decline by addressing the threats to its survival and recovery. The recovery plan 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. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery outline, draft recovery plan, final recovery plan, and any revisions will be available on our website as they are completed ( https://www.fws.gov/program/endangered-species ), or from our Texas Coastal Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration ( e.g., restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands.

If this species is listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost-share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the State of Texas would be eligible for Federal funds to implement management actions that promote the protection or recovery of the bushy whitlow-wort. Information on our grant programs that are available to aid species recovery can be found at: https://www.fws.gov/service/financial-assistance.

Although the bushy whitlow-wort is only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT ).

Section 7 of the Act is titled Interagency Cooperation and mandates all Federal action agencies to use their existing authorities to further the conservation purposes of the Act and to ensure that their actions are not likely to jeopardize the continued existence of listed species or adversely modify critical habitat. Regulations implementing section 7 are codified at 50 CFR part 402.

Section 7(a)(2) states that each Federal action agency shall, in consultation with the Secretary, ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. Each Federal agency shall review its action at the earliest possible time to determine whether it may affect listed species or critical habitat. If a determination is made that the action may affect listed species or critical habitat, formal consultation is required (50 CFR 402.14(a)), unless the Service concurs in writing that the action is not likely to adversely affect listed species or critical habitat. At the end of a formal consultation, the Service issues a biological opinion, containing its determination of whether the Federal action is likely to result in jeopardy or adverse modification.

In contrast, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of critical habitat proposed to be designated for such species. Although the conference procedures are required only when an action is likely to result in jeopardy or adverse modification, action agencies may voluntarily confer with the Service on actions that may affect species proposed for listing or critical habitat proposed to be designated. In the event that the subject species is listed, or the relevant critical habitat is designated, a conference opinion may be adopted as a biological opinion and serve as compliance with section 7(a)(2) of the Act.

Examples of discretionary actions for the bushy whitlow-wort that may be subject to conference and consultation procedures under section 7 are land management or other landscape-altering activities on Federal lands administered by the Texas Department of Transportation (TxDOT), including maintenance of the ROW of Highway FM 649 or other highway maintenance activities, within the vicinity of the known bushy whitlow-wort populations, as well as actions on State, Tribal, local, or private lands within the vicinity of the known bushy whitlow-wort populations 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. Federal agencies should coordinate with the local Service Field Office (see FOR FURTHER INFORMATION CONTACT ) with any specific questions on section 7 consultation and conference requirements.

Critical habitat is defined in section 3 of the Act as:

(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features

(a) Essential to the conservation of the species, and

(b) Which may require special management considerations or protection; and

(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as an area that may generally be delineated around species' occurrences, as determined by the Secretary ( i.e., range). Such areas may include those areas used throughout all or part of the species' life cycle, even if not used on a regular basis ( e.g., migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals).

Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

Critical habitat receives protection under section 7 of the Act through the requirement that each Federal action agency 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. Rather, designation requires that, where a landowner requests Federal agency funding or authorization for an action that may affect an area designated as critical habitat, the Federal agency consult with the Service under section 7(a)(2) of the Act. If the action may affect the listed species itself (such as for occupied critical habitat), the Federal agency would have already been required to consult with the Service even absent the designation because of the requirement to ensure that the action is not likely to jeopardize the continued existence of the species. Even if the Service were to conclude after consultation that the proposed activity is likely to 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 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.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information from the SSA report and information developed during the listing process for the species. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species; the recovery plan for the species; articles in peer-reviewed journals; conservation plans developed by States and counties; scientific status surveys and studies; biological assessments; other unpublished materials; or experts' opinions or personal knowledge.

Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act; (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species; and (3) the prohibitions found in section 9 of the Act. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of 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.

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 which may require special management considerations or protection. The regulations at 50 CFR 424.02 define “physical or biological features essential to the conservation of the species” as the features that occur in specific areas and that are essential to support the life-history needs of the species, including, but not limited to, water characteristics, soil type, geological features, sites, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity. For example, physical features essential to the conservation of the species might include gravel of a particular size required for spawning, 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, symbiotic fungi, or absence of 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 two documented populations of bushy whitlow-wort occupy exposed slopes of calcareous rock and/or indurated caliche along the boundary of the Goliad geological formation and the Catahoula and Frio Clay (undivided) geological formation (Turner 1983, p. 5; Damude and Poole 1990, pp. 9, 10, 12; Poole et al. 2007, p. 333).

Soils in the vicinity of the known bushy whitlow-wort populations are classified as Zapata soils (Soil Conservation Service 1974, p. 17; Natural Resources Conservation Service (NRCS) 2020, unpaginated). The representative Zapata soil profile consists of grayish-brown fine sandy loam at and near the surface (0 to 2 in (0 to 5 cm) deep); brown sandy clay loam below that (2 to 8 in (5 to 20 cm) deep); and indurated, laminar, pinkish-white caliche below that (more than 8 in (20 cm) deep). The occupied sites are also very near or overlay areas of Cuevitas-Randado Association soils. A representative profile has brown and reddish-brown fine sandy loam near the surface (from 1 to 9 in (2.5 to 23 cm) deep), and indurated, laminar, white caliche below that (more than 9 in (23 cm) deep). Clearly, Zapata and Cuevitas-Randado Association soils are very similar. Although the immediate area of occupied sites has very little soil, such areas of exposed rock are included within these soil map unit polygons.

The plant community associated with bushy whitlow-wort is an open shrubland with the tallest plants reaching 4 to 6 ft (1.2 to 1.8 m) in height (Damude and Poole 1990, pp. 12, 13). Within this shrubland community, bushy whitlow-wort occurs primarily in nearly barren openings on exposed limestone, caliche, or calcareous tuff, where the nearly white rocks reflect and intensify sunlight.

Nonnative, invasive grass species displace native plants by competing for water, nutrients, and light, and their dense root systems prevent germination of native plant seeds (Texas Invasives 2019, unpaginated). Buffelgrass is widely planted in south Texas for livestock forage and frequently displaces native grasses and herbaceous plants (Best 2009, pp. 310-311).

We derive the specific physical or biological features essential to the conservation of bushy whitlow-wort from studies of the species' habitat, ecology, and life history as described below. Additional information can be found in the SSA report (USFWS 2023, entire; available on https://www.regulations.gov under Docket No. FWS-R2-ES-2023-0102). We have determined that the following physical or biological features are essential to the conservation of bushy whitlow-wort:

(1) Exposed outcrops of calcified tuff,

(2) Undisturbed or minimally disturbed soil horizons, and

(3) Openings within shrubland communities that do not contain or have low levels of buffelgrass.

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.

The features essential to the conservation of this species may require special management considerations or protection to reduce the following threats: Nonnative, invasive grass; ROW construction and maintenance from energy development; and road and utility construction. Habitats have been moderately disturbed in the past by gravel roads, petroleum infrastructure, and a highway ROW, but they are otherwise intact. Management activities that could ameliorate these threats include, but are not limited to: Nonnative, invasive grass control; protection from activities that disturb the soil; and propagation and reintroduction of plants in restorable areas. These management activities would protect the physical or biological features for the species by reducing soil disturbance, limiting the impacts of competition with buffelgrass, and potentially increasing population sizes.

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 currently proposing to designate any areas outside the geographical area occupied by the species because we have not identified any unoccupied areas that meet the Act's definition of critical habitat. Bushy whitlow-wort needs additional populations to reduce the likelihood of extinction, but there are no public lands in the area and we have limited access to privately owned lands and little information regarding lands that would be good candidates for introductions in the species' range. Therefore, we are not able to identify additional locations that contain at least one of the physical or biological features essential to the conservation of the species and that may have a reasonable certainty of contributing to conservation at this time.

In summary, for areas within the geographical area occupied by the species at the time of listing, we delineated critical habitat unit boundaries using the E.O. boundaries established by the TXNDD; however, we did not include areas of disturbed soils (the ROW of FM 649, roadbeds of unpaved ranch roads, and cleared pipeline ROWs) that no longer contain the physical and biological features and that, due to repeated disturbance, are unlikely to be restored in the future.

When determining proposed critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical or biological features necessary for bushy whitlow-wort. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Therefore, if the critical habitat is finalized as proposed, a Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical or biological features in the adjacent critical habitat.

We propose to designate as critical habitat lands that we have determined are occupied at the time of listing ( i.e., currently occupied) and that contain one or more of the physical or biological features that are essential to support the life-history processes of the species.

Units are proposed for designation based on one or more of the physical or biological features being present to support bushy whitlow-wort's life-history processes. Both proposed units contain all of the identified physical or biological features and support multiple life-history processes.

The proposed critical habitat designation is defined by the map, as modified by any accompanying regulatory text, presented at the end of this document under Proposed Regulation Promulgation. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make the coordinates or plot points or both on which each map is based available to the public on https://www.regulations.gov at Docket No. FWS-R2-ES-2023-0102.

We are proposing two units as critical habitat for bushy whitlow-wort. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for bushy whitlow-wort. The two areas we propose as critical habitat are TXNDD EOs in Jim Hogg County. The table below shows the proposed critical habitat units and the approximate area of each unit. All units are occupied.

We present brief descriptions of the two proposed units, and reasons why they meet the definition of critical habitat for bushy whitlow-wort, below.

Unit 1 consists of 35.38 ac (14.32 ha) in a geographic cluster of three polygons on private land within the boundaries of E.O. 1 in northwest Jim Hogg County. In this proposed unit, we do not include the FM 649 ROW or unvegetated roadbeds that are frequently driven on or are maintained by road grading, as these areas no longer contain the essential physical and biological features and they are unlikely to be restored in the future. Unit 1 was delineated through observation of recent orthographically corrected aerial photographs (USDA-FPAC-BC-APFO Aerial Photography Field Office 2018, unpaginated). The unit is occupied by the species and contains all of the physical or biological features essential to the conservation of bushy whitlow-wort. Areas adjacent to this unit contain a public ROW that is affected by invasive, nonnative buffelgrass. Therefore, special management may be required to reduce invasion of nonnative species.

Unit 2 consists of 6.57 ac (2.66 ha) in a geographic cluster of 10 polygons on private land within the boundaries of E.O. 2 in northwest Jim Hogg County. In this proposed unit, we do not include unvegetated roadbeds that are frequently driven on or are maintained by road grading, as these areas no longer contain the essential physical and biological features and they are unlikely to be restored in the future. Unit 2 was delineated through observation of recent orthographically corrected aerial photographs (USDA-FPAC-BC-APFO Aerial Photography Field Office 2018, unpaginated). The unit is occupied by the species and contains all of the physical or biological features essential to the conservation of bushy whitlow-wort. This unit has been moderately disturbed in the past by gravel roads and petroleum infrastructure. Therefore, special management may be required to reduce invasion of nonnative species.

Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.

We published a final rule revising the definition of destruction or adverse modification on August 27, 2019 (84 FR 44976). Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species.

Compliance with the requirements of section 7(a)(2) of the Act 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 formal consultation that:

(1) Can be implemented in a manner consistent with the intended purpose of the action,

(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,

(3) Are economically and technologically feasible, and

(4) Would, in the Service Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.

Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.

Regulations at 50 CFR 402.16 set forth requirements for Federal agencies to reinitiate consultation if any of the following four conditions occur: (1) the amount or extent of taking specified in the incidental take statement is exceeded; (2) new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered; (3) the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion or written concurrence; or (4) 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.

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 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 we 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, actions that would degrade or destroy native plant communities. Such activities could include, but are not limited to, the construction of: roadways; wind, oil, and gas production sites; powerlines; pipelines; or other infrastructure developments. These activities could disturb the soil or could introduce or increase buffelgrass and other invasive grasses in the vicinity of bushy whitlow-wort individuals.

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 Improvement Act of 1997 (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 proposed critical habitat designation.

Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from designated critical habitat based on economic impacts, impacts on national security, or any other relevant impacts. Exclusion decisions are governed by the regulations at 50 CFR 424.19 and the Policy Regarding Implementation of Section 4(b)(2) of the Endangered Species Act (hereafter, the “2016 Policy”; 81 FR 7226, February 11, 2016), both of which were developed jointly with the National Marine Fisheries Service (NMFS). We also refer to a 2008 Department of the Interior Solicitor's opinion entitled, “The Secretary's Authority to Exclude Areas from a Critical Habitat Designation under Section 4(b)(2) of the Endangered Species Act” (M-37016).

In considering whether to exclude a particular area from the designation, we identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and evaluate whether the benefits of exclusion outweigh the benefits of inclusion. If the analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, the Secretary may exercise discretion to exclude the area only if such exclusion would not result in the extinction of the species. In 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. In our final rules, we explain any decision to exclude areas, as well as all decisions not to exclude, to make clear the rational basis for our decision. We describe below the process that we use for taking into consideration each category of impacts and any initial analyses of the relevant impacts.

Section 4(b)(2) of the Act and its implementing regulations require that we consider the economic impact that may result from a designation of critical habitat. To assess the probable economic impacts of a designation, we must first evaluate specific land uses or activities and projects that may occur in the area of the critical habitat. We then must evaluate the impacts that a specific critical habitat designation may have on restricting or modifying specific land uses or activities for the benefit of the species and its habitat within the areas proposed. We then identify which conservation efforts may be the result of the species being listed under the Act versus those attributed solely to the designation of critical habitat for this particular species. The probable economic impact of a proposed critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.”

The “without critical habitat” scenario represents the baseline for the analysis, which includes the existing regulatory and socio-economic burden imposed on landowners, land managers, or other resource users potentially affected by the designation of critical habitat ( e.g., under the Federal listing as well as other Federal, State, and local regulations). Therefore, the baseline represents the costs of all efforts attributable to the listing of the species under the Act ( i.e., conservation of the species and its habitat incurred regardless of whether critical habitat is designated). The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts would not be expected without the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat, above and beyond the baseline costs. These are the costs we use when evaluating the benefits of inclusion and exclusion of particular areas from the final designation of critical habitat should we choose to conduct a discretionary 4(b)(2) exclusion analysis.

Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to assess the costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consistent with the E.O. regulatory analysis requirements, our effects analysis under the Act may take into consideration impacts to both directly and indirectly affected entities, where practicable and reasonable. If sufficient data are available, we assess to the extent practicable the probable impacts to both directly and indirectly affected entities. Section 3(f) of E.O. 12866, as amended by E.O. 14094, identifies four criteria when a regulation is considered a “significant regulatory action,” and requires additional analysis, review, and approval if met. The criterion relevant here is whether the designation of critical habitat may have an economic effect of $200 million or more in any given year (section 3(f)(1)). Therefore, our consideration of economic impacts uses a screening analysis to assess whether a designation of critical habitat for bushy whitlow-wort is likely to exceed the economically significant threshold.

For this particular designation, we developed an incremental effects memorandum (IEM) considering the probable incremental economic impacts that may result from this proposed designation of critical habitat. The information contained in our IEM was then used to develop a screening analysis of the probable effects of the designation of critical habitat for the bushy whitlow-wort (Industrial Economics, Inc. (IEc) 2023, entire.). We began by conducting a screening analysis of the proposed designation of critical habitat in order to focus our analysis on the key factors that are likely to result in incremental economic impacts. The purpose of the screening analysis is to filter out particular geographical areas of critical habitat that are already subject to such protections and are, therefore, unlikely to incur incremental economic impacts. In particular, the screening analysis considers baseline costs ( i.e., absent critical habitat designation) and includes any probable incremental economic impacts where land and water use may already be subject to conservation plans, land management plans, best management practices, or regulations that protect the habitat area as a result of the Federal listing status of the species.

Ultimately, the screening analysis allows us to focus our analysis on evaluating the specific areas or sectors that may incur probable incremental economic impacts as a result of the designation. The presence of the listed species in occupied areas of critical habitat means that any destruction or adverse modification of those areas is also likely to jeopardize the continued existence of the species. Therefore, designating occupied areas as critical habitat typically causes little if any incremental impacts above and beyond the impacts of listing the species. As a result, we generally focus the screening analysis on areas of unoccupied critical habitat (unoccupied units or unoccupied areas within occupied units). Overall, the screening analysis assesses whether designation of critical habitat is likely to result in any additional management or conservation efforts that may incur incremental economic impacts. This screening analysis combined with the information contained in our IEM constitute what we consider to be our draft economic analysis (DEA) of the proposed critical habitat designation for the bushy whitlow-wort; our DEA is summarized in the narrative below.

As part of our screening analysis, we considered the types of economic activities that are likely to occur within the areas likely affected by the critical habitat designation. In our evaluation of the probable incremental economic impacts that may result from the proposed designation of critical habitat for the bushy whitlow-wort, first we identified, in the IEM dated August 2, 2022, probable incremental economic impacts associated with the following categories of activities: (1) Highway construction or maintenance; and (2) wind energy development. We considered each industry or category individually. Additionally, we considered whether the activities have any Federal involvement. Critical habitat designation generally will not affect activities that do not have any Federal involvement; under the Act, designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. If we list the species, in areas where the bushy whitlow-wort is present, Federal agencies would be required to consult with the Service under section 7 of the Act on activities they authorize, fund, or carry out that may affect the species. If we list the species, and at that time also finalize this proposed critical habitat designation, Federal agencies would be required to consider the effects of their actions on the designated habitat, and if the Federal action may affect critical habitat, our consultations 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 bushy whitlow-wort's critical habitat. Because the designation of critical habitat for bushy whitlow-wort is being proposed concurrently with the listing, it has been our experience that it is more difficult to discern which conservation efforts are attributable to the species being listed and those which would 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 occupied 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 proposed designation of critical habitat.

The proposed critical habitat designation for the bushy whitlow-wort includes two units totaling 41.96 ac (16.98 ha). Both units are considered occupied by the bushy whitlow-wort and contain the physical and biological features essential to the conservation of the species. We are not proposing to designate any units of unoccupied habitat. Both units of the proposed designation are entirely on private land. In these areas, any actions that may affect the species or its habitat would also affect designated critical habitat, and it is unlikely that any additional conservation efforts would be recommended to address the adverse modification standard over and above those recommended as necessary to avoid jeopardizing the continued existence of the bushy whitlow-wort. Therefore, the potential effects of the critical habitat designation are expected to be limited to administrative costs.

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. Total incremental costs of critical habitat designation for the bushy whitlow-wort are anticipated to be less than $1,900 per year for the next 10 years. In total, fewer than one informal consultation and fewer than one technical assistance effort are anticipated to occur annually across both proposed critical habitat units. The designation of critical habitat is not expected to trigger additional requirements under State or local regulations, and incremental perception-related impacts appear unlikely. Thus, the annual administrative burden is unlikely to reach $200 million.

We are soliciting data and comments from the public on the DEA discussed above. During the development of a final designation, we will consider the information presented in the DEA and any additional information on economic impacts we receive during the public comment period to determine whether any specific areas should be excluded from the final critical habitat designation under the authority of section 4(b)(2) of the Act, our implementing regulations at 50 CFR 424.19, and the 2016 Policy. We may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species.

Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or areas that pose potential national-security concerns ( e.g., a DoD installation that is in the process of revising its INRMP for a newly listed species or a species previously not covered). If a particular area is not covered under the Act's section 4(a)(3)(B)(i), then national-security or homeland-security concerns are not a factor in the process of determining what areas meet the definition of “critical habitat.” However, the Service must still consider impacts on national security, including homeland security, on those lands or areas not covered by section 4(a)(3)(B)(i) because section 4(b)(2) requires the Service to consider those impacts whenever it designates critical habitat. Accordingly, if DoD, Department of Homeland Security (DHS), or another Federal agency has requested exclusion based on an assertion of national-security or homeland-security concerns, or we have otherwise identified national-security or homeland-security impacts from designating particular areas as critical habitat, we generally have reason to consider excluding those areas.

However, we cannot automatically exclude requested areas. When DoD, DHS, or another Federal agency requests exclusion from critical habitat on the basis of national-security or homeland-security impacts, we must conduct an exclusion analysis if the Federal requester provides information, including a reasonably specific justification of an incremental impact on national security that would result from the designation of that specific area as critical habitat. That justification could include demonstration of probable impacts, such as impacts to ongoing border-security patrols and surveillance activities, or a delay in training or facility construction, as a result of compliance with section 7(a)(2) of the Act. If the agency requesting the exclusion does not provide us with a reasonably specific justification, we will contact the agency to recommend that it provide a specific justification or clarification of its concerns relative to the probable incremental impact that could result from the designation. If we conduct an exclusion analysis because the agency provides a reasonably specific justification or because we decide to exercise the discretion to conduct an exclusion analysis, we will defer to the expert judgment of DoD, DHS, or another Federal agency as to: (1) Whether activities on its lands or waters, or its activities on other lands or waters, have national-security or homeland-security implications; (2) the importance of those implications; and (3) the degree to which the cited implications would be adversely affected in the absence of an exclusion. In that circumstance, in conducting a discretionary section 4(b)(2) exclusion analysis, we will give great weight to national-security and homeland-security concerns in analyzing the benefits of exclusion.

In preparing this proposal, we have determined that the lands within the proposed designation of critical habitat for bushy whitlow-wort are not owned or managed by the DoD or DHS, and, therefore, we anticipate no impact on national security or homeland security.

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. 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 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, social, or other impacts that might occur because of the designation.

In preparing this proposal, we have determined that no HCPs or other management plans for bushy whitlow-wort currently exist, and the proposed designation does not include any Tribal lands or trust resources or any lands for which designation would have any economic or national-security impacts. Therefore, we anticipate no impact on Tribal lands, partnerships, or HCPs from this proposed critical habitat designation and thus, as described above, we are not considering excluding any particular areas on the basis of the presence of conservation agreements or impacts to trust resources.

However, if through the public comment period we receive information that we determine indicates that there are potential economic, national security, or other relevant impacts from designating particular areas as critical habitat, then as part of developing the final designation of critical habitat, we will evaluate that information and may conduct a discretionary exclusion analysis to determine whether to exclude those areas under the authority of section 4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19. If we receive a request for exclusion of a particular area and after evaluation of supporting information we do not exclude, we will fully describe our decision in the final rule for this action.

We are required by E.O.s 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(1) Be logically organized;

(2) Use the active voice to address readers directly;

(3) Use clear language rather than jargon;

(4) Be divided into short sections and sentences; and

(5) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES . To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

Executive Order (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.

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 proposed rule in a manner consistent with these requirements.

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 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 would be directly regulated if we adopt the proposed 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 would be directly regulated by this rulemaking, the Service certifies that, if made final as proposed, the proposed critical habitat designation will not have a significant economic impact on a substantial number of small entities.

In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. For the above reasons and based on currently available information, we certify that, if made final, the proposed critical habitat designation would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.

Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare statements of energy effects to the extent permitted by law when undertaking actions identified as significant energy actions (66 FR 28355; May 22, 2001). E.O. 13211 defines a “significant energy action” as an action that (i) is a significant regulatory action under E.O. 12866 or any successor order (including, most recently, E.O. 14094 (88 FR 21879; April 11, 2023)); and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy. This rule is not a significant regulatory action under E.O. 12866 or E.O. 14094. Therefore, this action is not a significant energy action, and there is no requirement to prepare a statement of energy effects for this action.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ), we make the following finding:

(1) This proposed rule would not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or Tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or Tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and Tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or Tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”

The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions are not likely to 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 rule would significantly or uniquely affect small governments because it will not produce a Federal mandate of $100 million or greater (adjusted annually for inflation) 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 and, as such, a Small Government Agency Plan is not required.

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 bushy whitlow-wort 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 proposed designation of critical habitat for bushy whitlow-wort, and it concludes that, if adopted, this designation of critical habitat does not pose significant takings implications for lands within or affected by the designation.

In accordance with E.O. 13132 (Federalism), this proposed rule does not have significant Federalism effects. A federalism summary impact statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of this proposed critical habitat designation with, appropriate State resource agencies. 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 proposed rule does not have substantial direct effects either on the States, or on the relationship between the Federal government and the States, or on the distribution of powers and responsibilities among the various levels of government. The proposed 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 would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.

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

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

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. In a line of cases starting with Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), the courts have upheld this position.

In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), E.O. 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 federally recognized 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 proposed critical habitat designation for the bushy whitlow-wort, so no Tribal lands would be affected by the proposed designation.

A complete list of references cited in this rulemaking is available on the internet at https://www.regulations.gov and upon request from the Texas Coastal Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this proposed rule are the staff members of the Fish and Wildlife Service's Species Assessment Team and the Texas Coastal Ecological Services Field Office.

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

Executive Summary

Why we need to publish a rule. Under the Act, a species warrants delisting if it no longer 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 an endangered species within the foreseeable future throughout all or a significant portion of its range). The North Park phacelia is listed as endangered, and we are proposing to delist it because we have determined it does not meet the Act's definition of an endangered or threatened species. Delisting a species can be completed only by issuing a rule through the Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq. ).

What this document does. This action proposes to remove North Park phacelia from the List of Endangered and Threatened Plants ( i.e., “delist” the species) based on its recovery.

The basis for our action. Under the Act, we may determine that a species is an endangered species or a threatened species because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. The determination to delist a species must be based on an analysis of the same factors.

Under the Act, we must review the status of all listed species at least once every 5 years. We must delist a species if we determine, on the basis of the best available scientific and commercial data, that the species is neither a threatened species nor an endangered species. Our regulations at 50 CFR 424.11 identify three reasons why we might determine a species should be delisted: (1) The species is extinct, (2) the species does not meet the definition of an endangered species or a threatened species, or (3) the listed entity does not meet the definition of a species. Here, we have determined that, based on an analysis of the five listing factors, the North Park phacelia has recovered and no longer meets the definition of an endangered species or a threatened species; therefore, we are proposing to delist it.

We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American Tribes, the scientific community, industry, or any other interested parties concerning this proposed rule.

We particularly seek comments concerning:

(1) Reasons we should or should not remove the North Park phacelia from the List of Endangered and Threatened Plants.

(2) Relevant data concerning any threats (or lack thereof) to the North Park phacelia, particularly any data on the possible effects of climate change as it relates to habitat, as well as the extent of State protection and management that would be provided to this plant as a delisted species.

(3) Current or planned activities within the geographic range of the North Park phacelia that may have either a negative or positive impact on the species.

(4) Considerations for post-delisting monitoring, including monitoring protocols and length of time monitoring is needed, as well as triggers for reevaluation.

Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.

Please note that submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, do not provide information necessary to support a determination. Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered species or a threatened species must be made solely on the basis of the best scientific and commercial data available.

You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES . We request that you send comments only by the methods described in ADDRESSES .

If you submit information via https://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on https://www.regulations.gov.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on https://www.regulations.gov.

Our final determinations may differ from this proposal because we will consider all comments we receive during the comment period as well as any information that may become available after this proposal. For example, based on the new information we receive (and any comments on that new information), we may conclude that the species should remain listed as endangered, or we may conclude that the species should be reclassified from endangered to threatened. We will clearly explain our rationale and the basis for our final decision, including why we made changes, if any, that differ from this proposal.

Section 4(b)(5) of the Act provides for a public hearing on this proposal, if requested. Requests must be received by the date specified in DATES . Such requests must be sent to the address shown in FOR FURTHER INFORMATION CONTACT . We will schedule a public hearing on this proposal, if requested, and announce the date, time, and place of the hearing, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing. We may hold the public hearing in person or virtually via webinar. We will announce any public hearing on our website, in addition to the Federal Register . The use of virtual public hearings is consistent with our regulation at 50 CFR 424.16(c)(3).

A species status assessment (SSA) team prepared an SSA report for the North Park phacelia to inform the 2021 5-year review and updated it in 2023. The SSA team was composed of Service biologists who consulted with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species.

In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing and recovery actions under the Act, we solicited independent scientific review of the information contained in the North Park phacelia SSA report. We sent the SSA report to three independent and appropriate peer reviewers and received three responses. Results of this structured peer review process can be found at https://www.regulations.gov at Docket No. FWS-R6-ES-2023-0114. We incorporated the results of these reviews, as appropriate, into the final SSA report, which is the foundation for this proposed rule.

As discussed in Peer Review 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 information contained in the SSA report. The three peer reviewers provided additional information, clarifications, and recommendations pertaining to changes to our threat evaluation for residential development, energy development, livestock use, and agriculture; changes to our current and future condition metrics; changes to our scoring of future condition; and an evaluation of the pollinators of North Park phacelia. We summarize the peer reviewers' main comments below and have either incorporated these points into the SSA report or address them below.

(1) Comment: One reviewer asked if there is a potential habitat model for North Park phacelia and whether there is unsurveyed, potential habitat for the species. The reviewer asked how far north the Niobrara formation extends and if the species could be found in Wyoming.

Our response: We developed a potential habitat model for North Park phacelia in 2022 after the recent genetic study (Naibauer and McGlaughlin 2022, entire) confirmed there are four additional populations of North Park phacelia in Larimer and Grand Counties, Colorado. The potential habitat model included the three soil types (Coalmont, Niobrara, and Troublesome Creek formations) on which the species occurs across its range. Based on this model, there is unsurveyed potential habitat for North Park phacelia within its range, which is not surprising because of the recent expansion of the species' known range (see Background, below). The Niobrara formation does extend north into Wyoming, and habitat assessments would have to be performed to determine whether they in fact contain suitable habitat for North Park phacelia. If there is suitable habitat in Wyoming, surveys would have to be performed to assess occupancy. Our proposal to delist is not dependent on populations occurring in Wyoming.

(2) Comment: One reviewer asked whether we checked the SEINet data portal and NatureServe Encyclopedia of Life, both available online, for North Park phacelia location information and, if so, recommended that we cite them as sources of information.

Our response: We reviewed both websites, but they did not contain any new or additional location information for North Park phacelia beyond what we have on file. Therefore, we did not cite them as sources of information.

(3) Comment: One reviewer recommended that we include the Colorado Natural Heritage Program (CNHP) and NatureServe global (G2) and State (S2) ranks for North Park phacelia in the SSA report.

Our response: We declined to include the CNHP and NatureServe global and State ranks provided by the reviewer in the SSA report because they may be inaccurate and out of date based of the results of the recent genetic study (Naibauer and McGlaughlin 2022, entire) that confirmed the species has four additional populations. The data sources identified by the peer reviewer are also not critical to our evaluation of North Park phacelia's viability.

(4) Comment: One reviewer recommended that we provide the years associated with the range of total plant abundance (908 to 17,750 plants) reported for the North Park basin (Jackson County, Colorado) in chapter 2 of the SSA report. The reviewer asked whether this range reflected a trend, pattern, or simply the result of rosettes (young, non-flowering plants) not being counted in some surveys.

Our response: We removed the information from the SSA report pertaining to the reviewer's comment and instead summarized the range of plant abundance for each population in a table (Service 2023, table 3, p. 11). The recommended information, years and range of plant abundance reported for the North Park basin, are summarized in the species' 2012 5-year status review (Service 2012, table 1, pp. 7-8). In 2012, we noted that some surveys counted rosettes while others did not, and the available data does not allow us to compare years or identify a trend (Service 2012, p. 8). The best available trend information is from the Bureau of Land Management (BLM) plant frequency monitoring results, which we summarize below and in the SSA report (see Background, below; Service 2023, pp. 25-27).

(5) Comment: One reviewer recommended that we add more information to the key findings section in chapter 2 to mention if there are years when the species has low numbers or if there are only areas with low numbers because of the variability of local rain events. The reviewer asked if there were more key findings and citations to add to make that section more robust.

Our response: The key findings section is a summary of the individual, population, and species needs discussed in chapter 2. We added more key findings to this section of the SSA report to partially address the comment. However, we did not include citations because this section is a summary of information presented earlier in the chapter with citations. We also did not add information regarding years and areas with low numbers in chapter 2. Rather, we included information regarding the variability of local weather patterns, and discussed how the species responds to climate conditions in chapter 3 (Service 2023, pp. 23, 25-27).

(6) Comment: One reviewer stated that the SSA report does not reach a clear conclusion about the current condition of North Park phacelia relative to each of the identified threats. The reviewer recommended that we clearly state what the threats are and mentioned three reports (The Colorado Rare Plant Guide (CNHP 2015a, entire), CNHP element occurrence records (CNHP 2020 entire), and North Park Phacelia Conservation Action Plan 2011 Update (Panjabi and Neely 2011, entire)) that document threats to the species.

Our response: We identified threats to North Park phacelia and evaluated their individual and potential cumulative effect at the population level in our assessment of current condition in chapter 3 of the SSA report and below (Service 2023, pp. 19-35; Summary of Biological Status and Threats). The draft SSA report includes information on threats from two of the reports the reviewer mentioned, the Colorado Rare Plant Guide and CNHP element occurrence records. We reviewed the third report, the North Park Phacelia Conservation Action Plan 2011 Update, which evaluated the viability of North Park phacelia using similar metrics as our assessment. While we cited all three reports in the SSA report to address the comment, we primarily relied on the information summarized in the CNHP element occurrence records for our threats assessment, because this report provides threat documentation over a longer timeframe and with more recent information than the other two reports.

(7) Comment: One reviewer disagreed with our assertion in the draft SSA report that threats are either absent or less severe now than described at the time of listing based on data provided by CNHP. The reviewer stated that CNHP occurrence records identify livestock trampling as a threat and document plants trampled by livestock and that it is not known if those plants survived.

Our response: The reviewer is referring to the following sentences in the draft SSA: “In the final rule to list Phacelia formosula as an endangered species under the Act (September 1, 1982; 47 FR 38540), we identified motorcycle (also known as, off road vehicle or ORV) use, cattle trampling, the potential development of resources (coal, oil, and natural gas), and the inadequacy of existing regulatory mechanisms as primary threats to the species. Data provided by CNHP indicate an absence of these threats within P. formosula populations, or that these threats are less severe now than described at the time of listing.”

The last sentence pertains to all threats identified at the time of listing, and we stand by our assertion that livestock grazing is a threat that is less severe now than when we listed North Park phacelia in 1982 (see Conservation Efforts and Regulatory Mechanisms, below). To address this comment, we amended the sentence to clarify that CNHP data indicate either an absence of threats or that threats are less severe now than described at the time of listing in the SSA report. We summarized the CNHP data regarding livestock grazing in more detail later in chapter 3 (Service 2023, pp. 19-22). While some plants have been trampled by livestock, this stressor affects individuals and not populations of North Park phacelia based on the best available information (see Summary of Biological Status and Threats, below).

(8) Comment: One reviewer stated that the overall threat of oil and gas development is not thoroughly assessed in the draft SSA report. The reviewer commented that a geospatial analysis alone does not seem adequate to determine disturbance and dust associated with oil and gas wells that could be obtained by an on-the-ground evaluation.

Our response: We added more background information regarding the effects of dust and invasive plants to North Park phacelia, the potential for future development, and regulatory mechanisms on Federal lands in the SSA report (Service 2023, pp. 19-24), and we summarize the oil and gas stressor in the proposed rule (see Stressors, below). However, we did not incorporate an on-the-ground evaluation of disturbance and dust or change our oil and gas development evaluation. Two oil and gas wells within 656 feet (ft) (200 meters (m)) of North Park phacelia populations were installed more than 40 years ago. These are no longer active (their well status is plugged and abandoned) and are causing no obvious disturbance based on the aerial imagery (Service 2023, pp. 22-23). Furthermore, while potential for oil and gas is high in Jackson County, Colorado, there are regulatory mechanisms on Federal lands for surveys and avoidance buffers as well as No Surface Occupancy (NSO) stipulations to protect North Park phacelia plants from mortality, disturbance, and dust (BLM 2016, p. 15; Service 2023, pp. 23-24). We expect these regulatory mechanisms to continue for the duration of the post delisting monitoring plan (we propose a 10-year monitoring period) after which the regulatory mechanisms for BLM sensitive species would apply to provide the same level of protection given to Federal Candidate species (BLM 2015b, pp. 3-76—3-77). The regulatory mechanisms afforded to BLM sensitive species should adequately protect the resiliency of North Park phacelia populations from stressors (OHV use, energy development, and livestock grazing) on BLM lands.

Aerial imagery has also been used to evaluate vegetation recovery on well pads in published reports (Nauman et al. 2017, entire), and our 656-ft (200-m) buffer is adequate to evaluate potential dust dispersal from well pads and other disturbed areas to North Park phacelia plants (Service 2023, pp. 19-21). Well pads serve as a potential source of fugitive dust generation over approximately two decades (up to 17 years) following installation (Nauman et al. 2017, pp. 9, 11). The two well pads may have been sources of fugitive dust in the past but are not likely current sources given their installation dates, their plugged and abandoned status, and the lack of obvious surface disturbance in aerial imagery. While an on-the-ground evaluation may be helpful to validate the aerial imagery, it would not provide additional quantitative information on potential dust effects to North Park phacelia plants unless an in-depth and lengthy evaluation of fugitive dust generation by the oil and gas wells compared to background levels is performed. An evaluation such as this would also likely only confirm our current available information on fugitive dust.

(9) Comment: One reviewer asked if agriculture could impact plants or pollinators through pesticide or herbicide use. A second reviewer felt that we should have included agricultural areas in our disturbance calculation for the ecological settings metric because agriculture results in habitat fragmentation, reduced pollinator habitat, and, if tilled, dust and pollution. The second reviewer recommended that we evaluate agricultural disturbance in appendix A.

Our response: We considered the reviewers' comments and discussed them with partners and experts on the species (Service 2022, p. 3). The primary agricultural practices near North Park phacelia populations are haying and grazing that generally use fewer pesticides than croplands and are not tilled. Haying and grazing practices likely do not result in direct impacts to North Park phacelia and one partner, CNHP, did not evaluate this stressor in their review of the species. North Park phacelia requires pollinators for maximum reproduction even though it can produce seeds without pollinators (Warren 1990, pp. 16-17; Service 2023, pp. 13-18). While we do not know the important pollinators of North Park phacelia, native bees in the following genera are frequent floral visitors: plasterer bees ( Colletes spp. ), small carpenter bees ( Ceratina spp. ), sweat bees ( Dialictus spp. ), and potter bees ( Anthidium spp. ) (Warren 1990, pp. 17-18). We have no information to indicate that haying and grazing practices are negatively impacting pollinators of North Park phacelia. Therefore, we declined to include an evaluation of agricultural disturbance in appendix A of the SSA report.

(10) Comment: One reviewer asked if factors such as dust and livestock trampling were missed in our evaluation and calculation of the ecological setting metric used to evaluate current condition in chapter 3.

Our response: We evaluated the potential impacts of disturbance and habitat loss, including the potential effects of dust, to North Park phacelia in our evaluation of the ecological setting metric and thresholds (Service 2023, pp. 27-28). We used the same 656-ft (200-m) evaluation buffer for the ecological setting metric as we did for the oil and gas evaluation discussed in comment number 8, above, which is adequate to evaluate potential dust dispersal from disturbance to North Park phacelia plants (Service 2023, pp. 19-21). We did not include livestock trampling as part of our calculation of this metric because the aerial imagery is too coarse to detect individual livestock tracks. Additionally, we are aware of no areas that have concentrated or extensive livestock use that would result in the loss of suitable or occupied habitat for North Park phacelia consistent with the disturbance types (roads, oil and gas wells, and developed areas) we included in our calculation of this metric. The best available information indicates that livestock grazing results in small, localized effects to individual plants and does not result in population-level effects to North Park phacelia (see Stressors, below). We also did not include agricultural areas in our calculation of this metric as discussed in comment number 9, above.

(11) Comment: One reviewer recommended that the SSA report state that more research is needed to better understand North Park phacelia and threats to its long-term survival and that we include research suggestions. The reviewer also expressed concern that off-highway vehicle (OHV) use has not been assessed recently in eight populations.

Our response: While we agree that more monitoring and research would result in a better understanding of the species and the magnitude and extent of possible impacts of OHV use and other stressors, it is beyond the scope of an SSA report to recommend research needs. Instead, we summarized the information available for North Park phacelia and the uncertainties regarding the species. While monitoring of some North Park phacelia populations may be infrequent, OHV use is a concern only in the North Park phacelia Airport population, not the other 11 populations. OHV use in the Airport population has been documented since the species was listed and we evaluate OHV use, below, see Stressors. We requested recent data for North Park phacelia to inform our 2021 5-year status review; however, we did not receive new information on OHV use and there is no requirement for additional research, including collecting data on OHV use and other threats.

We review the best scientific and commercial information available when conducting an SSA and making a status determination under the Act. In considering what factors might constitute a threat, we look beyond the mere exposure of the individuals of a species to the factor to determine whether the exposure causes actual impacts to the species. The mere identification of factors that could impact a species negatively is not sufficient to compel a finding that listing (or maintaining a currently listed species) on the Federal lists of endangered or threatened wildlife and plants is appropriate. In determining whether a species meets the definition of a threatened or endangered species, we must evaluate all identified threats by considering the species' expected response and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level, as well as the cumulative effect of the threats. Based on the best available information, we recommended that North Park phacelia no longer meets the definition of an endangered species or a threatened species in our 2021 5-year status review, and we are proceeding with our recommendation to remove the species from the Federal List of Endangered and Threatened Plants in this proposed delisting rule.

(12) Comment: One reviewer asked how much unsurveyed potential habitat occurs on private lands. The reviewer recommended that we evaluate the risk of residential development to unsurveyed potential habitat on private lands based on how close these lands are to a municipality and current residential development, and their platting status.

Our response: We did not consider unsurveyed potential habitat in our review of the species' status and did not incorporate the reviewer's recommendation into the SSA report. Since the Act requires us to use the best available scientific and commercial information available, we must consider the range of the species as it is currently known. Therefore, we evaluated the residential development stressor to the species and its known occupied habitat, not the status of unsurveyed potential habitat.

(13) Comment: One reviewer stated that climate change may negatively affect pollinator abundance.

Our response: We considered the reviewer's statement and note they did not provide supporting information. We summarized available pollinator information for North Park phacelia in comment number 9, above. We are aware of the potential for climate change to disrupt plant-pollinator interactions if plant flowering and pollinator emergence become out of sync (Gérard et al. 2020, entire). We did not incorporate the comment into the SSA report because plant-pollinator disruption is not a current concern for North Park phacelia and we have no information to indicate that it is likely to occur in the future.

(14) Comment: One reviewer recommended adding another metric, pollinator abundance, to evaluate the current and future condition of North Park phacelia populations because research indicates that adequate pollination is important for species persistence and representation (Warren 1990, entire), climate change may affect pollinator abundance, and pollinators are not explicitly evaluated in the ecological setting metric.

Our response: We agree that pollinator abundance has the potential to influence the resiliency of populations; however, we do not have population abundance or trend information for any of the floral visitors identified in the Warren 1990 study. Best available scientific information indicates that North Park phacelia produces seeds regularly and pollinator-limitation is not a concern for the species. Therefore, we did not include a pollinator abundance metric in our current and future condition evaluation of North Park phacelia populations.

(15) Comment: One reviewer stated that we do not know the temperature requirement to break seed dormancy in North Park phacelia, and the annual mean temperature metric does not necessarily relate to temperatures required to break seed dormancy in the species based on an evaluation of climate information by BLM (Krening 2020, entire). The reviewer recommended that the annual mean temperature metric be considered a placeholder for modeling the impacts of temperature change and should be refined in future SSA revisions as our knowledge of germination requirements improves.

Our response: We reviewed the BLM report (Krening 2020, entire) and North Park phacelia is able to germinate over a range of cold temperatures. We did not incorporate the reviewer's recommendation into the SSA report to retain this metric. Instead, we removed the annual mean temperature metric from our evaluation of current and future condition in the SSA report because it was redundant to the other climate metric we retained in our analysis, the growing season water deficit (GSWD) metric, which is calculated using a combination of seasonal temperature and precipitation information.

(16) Comment: One reviewer recommended that we measure the distance between populations and evaluate the ability of known insect pollinators to travel these distances because low levels of connectivity were identified in Riser et al. (2019, entire).

Our response: We evaluated the distance between North Park phacelia populations that are more than 2 miles apart within the North Park and Larimer River basins. These distances may exceed the maximum flight distances (approximately 1.5 miles (mi) (2,500 m)) of the larger pollinators like bumblebees ( Bombus sp.); however, bumblebees are able to cover large areas (up to 107 acres (ac) (44 hectares (ha)) in a few days (Hagen et al. 2011, p. 1). We would expect shorter flight distances and area coverage from smaller pollinators. We did not evaluate the ability of North Park phacelia's pollinators to travel between populations because the best available information already indicates that low levels of connectivity may be inherent to the species and low levels have persisted over the last 10,000 generations (approximately the last 5,000 years) (Naibauer and McGlaughlin 2022, entire). Therefore, we determined that the recommendation would not provide additional information about gene flow between North Park phacelia populations.

(17) Comment: One reviewer disagreed with the future condition scores for the population abundance and occupied habitat area metrics that remain the same as current condition under all future scenarios. The reviewer recommended that we change the scoring under future scenarios as was done in SSA reports for other Colorado plants (Rocky Mountain monkeyflower ( Mimulus gemmiparus ) and Skiff milkvetch ( Astragalus microcymbus )) but did not recommend a particular score for these metrics. The reviewer also recommended that if we add a pollinator abundance metric to our evaluation, as discussed above in comment number 14, future condition scores should be different than current condition scores for that metric as well.

Our response: We considered the reviewer's recommendation but did not change the future condition scores for the population abundance and occupied habitat area metrics. As we mentioned in the SSA report, we are not able to reliably project direct future changes to these two metrics. We expect both metrics to change on an annual basis as they do currently in response to climate and demographic factors (Service 2023, pp. 25-30). Thus, we projected future changes to climatic factors, as measured by the GSWD metric, to assess the potential future change in plant abundance and occupied habitat area indirectly in our evaluation of future condition (Service 2023, pp. 36-47). We did not add a pollinator abundance metric to our evaluation as discussed in our response to comment number 14.

(18) Comment: One reviewer recommended that we include the BLM frequency data in our evaluation of current and future condition. The reviewer considers the BLM frequency data to be statistically robust and stated that the large, annual fluctuations in plant frequency very likely reduce the resilience of small North Park phacelia populations despite not knowing the underlying cause of the fluctuations.

Our response: We declined to include the BLM frequency data as a metric in our evaluation of current and future condition because these data are not available for all populations (Service 2023, p. 26). However, we incorporated the BLM data in the SSA Report when describing and evaluating the species' response to climate, demographic factors, and catastrophic events such as prolonged drought conditions.

(19) Comment: One reviewer recommended that we summarize the scope, hypotheses, and findings of two studies, Colorado Natural Areas Program (1994) and McCormick and Wu (1999), which we cite in the SSA report.

Our response: We summarized the findings of the two studies but declined to include more detail such as their scope and hypotheses in the SSA report, because they were not relevant to our analysis. The two studies are publicly available for those interested in the level of detail desired by the peer reviewer.

(20) Comment: We received conflicting comments from two peer reviewers on the following sentence in the draft SSA report: “North Park phacelia needs to maintain all 11 populations in their current configuration and distribution to maintain viability.” One reviewer agreed with the sentence, and another reviewer questioned its accuracy and recommended that we state that this is a hypothesis rather than a fact if there is no supporting information.

Our response: We considered the reviewers' comments and agreed with the reviewer who questioned the accuracy of the sentence because we do not have supporting information that indicates all 11 populations known at the time of the draft SSA report are needed for viability. We revised the sentence to be consistent with our analytical framework and best available information that North Park phacelia needs multiple, resilient populations distributed across its range to reduce risk associated with catastrophes such as severe, prolonged drought (redundancy) and longer-term environmental change (representation) (Service 2023, pp. 18-19).

(20) Comment: One reviewer considers the following sentence to be misleading because the BLM frequency data provides reliable and representative rangewide trend data for North Park phacelia in Jackson County: “Reliable range-wide census data are not available to compare year-to-year abundance, or trend, because survey data were not collected every year nor at every occurrence.”

Our response: We removed the words, “or trend” in the sentence to partially address the comment in the SSA report. However, we consider the rest of the sentence to be accurate with respect to census data because we are not able to derive census data from the BLM frequency data. Furthermore, we agree with the reviewer that the trend information derived from the BLM frequency data applies only to those populations in the North Park basin, not to the populations in the Larimer River and Troublesome Creek basins.

(21) Comment: One reviewer stated that the conclusions of the SSA report were not clear and recommended that the information in appendix A be discussed in more detail or perhaps appendix A should be added to the body of the SSA report.

Our response: We added more detail and a summary of the information in appendix A to the SSA report to partially address the comment. However, we did not add appendix A to the body of the SSA report to maintain a consistent document format and for ease of reading. Appendix A is part of the SSA report, and there was no added benefit to moving the appendix to the body of the SSA report. All information in the SSA report was considered in making our determination of the species' status under the Act.

On September 2, 1980, we proposed to list the North Park phacelia as an endangered species due to its small, localized extent of one population and the threat of OHV use, specifically motorcycle use, as well as livestock trampling, potential energy development of coal and oil and gas, and the inadequacy of regulatory mechanisms (45 FR 58168-58171). We determined that it would not be prudent to designate critical habitat because of the concern of collection. A second population was identified in 1981 on BLM lands within a Known Recoverable Coal Resource Area that was partially leased for oil and natural gas and subject to livestock trampling. On September 1, 1982, we finalized the listing of North Park phacelia as an endangered species (47 FR 38540). The final rule included a determination that the designation of critical habitat for North Park phacelia was not prudent. In 1986, we published a final recovery plan for North Park phacelia (Service 1986, entire). In 2012, we published a 5-year status review that recommended the species remain an endangered species under the Act (Service 2012, entire).

On April 12, 2019, we published a notice of initiation of a 5-year review for the North Park phacelia in the Federal Register and requested information that could have a bearing on the status of North Park phacelia (86 FR 14965-14966). We completed the 5-year status review on August 30, 2021; this 5-year status review recommended that North Park phacelia be delisted since it does not meet the definition of an endangered species or a threatened species under the Act.

A thorough review of the taxonomy, life history, and ecology of the North Park phacelia is presented in the SSA Report Version 1.1 (Service 2023, entire). Recent genetic work has updated the status and range of North Park phacelia since it was listed in 1982. In 2019, a genetic study using microsatellite markers identified that three populations of a closely related subspecies, Scully phacelia ( Phacelia formosula var. scullyi ), in adjacent Larimer County, Colorado, were actually North Park phacelia based on an evaluation of genetics, morphology, and ecology, grouping them with the North Park phacelia ( Phacelia formosula ) populations in Jackson County, Colorado (Riser et al. 2019, pp. 7-8). Most recently, in 2022, a genetic study using random site-associated DNA sequencing (RADseq) confirmed the Riser et al. (2019) findings that the three populations in Larimer County are North Park phacelia and determined that another population in Grand County, Colorado, is also North Park phacelia. This population in Grand County was formerly identified as Troublesome phacelia ( Phacelia gina-glenneae ) (Naibauer and McGlaughlin, 2022, entire). These genetic studies are summarized in the SSA report (Service 2023, pp. 3, 8).

North Park phacelia is an herbaceous, short-lived plant in the waterleaf family ( Hydrophyllaceae ) (Ackerfield 2022, p. 533; Service 2023, pp. 5-7). The species occurs in Jackson, Larimer, and Grand Counties, Colorado, at elevations ranging from 7,490 to 8,260 ft (2,282-2,517 m). North Park phacelia grows in sparsely vegetated, well-drained, barren soils of the Coalmont formation, Niobrara Shale, and clay and white shale of the Troublesome Creek formation surrounded by sagebrush-dominated habitat ( Artemisia tridentata var. vaseyana and Artemisia nova ) (CNHP 2015a, p. 1; CNHP 2020 pp. 2-3; Service 2023, pp. 6-7).

North Park phacelia plants grow up to approximately 9 inches (in) (22 centimeters (cm)) tall, with one to many stems, and purple or violet flowers on flowering stalks (inflorescences) shaped like a coiled scorpion's tail (helicoid cyme) (Spackman et al. 1997; Ackerfield 2022, p. 533). Each fruit produces four small seeds (Atwood 2010, p. 1). North Park phacelia has four life stages: seeds, seedlings, rosettes, and reproductive adults. Plants live for 1 year (annual) or 2 years (biennial) with one reproductive event if they survive to adulthood. Flowering occurs from late spring through the summer (June through August) during the driest time of the year with June being the most significant transition time to flowering (McCormick and Wu 1999, p. 7). Successful reproduction to produce seeds likely depends on the temperature and moisture conditions of the spring and summer months of that year as well as favorable conditions during the prior year for seedling establishment and rosette survival (McCormick and Wu 1999, pp. 5, 8). The species is not known to reproduce asexually.

Measurable differences in plant morphology (size, leaves, and seeds) in plants and soil type occur across the range by county (and basin). Plants in Jackson and Larimer Counties (the North Park and Larimer River basins) generally have a life span of 2 years and occasionally 1 year. Plants in Grand County (the Troublesome Creek basin) generally have a life span of 1 year. These morphological, life history, and soil differences contributed to the previous taxonomic delineations mentioned above that are no longer applicable (Naibauer and McGlaughlin 2022, pp. 2, 5-7, 23). The Integrated Taxonomic Information System (ITIS) considers North Park phacelia to be a distinct species (ITIS 2023, entire).

Pollinators are likely needed to support maximum reproduction and genetic diversity of the species. Plants can produce seeds without pollinators by self-pollination, although this process results in lower fruit and seed production (Warren 1990, pp. iii, 16). While we do not know what the most important pollinators are for North Park phacelia, insect floral visitors include hover flies, wasps, and a variety of bees (Warren 1990, p. 44; Service 2023, pp. 13-14). Native bees in the following genera are frequent floral visitors: plasterer bees ( Colletes spp. ), small carpenter bees ( Ceratina spp. ), sweat bees ( Dialictus spp. ), and potter bees ( Anthidium spp. ) (Warren 1990, pp. 17-18).

Seeds are produced in the fall and likely require a period of cold stratification (cold temperatures and moist conditions) during the winter months to break dormancy before germinating the following spring or fall (Gamboa-deBuen and Orozco-Segovia 2008, entire). Specific germination requirements of North Park phacelia are not known but likely consist of some combination of appropriate temperature and moisture conditions (Krening 2020, p. 6).

We have incomplete information regarding the longevity of seeds in the seedbank. North Park phacelia seeds are known to remain viable within the soil for at least 1 to 2 years, and longer timeframes are likely but have not been evaluated (Krening 2020, p. 2; Krening and Dawson 2021, p. 5). Based on information for two other species in the Phacelia genus with similar life histories, the species likely maintains a persistent seedbank with seeds remaining viable for extended periods, anywhere from approximately 4 to 18 years (Langton 2015 pp. v, 1; Meyer 2018, p. 1; Service 2013, p. 1).

North Park phacelia disperses primarily over short distances through wind, water runoff, ants, and gravity (seeds roll downhill within the habitat). Given the species' expanded range, long-distance dispersal events likely occurred in the past. North Park phacelia's level of genetic diversity is low (using RADseq methods) to moderate (using microsatellite methods) (Naibauer and McGlaughlin 2022, pp. 16-18; Riser et al. 2019, p. 7). These differences in the amount of genetic diversity (moderate in one study versus low in another) are expected based on the different methodologies (Forester 2022, p. 1; Thurman 2022, p. 1). There is agreement by both studies on the differences in genetic structure of populations between the three basins ( i.e., at the county level), which are likely the result of isolation effects from the long distances and mountain ranges that separate them (Naibauer and McGlaughlin 2022, pp. 16-18; Riser et al. 2019, p. 7, Forester 2022, p. 2; Thurman 2022, p. 1; Service 2023, pp. 3, 8). These genetic differences are consistent with past taxonomic delineations of different species and subspecies in the three basins (see earlier discussion).

Preliminary genetic information indicates there is little to no recent or historical gene flow between populations over the last approximately 10,000 generations (5,000 to 10,000 years); however, there appears to be sufficient gene flow and genetic diversity within populations that inbreeding is not a concern (Naibauer and McGlaughlin 2022, entire; Service 2022, pp. 3, 8). A more robust sampling and genetic analysis of gene flow is needed to confirm or refute these results (Forester 2022, p. 1). Genetic variation occurs between populations, and the genetic differences increase with distance, indicating a pattern of isolation by distance (Naibauer and McGlaughlin 2022, pp. 3, 16-17, 25). Populations near each other are more alike genetically due to larger amounts of gene exchange relative to more distant populations (Naibauer and McGlaughlin 2022, pp. 3, 27-28). The genetic results indicate the species has a poor dispersal ability and there is little to no pollinator-mediated gene flow between populations.

North Park phacelia's current range in Colorado extends approximately 779 square miles (mi 2 ) (2,018 square kilometers (km 2 )) from the Laramie River in northwestern Laramie County, across the Medicine Bow Mountain Range to North Park in Jackson County, and across the Rabbit Ears Mountain Range to Troublesome Creek in Grand County. The species is distributed in three basins (Laramie River, North Park, and Troublesome Creek), one basin per county, and each basin is separated by a mountain range. The North Park phacelia occurs on approximately 452 ac (183 ha) of occupied habitat, primarily on Federal lands that are managed by BLM and the Service and that comprise 81 percent of its occupied habitat. The remaining occupied habitat (19 percent) occurs on private lands, 5 percent of which is managed under a conservation easement specifically designed to protect North Park phacelia (Service 2023, pp. 10-11).

We do not know if the North Park phacelia was more broadly distributed historically. North Park phacelia's current range is much larger than was known at the time of listing due to the discovery of new populations in Jackson County and the taxonomic revisions of populations in Laramie and Grand Counties. At the time of Federal listing, there were only two known North Park phacelia populations with approximately 2,700 plants located in North Park (Jackson County), Colorado (47 FR 38540, September 1, 1982). As of 2023, there are 12 known populations with approximately 23,000 to 26,000 plants, an increase of more than 20,300 plants than we reported in our listing rule (47 FR 38540, September 1, 1982). The current population size is also an increase of more than 8,600 plants than we reported in our 2021 5-year status review with the addition of the new population (Troublesome Creek Area of Critical Environmental Concern (ACEC)) in Grand County (Service 2023, pp. 3, 10-11).

Population trends for North Park phacelia are difficult to determine. The best available information includes periodic population estimates provided by the Colorado Natural Heritage Program (CNHP) and annual plant frequency monitoring (the presence or absence of the species within a monitoring grid of 1-m-by-1-m cells) conducted by BLM at five populations in North Park (Jackson County) over a 13-year period (2010 to 2022) (Krening and Dawson 2022, entire). The BLM frequency monitoring cannot be used to estimate population abundance, but it shows large amounts of annual variability attributed to climate and demographic variables with no clear trend over the 13-year period (Service 2023, pp. 25-26). The frequency monitoring also shows that North Park phacelia exhibits a strong response in some years to drought conditions, as seen in 2012 and 2020, with low to no above-ground plant abundance (Krening and Dawson 2022, entire). Following drought conditions, the species is resilient and plant abundance generally rebounds back to pre-drought levels in years with favorable precipitation.

Fluctuations in plant frequency are probably a response to drier conditions in conjunction with demography and perhaps the availability of other resources under various moisture conditions (Schwinning and Sala 2004, pp. 211-219). North Park phacelia and other short-lived plants have the potential to respond to climate conditions within a relatively short timeframe because of their short life span (Tielbörger et al. 2014, p. 2). They can employ adaptations to survive periods of resource limitation ( i.e., drought) and can respond strongly to available water (Alexander et al. 1994; p. 2004; Salguero-Gómez et al. 2012, p. 3100; Schwinning and Sala 2004, entire). Moreover, North Park phacelia's ability to respond quickly to precipitation levels is a response that is consistent and compatible with plant adaptations to survive semi-arid environments with periods of drought and is advantageous to avoid stressful conditions (Lesica and Crone 2007, p. 1367; Schwinning et al. 2004, entire; Schwinning and Sala 2004, entire; Verhulst et al. 2008, pp. 104-105). Based on the discovery of many new populations, the lack of extirpated populations, and the CNHP and BLM information, the distribution of the species appears to be currently stable.

Section 4(f) of the Act directs us to develop and implement recovery plans for the conservation and survival of endangered and threatened species unless we determine that such a plan will not promote the conservation of the species. Under section 4(f)(1)(B)(ii), recovery plans must, to the maximum extent practicable, include objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of section 4 of the Act, that the species be removed from the Federal Lists of Endangered and Threatened Wildlife and Plants.

Recovery plans provide a roadmap for us and our partners on methods of enhancing conservation and minimizing threats to listed species, as well as measurable criteria against which to evaluate progress towards recovery and assess the species' likely future condition. However, they are not regulatory documents and do not substitute for the determinations and promulgation of regulations required under section 4(a)(1) of the Act. A decision to revise the status of a species or to delist a species is ultimately based on an analysis of the best scientific and commercial data available to determine whether a species is no longer an endangered species or a threatened species, regardless of whether that information differs from the recovery plan.

There are many paths to accomplishing recovery of a species, and recovery may be achieved without all of the criteria in a recovery plan being fully met. For example, one or more criteria may be exceeded while other criteria may not yet be accomplished. In that instance, we may determine that the threats are minimized sufficiently and that the species is robust enough that it no longer meets the definition of an endangered species or a threatened species. In other cases, we may discover new recovery opportunities after having finalized the recovery plan. Parties seeking to conserve the species may use these opportunities instead of methods identified in the recovery plan. Likewise, we may learn new information about the species after we finalize the recovery plan. The new information may change the extent to which existing criteria are appropriate for identifying recovery of the species. The recovery of a species is a dynamic process requiring adaptive management that may, or may not, follow all of the guidance provided in a recovery plan.

Here, we provide a summary of progress made toward achieving the recovery criteria for the North Park phacelia. More detailed information related to conservation efforts can be found below under Summary of Biological Status and Threats. We completed a final recovery plan for the North Park phacelia in 1986 (Service 1986, entire). The 1986 plan includes objective, measurable criteria for delisting; however, the plan has not been updated for more than 30 years, so some aspects of the plan may no longer reflect the best scientific information available for the North Park phacelia.

Below is the single delisting criterion described in the 1986 North Park phacelia recovery plan (Service 1986, p. 9) and the progress made to date in achieving the criterion.

North Park phacelia may be considered recovered when 15 occurrences with 500 mature flowering plants each are identified and secured.

Based on information through 2022, there are a total of 12 populations with approximately 23,000 to 26,000 plants. We consider populations to be synonymous with the criterion's use of the word “occurrences,” and the current number of populations (12) does not meet the recovery criterion (of 15 populations). While we do not know the number of flowering plants in each population, we do know the current total population of the species (23,000 to 26,000), which includes flowering and non-flowering plants, exceeds the total number of flowering plants identified by this criterion (7,500). We also know that 7 populations (Case Flats, Potter Creek, Rockwell; Verner and Brownlee; Diamond J State Wildlife Area; North Park Resource Natural Area ACEC; Forrester Creek; Hohnholz North East; and Troublesome Creek ACEC) have at least 500 plants, which includes both flowering and non-flowering plants.

Given what we now know about the species' annual fluctuations in frequency and strong drought response (see Background, above), we do not expect populations to meet the recovery criterion (of 500 flowering plants) every year and consider this metric to be insufficiently tailored to the species' demography (life-history characteristics). This metric (500 flowering plants) is not specific to North Park phacelia but is an application of the 50/500 rule, a generalized rule of thumb to identify a minimum population size to avoid inbreeding depression (minimum of 50 breeding individuals) and maintain long-term genetic diversity for evolutionary potential (minimum of 500 breeding individuals) in an idealized population that is both small and isolated (Franklin and Frankham 1998, entire; Jamieson and Allendorf 2012, entire). Some researchers recommend that the metric of 500 breeding individuals should not be considered a prediction of extinction risk without further consideration of demography and gene flow (Jamieson and Allendorf 2012, pp. 580-583). Gene flow, even at very low levels, can maintain genetic diversity in populations with fewer than 500 breeding individuals, and lower genetic diversity is a poor predictor of extinction risk when threats such as habitat loss and demography are not taken into account (Swindell and Bouzat 2006, pp. 86-87; Palstra and Ruzzante 2008, pp. 3428, 3430, 3441-3443; Jamieson and Allendorf 2012, pp. 580-583). Recent work recommends an evaluation of many attributes, including but not limited to demography and levels of genetic diversity, to evaluate a species' adaptive capacity and vulnerability to changing conditions (Thurman et al. 2020, entire; Forester et al. 2023, entire).

The North Park phacelia populations occur primarily on Federal lands (81 percent of occupied habitat) with management plans in place to protect the species and its habitat, and we consider these populations to be secure. In addition, on private lands, The Nature Conservancy manages a conservation easement specifically designed to protect the species in perpetuity (5 percent of occupied habitat) (Byers 2023, entire); however, little to no protection exists on the remaining private lands (14 percent of occupied habitat). Despite the lack of protections on private lands for the North Park phacelia, no current or projected future population-level threats occur on these lands except for the Airport population (see Stressors, below). Thus, although not all populations are considered secure, we conclude that the intent of the criterion to ensure that sufficient populations were protected from threats into the future has been met for 11 of the 12 known populations. While the North Park phacelia's status does not meet the 1986 recovery criterion, we find that the species' populations are sufficiently resilient and that the smaller number of populations and lack of available information on flowering plant abundance within populations are no longer relevant given what we now know about the species.

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, we issued a finalrule that revised 50 CFR 17.31 and 17.71 (84 FR 44753) and ended the “blanket rule” option for application of section 9 prohibitions to species newly listed as threatened after the effective date of those regulatory revisions (September 26, 2019).

Our analysis for this decision applied the regulations that are currently in effect, which include the 2019 revisions. However, we proposed further revisions to these regulations on June 22, 2023 (88 FR 40764). In case those revisions are finalized before we make a final status determination for this species, we have also undertaken an analysis of whether the decision would be different if we were to apply those proposed revisions. We concluded that the decision would have been the same if we had applied the proposed 2023 regulations. The analyses under both the regulations currently in effect and the regulations after incorporating the June 22, 2023, proposed revisions are included in our decision file.

The Act defines an “endangered species” as a species that is in danger of extinction throughout all or a significant portion of its range, and a “threatened species” as a species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether any species is an endangered species or a threatened species because of any of the following factors:

(A) The present or threatened destruction, modification, or curtailment of its habitat or range;

(B) Overutilization for commercial, recreational, scientific, or educational purposes;

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

(E) Other natural or manmade factors affecting its continued existence.

These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species' continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects. The determination to delist a species must be based on an analysis of the same five factors.

We use the term “threat” to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term “threat” includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term “threat” may encompass—either together or separately—the source of the action or condition or the action or condition itself.

However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an “endangered species” or a “threatened species.” In determining whether a species meets either definition, we must evaluate all identified threats by considering the species' expected response and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species—such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the definition of an “endangered species” or a “threatened species” only after conducting this cumulative analysis and describing the expected effect on the species 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 we 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 the foreseeable future as a particular number of years. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider the timeframes applicable to the relevant threats and to the species' likely responses to those threats in view of its life-history characteristics. Data that are typically relevant to assessing the species' biological response include species-specific factors such as lifespan, reproductive rates or productivity, certain behaviors, and other demographic factors.

The SSA report documents the results of our comprehensive biological review of the best scientific and commercial data regarding the status of the species, including an assessment of the potential threats to the species. The SSA report does not represent our decision on whether the species should be proposed for delisting. 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 North Park phacelia's viability, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency is the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years); redundancy is the ability of the species to withstand catastrophic events (for example, droughts, large pollution events), and representation is the ability of the species to adapt to both near-term and long-term changes in its physical and biological environment (for example, climate conditions, pathogens). In general, species viability will increase with increases in resiliency, redundancy, and representation (Smith et al. 2018, p. 306). Using these principles, we identified the species' ecological requirements for survival and reproduction at the individual, population, and species levels, and described the beneficial and risk factors influencing the species' viability.

The SSA process can be categorized into three sequential stages. During the first stage, we evaluated individual species' life-history needs. The next stage involved an assessment of the historical and current condition of the species' demographics and habitat characteristics, including an explanation of how the species arrived at its current condition. The final stage of the SSA involved making predictions about the species' 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 which we then used to inform our regulatory decision.

The following is a summary of the key results and conclusions from the SSA report; the full SSA report can be found at Docket No. FWS-R6-ES-2023-0114 on https://www.regulations.gov.

In this discussion, we review the biological condition of the species and its resources, and the threats that influence the species' current and future conditions, in order to assess the species' overall viability and the risks to that viability. In addition, the SSA report (Service 2023, entire) documents our comprehensive biological status review for the species, including an assessment of the potential threats to the species.

The following is a summary of this status review and the best available information gathered since that time that has informed this decision.

Individuals of North Park phacelia need certain habitat factors, including: well-drained sandstone, shale, or clay soils of the Niobrara, Coalmont, and Troublesome Creek formations; a montane, mid-elevation climate (elevations ranging between 7,490 to 8,260 ft (2,282 to 2,517 m) with approximately 12 in (31 cm) of rain and 63 in (1.6 m) of snow per year; a period of cold, moist conditions during the winter to break seed dormancy and facilitate germination in the spring or fall; moisture during the spring and summer (growing season) for successful germination, establishment and reproduction (seed production); and pollinators for maximum reproduction (Service 2023, pp. 14-16; U.S. Climate Data 2023, entire).

To be sufficiently resilient, populations require recruitment, survivorship, and reproduction at rates able to sustain populations, in addition to pollinator connectivity between individuals within populations. We consider population resiliency to be positively correlated with plant abundance (Service 2023, pp. 16-17). Sufficiently resilient populations also contain enough individuals across each life stage (seed, seedling, and mature reproductive adult) to bounce back after experiencing environmental stressors such as drought, livestock grazing, habitat disturbance, and demographic stochasticity (births, deaths, and reproductive events that fluctuate over time). While we do not know the level or amount of recruitment necessary for populations to be sufficiently resilient, we assume that North Park phacelia populations are most resilient when all four life stages are present.

The number of populations across the landscape influences the redundancy of North Park phacelia. More populations across the range increase the species' ability to withstand catastrophic events. Individuals and populations inhabiting diverse ecological settings and exhibiting genetic or phenological variation add to the level of representation across the species' range. The greater diversity observed in North Park phacelia genetics, habitats, and morphology, the more likely it is to be able to adapt to change over time. Thus, the species needs (1) a sufficient number and distribution of resilient populations to withstand catastrophic events (redundancy) and (2) a range of variation that allows the species to adapt to changing environmental conditions (representation) (Service 2023, pp. 18-19). The SSA report provides additional detail on the species' individual-, population-, and species-level needs (Service 2023, pp. 11-19).

In the SSA report, we evaluated stressors and other actions that can positively or negatively affect North Park phacelia at the individual, population, or species levels, either currently or into the future (Service 2023, pp. 19-27). In this proposed rule, we will discuss only those factors in detail that could meaningfully impact the status of the species. Residential and urban development, off-highway vehicle (OHV) use, mining and energy development, livestock grazing, invasive plants, and climate change are all factors that influence or could influence the species' viability (Service 2023, pp. 19-27). Those stressors that are not known to have effects on North Park phacelia populations, such as small mammal and insect herbivory, pesticides, and agriculture, are not discussed here but are evaluated in the SSA report (Service 2023, pp. 21, 27, appendix A).

Private lands account for approximately 19 percent of occupied habitat for North Park phacelia populations (Service 2023 tables 3 and 4, p. 11). Currently, without a Federal nexus (funds, permits, or approval), the species has little to no protection from residential and urban development on the majority of private lands (14 percent of occupied habitat overall) with the exception of a conservation easement that protects one population (Diamond J State Wildlife Area) comprising 5 percent of occupied habitat. The conservation easement is held by The Nature Conservancy and specifically addresses the management and protection of North Park phacelia in perpetuity (Byers 2023, entire).

We assessed the residential and urban development stressor to North Park phacelia based on our evaluation of disturbance in and near known populations. We also included utility corridors and roads in our evaluation of this stressor. A very low level of residential and urban development occurs in or near plant populations, and residential and urban development does not appear to result in any loss of habitat (Service 2023, appendix A). The current human population estimate for Jackson County is 1,363, with a negative growth rate (−2.2 percent) from 2010 to 2022 (U.S. Census Bureau 2022, entire). The Colorado State Demography Office forecasts that Jackson County's human population will continue to decrease through 2050 (Colorado Department of Local Affairs 2022, entire). The Laramie River Valley portion of Larimer County where North Park phacelia occurs does not contain a municipality, and we assumed that population growth in this area is similar to the projections for Jackson County. We did not perform this evaluation for Grand County because the one population (Troublesome Creek ACEC) occurs on Federal lands designated as a land use avoidance area where rights of way (ROW) grants would be avoided to the extent possible (BLM 2015a, pp. 52-53, 70).

We incorporated the current levels and effects of this stressor in our evaluation of current resiliency. However, given the projected future declines in the human population, we did not project any changes in this stressor in our evaluation of future resiliency (Service 2023, pp. 22, 37-38).

In the final listing rule (47 FR 38540, September 1, 1982), off highway vehicle (OHV) use, specifically motorcycle use, was identified as a primary threat to North Park phacelia in one of the two known populations at the time. Negative effects of OHV use include habitat degradation and plant mortality (Goeft and Alder 2001, entire; Brooks and Lair 2005, entire; White et al. 2006, entire).

We assessed the OHV use stressor to North Park phacelia based on our evaluation of overlap and effects to known populations. We also included other types of off highway recreation, such as mountain biking, hiking, and target shooting, in our evaluation of this stressor. Excessive OHV use continues to occur in the one population (Airport) where it was identified at the time of listing, and this stressor does not appear to have changed since listing (CNHP 2020, p. 1; Service 2023, pp. 26, 33). This location is readily accessible, and corrective actions such as boulder placement may have restricted use temporarily, but those deterrents have been removed and are no longer restricting recreational access and use. This is the only location where OHV use has a population-level effect to North Park phacelia. Low to occasional OHV use was documented in four other populations (Service 2023, appendix A) and currently is affecting only individual plants. OHV use is not permitted on Refuge lands (López, 2023, pp. 1-3) or the private land under conservation easement (Byers 2023, entire).

We incorporated the current levels and effects of this stressor in our evaluation of current resiliency. However, given the projected future declines in the human population, declines in recreational use since listing in four populations, and relatively stable OHV use in the Airport population, we did not project any changes in this stressor in our evaluation of future resiliency (Service 2023, p. 37).

In the final listing rule (47 FR 38540, September 1, 1982), coal or oil and gas exploration was identified as a potential threat to North Park phacelia in one of the two known populations at the time. Negative effects of mineral and energy development include habitat loss and degradation, plant mortality, reduced plant growth and reproduction, and potential introduction and spread of invasive weeds (Brock and Green 2003, entire).

We assessed the mineral and energy development stressor to North Park phacelia based on our evaluation of overlap and effects to known populations. The best available information indicates this stressor is not present in North Park phacelia populations and there has been no infrastructure development supporting coal, oil, and natural gas development resulting in the loss of plants or habitat (Service 2023, pp. 20-36).

Currently, there are no active coal mining operations or applications for coal mines in Jackson, Larimer, or Grand Counties (Colorado Division of Reclamation, Mining and Safety 2023a and b, entire). Coal is located in Jackson County, but future mining is not likely to occur due to transportation costs (BLM 2009, pp. 8, 14; BLM 2015b, 3-191, 3-194).

We evaluated the number of oil and gas wells in and associated habitat disturbance near North Park phacelia populations. Our evaluation in the SSA report identified two closed (plugged and abandoned) oil and gas wells within 656 ft (200 m) of North Park phacelia populations but no recent habitat disturbance associated with the wells (Service 2023, pp. 23-24). The potential for oil and gas is high within Jackson County, nonexistent in Larimer County, and low in Grand County (BLM 2009, pp. 22, 49, 50, 52; BLM 2015b, 3-190). There are three populations partially or wholly within existing oil and gas leases in Jackson County. We are not aware of any proposed energy development projects in or near North Park phacelia populations. Similar to coal development, oil and gas development in Jackson County is strongly constrained by transportation costs (BLM 2009, pp. 3-4). Future oil and gas development will be restricted in North Park phacelia habitat based on regulatory mechanisms for this stressor afforded to the species and BLM sensitive species on Federal lands as discussed below.

On Federal lands, BLM provides regulatory mechanisms to protect North Park phacelia from mining and energy development. BLM provides a controlled surface use (CSU) stipulation of a 328-ft (100-m) to 656-ft (200-m) avoidance buffer for North Park phacelia and other BLM sensitive plant species that would apply to energy development (coal mining and oil and gas extraction) (BLM 2015a, pp. 24-26). BLM also provides a no surface occupancy (NSO) stipulation within Areas of Critical Environmental Concern (ACECs) and surveys and avoidance measures to protect North Park phacelia and other BLM sensitive species from plant and habitat loss associated with energy development (coal mining and oil and gas extraction) (BLM 2015a, pp. 64-65). On Refuge lands, most lands have been withdrawn from mining for coal and other locatable minerals. BLM is responsible for mineral management on Refuge lands that have not been withdrawn as well as oil and gas leasing and development; in those cases, BLM stipulations, surveys, and avoidance measures would also apply to Refuge lands (Service 2016, pp. 5-6). The BLM avoidance buffers minimize the potential for measurable, negative effects to North Park phacelia based on our literature review and evaluation for other rare, endemic plants growing in poorly developed or low-fertility soils (Service 2021b, chapter 7 and appendix E). Ten populations occur on lands where BLM regulations apply.

We incorporated the current levels and effects of this stressor in our evaluation of current resiliency. However, given the Federal regulatory mechanisms and lack of current mining and energy development or proposed projects in or near North Park phacelia populations, we did not project any changes in this stressor in our evaluation of future resiliency (Service 2023, pp. 24-25, 37).

In the final listing rule (47 FR 38540, September 1, 1982), livestock grazing was identified as a threat to North Park phacelia in the two known populations at the time. Negative effects of livestock grazing include habitat degradation through the drying or compaction of soils, plant mortality or damage from trampling resulting in reduced individual survival, growth and reproduction, potential introduction and spread of invasive weeds, and the consumption of floral resources for pollinators (Fleischner 1994, entire; Lovich and Bainbridge 1999, entire; Mustajarvi et al. 2001, entire; Reisner et al. 2013, entire).

We assessed the livestock grazing stressor to North Park phacelia based on reporting by the CNHP and agricultural statistics of livestock inventories in the three counties over time. Some populations show evidence of livestock use but no indication of plant damage or mortality (CNHP 2020, entire). On BLM lands, livestock grazing is managed during July and August in North Park phacelia habitat to allow plants to flower and set seed (BLM 2015a, p. H-2). On Refuge lands, livestock grazing is not permitted in North Park phacelia habitat (López, 2023, pp. 1-3). The best available information indicates this stressor is currently affecting only individual plants and is not having a population-level effect to North Park phacelia. Agricultural statistics on livestock totals in the three counties over a 20-year period (1997 to 2017) indicate an approximately 50 percent drop in livestock numbers in Jackson County (28,748 to 14,207) with relatively stable numbers in Larimer and Grand Counties (U.S. Department of Agriculture 2023, entire).

We did not incorporate the current levels and effects of livestock grazing in our evaluation of current and future resiliency because this stressor is not having a population-level effect to North Park phacelia. We do not expect grazing management to change on Refuge lands and on BLM lands under the current BLM resource management plan (RMP) (see Conservation Efforts and Regulatory Mechanisms, below; Service 2023, pp. 22-23). Given the stability and decline in livestock totals per county discussed above, we do not expect livestock grazing to increase in North Park phacelia habitat in the future.

Invasive plants were not identified as a threat to North Park phacelia at the time of listing or in the 2012 status review (Service 2012, entire). Russian thistle ( Salsola tragus ), other thistles ( Cirsium spp.), and cheatgrass ( Bromus tectorum ) are present in a few populations and appear to be associated with disturbance from development, OHV use, and livestock grazing (Service 2012, pp. 8, 11; CHNP 2020, pp. 9, 14, 47; Service 2022, p. 3). The Refuge is addressing this stressor by removing invasive thistle by hand (Service 2022, p. 3). The best available information indicates this stressor is currently affecting only individual plants and is not having a population-level effect to North Park phacelia.

We considered the effects of invasive plants to population resilience as part of our disturbance evaluation because this stressor is associated with development, roads, and other surface disturbance (Service 2023, pp. 20-23).

Climate change may affect the long-term survival of native species, including North Park phacelia, especially if longer or more frequent droughts occur. Within the range of North Park phacelia, under lower emission scenarios, summer maximum temperature is expected to increase 4.7 °F (2.6 °C), and under higher emission scenarios, summer maximum temperature is expected to increase 6.6 °F (3.7 °C) by mid-century, compared to the historical average between 1971 and 2010 (Hegewisch and Abatzoglou 2023, entire). Extreme droughts, like those that occurred in 2012 and 2020, could also become more frequent by mid-century. Historically (1979 to 2000), droughts of this scale did not occur within the range of the species (Service 2023, appendix B). Under lower emissions scenarios, these extreme droughts could occur four times between now and mid-century or, under higher emissions scenarios, five times between now and mid-century (Service 2023, appendix B).

North Park phacelia appears to respond strongly and quickly to climate conditions with peak years and trough years of plant frequency, although some uncertainty exists about the climate variables to which the species is responding. Growing season (spring and summer) precipitation appears to be important for plant survival and reproduction; however, seedling recruitment and plant frequency are not strongly correlated with precipitation and temperature (Krening and Dawson 2021, p. 4; Service 2023, p. 24). In some of the populations, there is a 3-to-5-year cycle of plant abundance fluctuations (peak to trough years), which appears to be influenced by climate conditions and demography (Krening and Dawson 2021, p. 4). Two trough years (2012, 2020) with lower plant frequency likely reflect the extreme drought conditions during the growing season. The drought conditions of these 2 years, as measured by the growing season water deficit (GSWD), was approximately 27 in (68.6 cm). Another trough year (2016) occurred in a year with average growing season precipitation and cannot be attributed to drought. Rather, the working hypothesis is that the 2016 trough year was potentially influenced by demographic factors. One limitation is the lack of population-level climate data; there is only one weather station in Jackson County that provides climate information for the entire species' range. Rainfall is highly localized across the range of the species and may vary across short distances and among the populations in Jackson County (Timberman, pers. comm. 2022).

As we mentioned above, growing season precipitation appears to be important for plant survival and reproduction and appears to influence the variation in annual plant frequency. We evaluated historical and current growing season precipitation conditions with the GSWD metric, a measure of the difference between potential evapotranspiration (water loss by evaporation and transpiration by plants) and precipitation during the growing season. We consider the GSWD metric to be a proxy for plant stress, with higher GSWD values indicating drier conditions and greater plant stress during the growing season. Other climate factors likely play a role in annual frequency variation, but we do not fully understand these relationships. We compared the average GSWD for the historical time period (1971-2000) to the current time period (2011-2022). The historical time period is slightly wetter (lower average GSWD) compared to the current time period. The historical (1979-2000) average GSWD was 21.96 in (55.78 cm) and varied annually between a low of 15 in (38 cm) to a high of 26 in (66 cm) (Service 2023, p. 30, appendix C). Half of the historical time period (11 years) had near-average GSWD conditions (within one-half standard deviation of the average), with 4 wet years and 4 drought years. The current (2011-2022) average GSWD was 23.15 in (58.8 cm), a near-average historical GSWD value. As mentioned above, based on our evaluation of the BLM frequency monitoring, a GSWD of 27 in (68.6 cm) may be a significant drought threshold where North Park phacelia primarily remains dormant in the seedbank.

Given North Park phacelia's strong response to climate conditions, we carried forward this stressor in our analysis in the SSA report to examine the species' potential response to future changes in this stressor. We relied on the historical average GSWD as the baseline to compare current and projected future climate conditions.

We note that, by using the SSA framework to guide our analysis of the scientific information documented in the SSA report, we have analyzed the cumulative effects of identified threats and conservation actions on the species. To assess the current and future condition of the species, we evaluate the effects of all the relevant factors that may be influencing the species, including threats and conservation efforts. Because the SSA framework considers not just the presence of the factors, but to what degree they collectively influence risk to the entire species, our assessment integrates the cumulative effects of the factors and replaces a standalone cumulative-effects analysis.

In our SSA report, we evaluate current condition by examining current levels of resiliency in the 12 North Park phacelia populations and implications for redundancy and representation. Here, we summarize our evaluation of the current condition for resiliency, redundancy, and representation. Additional detail regarding our analysis is provided in the SSA report (Service 2023, pp. 20-36).

We describe the resiliency for each of the 12 populations in terms of the habitat and demographic factors needed by North Park phacelia (Service 2023, pp. 14-20, 27-35). We developed a categorical model to calibrate resiliency for the range of habitat and demographic conditions in each population. We first identified resource or demographic factors that contribute to the species' resiliency; these factors align with the individual resource needs and population-level needs we identified in the SSA analysis. We then defined threshold values for each identified resource or demographic factor that represent high, moderate, or low levels of that factor. Finally, we evaluated whether the current levels of each resource or demographic factor in a population fall within the predetermined thresholds for a high, moderate, or low score for the category; we then averaged these scores for each category to develop an overall current resiliency score for each population.

For North Park phacelia, our categorical model assessed the resiliency of each population by evaluating (1) the size of the occupied habitat area; (2) the ecological setting, a proxy for habitat condition that quantifies disturbance levels and evaluates a number of stressors including residential and urban development, OHV use, mineral and energy development, and invasive species cover; (3) population abundance; and (4) growing season water deficit (GSWD), a proxy for drought and soil moisture that approximates the availability of water during the spring and summer. We selected these habitat and demographic factors based on their importance to the species' resiliency and because we could evaluate them relatively consistently across all 12 populations.

Resiliency categories, thresholds, and scores were established based on the best available information and professional opinion of species experts. Occupied habitat areas are estimates based on expert opinion by CNHP and BLM using aerial imagery or field observations. Ecological setting and disturbance levels are based on a spatial analysis with conservative thresholds to compensate for the lack of detailed species-specific information and monitoring. Population abundance information is based on estimates by CNHP using field observations. GSWD, the difference between potential evapotranspiration and precipitation during the growing season, is based on climate data provided by the North Central Climate Adaptation Science Center and the Cooperative Institute for Research in Environmental Sciences.

There are 12 North Park phacelia populations, and according to our current condition analysis in the SSA report, half of them (6) have high resiliency, 5 have moderate resiliency and 1 has low resiliency (see table 1, below; Service 2023, p. 30). The 11 populations with high and moderate resiliency maintained adequate ecological setting conditions with low levels of disturbance, moderate or high population abundance, and a range of scores for occupied habitat areas. The 11 populations with high or moderate resiliency are distributed across the species' range (present in all three basins) (table 1). Of these, 6 populations have thousands of plants, the largest is estimated to have more than 8,600 plants, and these large populations are also distributed across the species' range (present in all three basins) (table 1). The Airport population in the North Park basin has a low resiliency score due to its low scores for occupied habitat area, population abundance, and ecological setting. This population has higher levels of disturbance from OHV use, and a road and parking lot surround this population, fragmenting the habitat. All 12 populations received a high score for GSWD because the current average (2011 to 2022) is similar to the historical average (1979 to 2000) for this metric. The 11 populations with high or moderate resiliency are at less risk from potential stochastic events, such as climatic variation, than the population with low resiliency.

Redundancy describes the number and distribution of populations, and the greater the number and the wider the distribution of the populations, the better North Park phacelia can withstand catastrophic events. The plausibility of catastrophic events also influences species' redundancy; if catastrophic events are unlikely within the range of the species, catastrophic risk is inherently lower. We identified severe and prolonged drought conditions as a plausible catastrophic event that may affect one or more populations simultaneously.

Redundancy for narrow endemic species is intrinsically limited; however, North Park phacelia populations are distributed across 3 basins (separated by 2 mountain ranges and approximately 20 mi (30 km) and 45 mi (72km)) in 12 populations within the range of the species. Within each basin, populations are separated by at least 1 mile (1.6 km). As we mentioned above, the 11 populations with high or moderate resiliency are distributed across the species' range (present in all 3 basins), and the 6 large populations with thousands of plants are also distributed across the species' range (present in all 3 basins). Thus, the 11 higher resiliency populations and their distribution help spread the risk of catastrophic drought conditions over a larger geographic area and contribute to the species' ability to withstand catastrophic events. We are not aware of any verified populations that have been extirpated (Service 2023, pp. 8-9). Redundancy has increased since North Park phacelia was listed because of our better understanding of the species, including more known populations, and a broader known distribution.

North Park phacelia exhibits some ecological and morphological variability between the three basins (see Background, above). The species has low to moderate genetic diversity and inbreeding is not a concern (Naibauer and McGlaughlin 2022, pp. 2-3, 25). Genetic variation occurs between populations, and the genetic differences increase with distance. Connectivity between nearby North Park phacelia populations appears to be low currently and historically (Naibauer and McGlaughlin 2022, pp. 3, 25). Six genetic management units were identified for the species, four in North Park basin, and one each in the Larimer River and Troublesome Creek basins (Naibauer and McGlaughlin 2022, pp. 27-28). Representation has increased since North Park phacelia was listed because taxonomic studies have led to the inclusion of additional populations previously considered different species and subspecies that contain more genetic variation (see Background, above).

In our SSA report, we forecasted the resiliency of North Park phacelia populations and the redundancy and representation of the species to mid-century (2050) using a range of four plausible future scenarios that capture the range of plausible climate conditions of the four different climate models and emissions scenarios (Bamzai-Dodson and Rangwala 2019, p. 15; Rangwala et al. 2021, pp. 4-5). We selected this timeframe because it encompasses approximately 15 generations of North Park phacelia and allows us to reliably project changes in the species' stressors, land management ( i.e., this timeframe encompasses at least the duration (30 years) of the applicable BLM resource management plan), and the species' response to stressors. While climate projections are available beyond 2050, there is a high degree of uncertainty in the species response to future climate conditions because information about North Park phacelia's physiological and genetic responses that may confer tolerance and adaptive capacity are unknown, and the potential exists for seedbank persistence under longer or more frequent drought conditions.

We developed four future scenarios using four plausible climate models that were downscaled to the range of North Park phacelia. By developing a range of plausible future scenarios, we assume that actual future conditions will likely fall somewhere between these four scenarios. Detailed descriptions of each scenario are available in the SSA report (Service 2023, pp. 36-47). Future climate conditions were the only differences among the four scenarios to capture the range of possible drought conditions (using the GSWD metric) to assess how well future climate conditions meet the needs of the species. Based on the best available information, our future scenarios included the assumption that the other stressors will not change in the future. Many of the stressors that affect North Park phacelia at the individual level currently do not influence population resiliency and are not expected to change in the future, so we did not change their extent or severity in our future scenarios. We initially considered increasing the amount of disturbance by as much as 10 percent in all populations, but the outcome did not change the future conditions of populations. Given the strong fluctuations in population abundance, we could not reliably project changes to the future population abundance metric directly. Instead, we relied on the future projections of the GSWD metric to evaluate future climate conditions and provide an indirect assessment of the population abundance. We generally expect population abundance to increase in years with average or near-average GSWD and decline in years with below-average GSWD, consistent with the thresholds we identified for this metric.

In Scenario 1 (Warm and Wet), we project the resiliency of each population and the species' redundancy and representation will remain the same as the current condition (table 2). The average GSWD is projected to increase slightly compared to the historical average (by 0.96 in (2.4 cm)) but remains in the high-condition category for the GSWD metric. These slightly drier conditions would have minimal impact to populations because they are well within the range of variability that the species experienced historically. Between now and mid-century, the climate model projects only 1 year of GSWD above 27 in (68.6 cm; drought conditions associated with low plant frequency), which is less frequent than we have seen during the current condition time period (2011 to 2022). North Park phacelia is projected to maintain 11 populations with high or moderate resiliency in this scenario, and these populations are at less risk from potential stochastic events, such as climatic variation, than the population with low resiliency.

In Scenario 2 (Hot and Wet), we project the resiliency of nine populations will remain the same as the current condition, and three populations (Diamond J Ranch, Hohnholz North East, and Diamond J State Wildlife Area) will drop from high to moderate overall resiliency (table 2). Redundancy and representation remain relatively unchanged from the current condition. The average GSWD is projected to increase compared to the historical average (by 2.26 in (5.74 cm)), which results in the moderate-condition category for the GSWD metric. Between now and mid-century, the climate model projects 6 years of GSWD above 27 in (68.58 cm; drought conditions associated with low plant frequency), 2 of which were consecutive years, which is more frequent than seen during the current condition time period (2011 to 2022). The increase in water deficit as compared to historical conditions under this scenario (meaning that less water would be available to the plants) has the potential to negatively impact plant abundance. We expect the seedbank to remain viable under this projection and to support population resiliency. Despite some reduction in resiliency, North Park phacelia is projected to maintain 11 populations with high or moderate resiliency under this scenario, and these populations are at less risk from potential stochastic events, such as climatic variation, than the population with low resiliency.

In Scenario 3 (Very Hot and Very Wet), the resiliency of each population and the species' redundancy and representation are projected to remain the same as the current condition (table 2). The average GSWD is projected to increase slightly compared to the historical average (by 0.70 in (1.78 cm)) but remains in the high-condition category for the GSWD metric. These slightly drier conditions would have minimal impact to populations because they are well within the range of variability that the species experienced historically. Between now and mid-century, the climate model projects no years of GSWD above 27 in (68.58 cm; drought conditions associated with low plant frequency), which is less frequent than seen during the current condition time period (2011 to 2022). North Park phacelia is projected to maintain 11 populations with high or moderate resiliency under this scenario, and these populations are at less risk from potential stochastic events, such as climatic variation, than the population with low resiliency.

In Scenario 4 (Very Hot and Dry), we project the resiliency of nine populations will remain the same as current conditions, and three populations (Diamond J Ranch, Hohnholz North East, and Diamond J State Wildlife Area) will drop from high to moderate overall resiliency (table 2). Redundancy and representation remain relatively unchanged from the current condition. The average GSWD is projected to increase compared to the historical average (by 2.72 in (6.91 cm)), which results in the moderate-condition category for the GSWD metric. Between now and mid-century, the climate model projects 9 years of GSWD above 27 in (68.58 cm; drought conditions associated with low plant frequency), with 2 consecutive years and 3 consecutive years, which is more frequent than seen during the current condition time period (2011 to 2022). The increase in water deficit as compared to historical conditions under this scenario (meaning that less water would be available to the plants) has the potential to negatively impact plant abundance. We expect the seedbank to remain viable under this projection and to support population resiliency. Despite some reduction in resiliency, North Park phacelia is projected to maintain 11 populations with high or moderate resiliency, and these populations will be at less risk from potential stochastic events, such as climatic variation, than the population with low resiliency.