61460 Federal Register / Vol. 85, No. 189 / Tuesday, September 29, 2020 / Proposed Rules

DEPARTMENT OF THE INTERIOR resulting page, in the Search panel on • Proposes to list Wright’s marsh the left side of the screen, under the thistle as a threatened species. Wright’s Fish and Wildlife Service Document Type heading, click on the marsh thistle is a candidate species for Proposed Rule box to locate this which we have on file sufficient 50 CFR Part 17 document. You may submit a comment information on biological vulnerability [Docket No. FWS–R2–ES–2018–0071; by clicking on ‘‘Comment Now!’’ and threats to support preparation of a FF09E21000 FXES11110900000 201] (2) By hard copy: Submit by U.S. mail listing proposal, but for which to: Public Comments Processing, Attn: development of a listing rule has been RIN 1018–BC34 FWS–R2–ES–2018–0071; U.S. Fish and precluded by other higher priority Wildlife Service, MS: JAO/1N, 5275 listing activities. This proposed rule Endangered and Threatened Wildlife Leesburg Pike, Falls Church, VA 22041– reassesses all available information and Plants; Threatened Species Status 3803. regarding the status of and threats to for the Wright’s Marsh Thistle (Cirsium We request that you send comments this species. wrightii) With a 4(d) Rule and only by the methods described above. • Proposes a rule issued under Designation of Critical Habitat We will post all comments on http:// section 4(d) of the Act (‘‘4(d) rule’’) that AGENCY: Fish and Wildlife Service, www.regulations.gov. This generally would make it unlawful to remove and Interior. means that we will post any personal reduce to possession the species from areas under Federal jurisdiction; ACTION: Proposed rule. information you provide us (see Information Requested, below, for more maliciously damage or destroy the SUMMARY: We, the U.S. Fish and information). species on areas under Federal Wildlife Service (Service), propose to Availability of supporting materials: jurisdiction; or remove, cut, dig up, or list the Wright’s marsh thistle (Cirsium For the critical habitat designation, the damage or destroy the species on any wrightii), a plant species from New coordinates or plot points or both from other area in knowing violation of any Mexico, as a threatened species and which the maps are generated are law or regulation of any State or in the designate critical habitat under the included in the administrative record course of any violation of a State Endangered Species Act of 1973, as and are available at the New Mexico criminal trespass law. Nothing in the amended (Act). After a review of the Ecological Services website https:// proposed 4(d) rule affects in any way best available scientific and commercial www.fws.gov/southwest/es/NewMexico/ other provisions of the Act, such as the information, we find that listing the index.cfm and at http:// designation of critical habitat under species is warranted. Accordingly, we www.regulations.gov under Docket No. section 4, the recovery planning propose to list the Wright’s marsh FWS–R2–ES–2018–0071. Any provisions of section 4(f), and the thistle as a threatened species with a additional tools or supporting consultation requirements under section 7. rule issued under section 4(d) of the Act information that we may develop for the • (‘‘4(d) rule’’). If we finalize this rule as critical habitat designation will also be Proposes to designate critical proposed, it would add this species to available at the Service website set out habitat for the species on approximately the List of Endangered and Threatened above, and may also be included in the 64.3 ha (159 ac) in Chaves, Eddy, Plants and extend the Act’s protections preamble and/or at http:// Guadalupe, Otero, and Socorro to the species. We also propose to www.regulations.gov. Counties, New Mexico. The basis for our action. Under the designate critical habitat for Wright’s FOR FURTHER INFORMATION CONTACT: Act, we can determine that a species is marsh thistle under the Act. The Shawn Sartorius, Field Supervisor, New an endangered or threatened species proposed critical habitat totals Mexico Ecological Services Field Office, based on any of five factors: (A) The approximately 64.3 hectares (ha) (159 2105 Osuna Rd. NE, Albuquerque, NM present or threatened destruction, acres (ac)) in Chaves, Eddy, Guadalupe, 87113; telephone 505–346–2525; modification, or curtailment of its Otero, and Socorro Counties, New facsimile 505–346–2542. Persons who habitat or range; (B) overutilization for Mexico. We also announce the use a telecommunications device for the commercial, recreational, scientific, or availability of a draft economic analysis deaf (TDD) may call the Federal Relay educational purposes; (C) disease or of the proposed designation of critical Service at 800–877–8339. predation; (D) the inadequacy of habitat for Wright’s marsh thistle. SUPPLEMENTARY INFORMATION: existing regulatory mechanisms; or (E) DATES: We will accept comments other natural or manmade factors received or postmarked on or before Executive Summary affecting its continued existence. We November 30, 2020. Comments Why we need to publish a rule. Under have determined that stressors related to submitted electronically using the the Act, if a species is determined to be Factors A and E are causing Wright’s Federal eRulemaking Portal (see an endangered or threatened species marsh thistle to be threatened. ADDRESSES, below) must be received by throughout all or a significant portion of Section 4(a)(3) of the Act requires the 11:59 p.m. Eastern Time on the closing its range, we are required to promptly Secretary of the Interior (Secretary) to date. We must receive requests for publish a proposal in the Federal designate critical habitat concurrent public hearings, in writing, at the Register and make a determination on with listing to the maximum extent address shown in FOR FURTHER our proposal within 1 year. Critical prudent and determinable. Section INFORMATION CONTACT by November 13, habitat shall be designated, to the 4(b)(2) of the Act states that the 2020. maximum extent prudent and Secretary must make the designation on ADDRESSES: You may submit comments determinable, for any species the basis of the best scientific data by one of the following methods: determined to be an endangered or available and after taking into (1) Electronically: Go to the Federal threatened species under the Act. consideration the economic impact, the eRulemaking Portal: http:// Listing a species as an endangered or impact on national security, and any www.regulations.gov. In the Search box, threatened species and designations and other relevant impacts of specifying any enter FWS–R2–ES–2018–0071, which is revisions of critical habitat can only be particular area as critical habitat. the docket number for this rulemaking. completed by issuing a rule. Section 3(5)(A) of the Act defines Then, click on the Search button. On the What this document does. critical habitat as (i) the specific areas

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within the geographical area occupied commercial data available and be as curtailment of a species’ habitat or range by the species, at the time it is listed, accurate and as effective as possible. is not a threat to the species, or threats on which are found those physical or Therefore, we request comments or to the species’ habitat stem solely from biological features (I) essential to the information from other concerned causes that cannot be addressed through conservation of the species and (II) governmental agencies, Native management actions resulting from which may require special management American tribes, the scientific consultations under section 7(a)(2) of considerations or protections; and (ii) community, industry, or any other the Act; specific areas outside the geographical interested parties concerning this (c) Areas within the jurisdiction of the area occupied by the species at the time proposed rule. We particularly seek United States provide no more than it is listed, upon a determination by the comments concerning: negligible conservation value, if any, for Secretary that such areas are essential (1) Wright’s marsh thistle’s biology, a species occurring primarily outside for the conservation of the species. range, and population trends, including: the jurisdiction of the United States; Peer review. In accordance with our (a) Biological or ecological (d) No areas meet the definition of joint policy on peer review published in requirements of the species, including critical habitat. the Federal Register on July 1, 1994 (59 habitat requirements for all life cycle (7) Specific information on: FR 34270), and our August 22, 2016, stages, seed production and dispersal, (a) The amount and distribution of memorandum updating and clarifying and seed germination and growth; Wright’s marsh thistle habitat; the role of peer review of listing actions (b) Genetics and taxonomy; (b) What areas, that were occupied at under the Act, we sought the expert (c) Historical and current range, the time of listing and that contain the opinions of three appropriate and including distribution patterns; physical or biological features essential independent specialists during the (d) Historical and current population to the conservation of the species, analysis of the status of the species and levels, and current and projected trends; should be included in the critical the creation of the SSA report (USFWS and habitat designation and why; 2017). The purpose of peer review was (e) Past and ongoing conservation (c) Special management to ensure that our listing determination measures for the species, its habitat, or considerations or protections that may and critical habitat designation are both. be needed in the critical habitat areas based on scientifically sound data, (2) Factors that may affect the we are proposing, including managing assumptions, and analyses. The peer continued existence of the species, for the potential effects of climate reviewers have expertise in Wright’s which may include habitat modification change; and marsh thistle’s biology, life history, or destruction, overutilization, disease, (d) What areas not occupied at the habitat, and range, and in the physical predation, the inadequacy of existing time of listing that are essential for the or biological features of its habitat. One regulatory mechanisms, or other natural conservation of the species. We of three peer reviewers provided or manmade factors. particularly seek comments: comments on the species status (3) Biological, commercial trade, or (i) Regarding whether occupied areas assessment, which were integrated into other relevant data concerning any are inadequate for the conservation of the SSA report; these comments will be threats (or lack thereof) to this species the species; and, available along with other public and existing regulations that may be (ii) Providing specific information comments in the docket for this addressing those threats. that supports the determination that proposed rule (see http:// (4) Additional information concerning unoccupied areas will, with reasonable www.regulations.gov, Docket No. FWS– the historical and current status, range, certainty, contribute to the conservation R2–ES–2018–0071). distribution, and population size of this of the species and, contain at least one Because we will consider all species, including the locations of any physical or biological feature essential comments and information we receive additional populations of this species. to the conservation of the species. during the comment period on this (5) Information on regulations that are (8) Land use designations and current proposed rule, our final determinations necessary and advisable to provide for or planned activities in the subject areas may differ from this proposal. Based on the conservation of the Wright’s marsh and their possible impacts on proposed the new information we receive (and thistle and that the Service can consider critical habitat. any comments on that new in developing a 4(d) rule for the species. (9) Any probable economic, national information), we may conclude that the In particular, information concerning security, or other relevant impacts of species is endangered instead of the extent to which we should include designating any area as critical habitat threatened, or we may conclude that the any of the section 9 prohibitions in the that may be included in the final species does not warrant listing as either 4(d) rule or whether any other forms of designation, and the related benefits of an endangered species or a threatened take should be excepted from the including or excluding areas. species. Such final decisions would be prohibitions in the 4(d) rule. (10) Information on the extent to a logical outgrowth of this proposal, as (6) The reasons why we should or which the description of probable long as we: (1) Base the decisions on the should not designate habitat as ‘‘critical economic impacts in the draft economic best scientific and commercial data habitat’’ under section 4 of the Act (16 analysis is a reasonable estimate of the available after considering all of the U.S.C. 1531 et seq.), including likely economic impacts. relevant factors; (2) do not rely on information to inform the following (11) Whether any specific areas we are factors Congress has not intended us to factors such that a designation of critical proposing for critical habitat consider; and (3) articulate a rational habitat may be determined to be not designation should be considered for connection between the facts found and prudent: exclusion under section 4(b)(2) of the the conclusions made, including why (a) The species is threatened by taking Act, and whether the benefits of we changed our conclusion. or other human activity and potentially excluding any specific area identification of critical habitat can be outweigh the benefits of including that Information Requested expected to increase the degree of such area under section 4(b)(2) of the Act. We intend that any final action threat to the species; (12) Whether we could improve or resulting from this proposed rule will be (b) The present or threatened modify our approach to designating based on the best scientific and destruction, modification, or critical habitat in any way to provide for

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greater public participation and Previous Federal Actions affecting the species. The Service sent understanding, or to better On October 15, 2008, we received a the SSA report to 3 independent peer accommodate public concerns and petition from WildEarth Guardians reviewers and received 1 response. comments. requesting that we list Wright’s marsh I. Proposed Listing Determination Please include sufficient information thistle as an endangered or threatened with your submission (such as scientific species under the Act. Additionally, the Background journal articles or other publications) to petitioner requested that critical habitat Species Description allow us to verify any scientific or be designated concurrent with the commercial information you include. listing of Wright’s marsh thistle (thistle). Wright’s marsh thistle (Gray 1853, p. Please note that submissions merely On September 10, 2009, we published a 101), a member of the Asteraceae stating support for, or opposition to, the 90-day finding in the Federal Register (sunflower) family, produces a 0.9- to action under consideration without (74 FR 46542) that the petition 2.4-meter (m) (3- to 8-foot (ft)) single providing supporting information, presented substantial information that stalk covered with succulent leaves. although noted, will not be considered listing Wright’s marsh thistle may be There are two regional varieties of this in making a determination, as section warranted. The 90-day finding stated species. The more eastern populations 4(b)(1)(A) of the Act directs that that the petition provided substantial in the Pecos River valley of New Mexico determinations as to whether any information indicating that listing have pink flowers and dark green foliage species is an endangered or a threatened Wright’s marsh thistle may be with higher plant height, while the more species must be made ‘‘solely on the warranted. At that time, we initiated a western and southern populations in basis of the best scientific and status review of the species. New Mexico (and the previous commercial data available.’’ On February 11, 2010, WildEarth populations in Arizona and Mexico) Guardians filed suit against the Service You may submit your comments and have white or pale pink flowers and for failure to issue a 12-month finding materials concerning this proposed rule pale green foliage (Sivinski 2011, pp. on the petition (WildEarth Guardians v. by one of the methods listed in 27–28). The differences serve as ADDRESSES. We request that you send Salazar, No. 10–cv–00122 BRB–DJS (D.N.M.)). Under a stipulated settlement evidence of ecological adaptability comments only by the methods within the species, and we believe these described in ADDRESSES. agreement, the 12-month finding was due to the Federal Register by October differences represent genetic diversity If you submit information via http:// 31, 2010. On November 4, 2010, after between the eastern and western www.regulations.gov, your entire review of all available scientific and populations. submission—including any personal commercial information, we published a Life History identifying information—will be posted 12-month petition finding (75 FR on the website. If your submission is 67925), in which we found that listing Depending on local environmental made via a hardcopy that includes Wright’s marsh thistle as endangered or conditions, Wright’s marsh thistle can personal identifying information, you threatened throughout its range is display life-history traits of a biennial (a may request at the top of your document warranted, but that listing of the thistle plant completing development in 2 that we withhold this information from was precluded by higher priority actions years, flowering in its second year) or a public review. However, we cannot to amend the Lists of Endangered and guarantee that we will be able to do so. weak monocarpic perennial (a plant that Threatened Wildlife and Plants. As a flowers, sets seed, and then dies). Cross We will post all hardcopy submissions result of the 12-month finding, we on http://www.regulations.gov. pollination is achieved by insect added Wright’s marsh thistle to our pollinators, primarily bees. Like other Comments and materials we receive, candidate species list, with a listing species in the genus Cirsium, Wright’s as well as supporting documentation we priority number of 8, indicating that the marsh thistle produces numerous seeds used in preparing this proposed rule, thistle faced imminent threats that were per flowering plant. After germination, will be available for public inspection of moderate magnitude. Thereafter, we on http://www.regulations.gov. seedlings develop into an intermediate reassessed the status of the species rosette form for most of a year or longer Public Hearing annually and determined that listing the before bolting (producing a stem) and thistle remained warranted but was growing into the mature, flowering Section 4(b)(5) of the Act provides for precluded by higher priority activities plant. It does not reproduce vegetatively a public hearing on this proposal, if under the Act (see 77 FR 69994, (asexually from parent plant). In order requested. Requests must be received by November 21, 2012; 78 FR 70104, to progress through its life cycle, the the date specified in DATES. Such November 22, 2013; 79 FR 72450, thistle requires adequate soil alkalinity, requests must be sent to the address December 5, 2014; 80 FR 80584, shown in FOR FURTHER INFORMATION December 24, 2015; 81 FR 87246, water availability for permanent root CONTACT. We will schedule a public December 2, 2016). saturation, and access to full sunlight. hearing on this proposal, if requested, Specifically, seeds require water- and announce the date, time, and place Supporting Documents saturated soils and access to fairly direct of the hearing, as well as how to obtain A species status assessment (SSA) sunlight for germination. Rosettes also reasonable accommodations, in the team prepared an SSA report for the require water-saturated soils and access Federal Register and local newspapers Wright’s marsh thistle. The SSA team to fairly direct sunlight in order to grow at least 15 days before the hearing. For was composed of Service biologists, in into a mature plant. Mature plants must the immediate future, we will provide consultation with other species experts. also maintain permanent root saturation these public hearings using webinars The SSA report represents a via water-saturated soils and tend to that will be announced on the Service’s compilation of the best scientific and thrive better in full sunlight. For more website, in addition to the Federal commercial data available concerning details of the biology and life history of Register. The use of these virtual public the status of the species, including the Wright’s marsh thistle, please refer to hearings is consistent with our impacts of past, present, and future chapter 2 of the SSA report (USFWS regulation at 50 CFR 424.16(c)(3). factors (both negative and beneficial) 2017).

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Habitat and Distribution 43 ha (106 ac): Santa Rosa, in (B) Overutilization for commercial, Wright’s marsh thistle is a rare Guadalupe County; Bitter Lake National recreational, scientific, or educational wetland species that grows in marshy Wildlife Refuge (NWR), in Chaves purposes; (C) Disease or predation; habitats with year-round, water- County; Blue Spring, in Eddy County; La Luz Canyon, Karr/Haynes Canyon, (D) The inadequacy of existing saturated soils, at elevations between regulatory mechanisms; or 1,150 and 2,390 m (3,450 and 7,850 ft) Silver Springs, and Tularosa Creek, in Otero County; and Alamosa Creek, in (E) Other natural or manmade factors in elevation (Sivinski 1996, p. 1; 2005, affecting its continued existence. pp. 3–4). Wright’s marsh thistle is an Socorro County (Bridge 2001, p. 1; Sivinski and Bleakly 2004, p. 2; These factors represent broad obligate of seeps, springs, and wetlands categories of natural or human-caused that have saturated soils with surface or NMRPTC 2009, p. 1; Sivinski 1994, p. 1; Sivinski 1996, p. 2; Sivinski 2005, p. actions or conditions that could have an subsurface water flow (Sivinski 1996, p. effect on a species’ continued existence. 1; USFWS 1998, p. 2; Worthington 2002, 1, 3–5; Sivinski 2009; USFWS 1998, p. 1; Worthington 2002, p. 1–3). In Otero In evaluating these actions and p. 2; NMRPTC 2009, p. 1). Within those conditions, we look for those that may spring and seep areas, it is usually County, the Sacramento Mountains have four unique populations of the species have a negative effect on individuals of associated with alkaline soils (Sivinski the species, as well as other actions or 2005, p. 3). clustered within about 16 kilometers (km) (10 miles (mi)) of each other on the conditions that may ameliorate any negative effects or may have positive Historical Range west slope of the mountains. The effects. remaining four localities are widely Wright’s marsh thistle was We use the term ‘‘threat’’ to refer in historically known to occur in Arizona disjunct, separated from the Sacramento general to actions or conditions that are and New Mexico in the United States, localities by about 120 to 225 km (75 to known to or are reasonably likely to and Chihuahua and Sonora in Mexico 140 mi) and from each other by about negatively affect individuals of a (Sivinski 2012, p. 2). The single location 120 to 345 km (75 to 215 mi). In the species. The term ‘‘threat’’ includes in Arizona was a historical 1851 Sacramento Mountains, two of these actions or conditions that have a direct collection from San Bernardino Cienega, four localities occur on the Lincoln impact on individuals (direct impacts), which straddles the international border National Forest, one locality is on as well as those that affect individuals with Mexico, and no longer has suitable private land, and the remaining locality through alteration of their habitat or wetland habitat on the Arizona side of is on the Mescalero Apache Reservation. required resources (stressors). The term the border (Baker 2011, p. 7). There In the Pecos River Valley, one locality ‘‘threat’’ may encompass—either were 10 historical occurrences in New is on public lands on Bitter Lake NWR; together or separately—the source of the Mexico; however, in a recent search one is on private land near Blue Springs action or condition or the action or effort at one of the sites (Lake County), and the Black River; and one is in the condition itself. the thistle was not found (Sivinski 2011, vicinity of Santa Rosa on private, However, the mere identification of p. 40), and another of the 10 records municipal, and State lands. The any threat(s) does not necessarily mean (Rattlesnake Springs, Eddy County) is remaining locality is on private land on that the species meets the statutory now thought to be a hybrid between Alamosa Creek, Socorro County. definition of an ‘‘endangered species’’ or Wright’s marsh thistle and the Texas Localities vary in relative population a ‘‘threatened species.’’ In determining thistle (C. texanum) (NMRPTC 2009, p. size from fewer than 20 individuals whether a species meets either 2). Reports of Wright’s marsh thistle covering only about 0.02 ha (0.03 ac) at definition, we must evaluate all from Texas were common (Keil 2006, p. the Silver Springs locality (Sivinski identified threats by considering the 131; Sivinski 1996, pp. 2–4), but in 2012, p. 21), to several thousand expected response by the species, and subsequent examinations of Texas individuals on Bitter Lake NWR, the effects of the threats—in light of specimens purporting to be Wright’s covering almost 9.3 ha (23 ac). those actions and conditions that will marsh thistle, the specimens were found Regulatory and Analytical Framework ameliorate the threats—on an to be Texas thistle or other Cirsium individual, population, and species species (75 FR 67928; November 4, Regulatory Framework level. We evaluate each threat and its 2010). expected effects on the species, then The status of the Wright’s marsh Section 4 of the Act (16 U.S.C. 1533) analyze the cumulative effect of all of thistle in Mexico is presumed and its implementing regulations (50 the threats on the species as a whole. extirpated. There have been few verified CFR part 424) set forth the procedures We also consider the cumulative effect historical collections, and the most for determining whether a species is an of the threats in light of those actions recent site visit to Fronteras, Mexico, ‘‘endangered species’’ or a ‘‘threatened and conditions that will have positive and Cerro Angostura, Mexico, indicated species.’’ The Act defines an effects on the species, such as any that the habitat had been mostly dried endangered species as a species that is existing regulatory mechanisms or out and is no longer suitable (Sivinski ‘‘in danger of extinction throughout all conservation efforts. The Secretary 2017, entire). or a significant portion of its range,’’ and determines whether the species meets Therefore, Wright’s marsh thistle has a threatened species as a species that is the definition of an ‘‘endangered been extirpated from all previously ‘‘likely to become an endangered species’’ or a ‘‘threatened species’’ only known locations in Arizona, two species within the foreseeable future after conducting this cumulative historical locations in New Mexico, and throughout all or a significant portion of analysis and describing the expected all known locations in Mexico, and it its range.’’ The Act requires that we effect on the species now and in the was misidentified and likely not ever determine whether any species is an foreseeable future. present in Texas. ‘‘endangered species’’ or a ‘‘threatened The Act does not define the term species’’ because of any of the following ‘‘foreseeable future,’’ which appears in Current Range factors: the statutory definition of ‘‘threatened In New Mexico, eight general (A) The present or threatened species.’’ Our implementing regulations confirmed locations of Wright’s marsh destruction, modification, or at 50 CFR 424.11(d) set forth a thistle cover an area of approximately curtailment of its habitat or range; framework for evaluating the foreseeable

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future on a case-by-case basis. The term conditions. Using these principles, we have a likelihood of persistence of ‘‘foreseeable future’’ extends only so far identified the species’ ecological approximately 0 to 25 percent over the into the future as the Services can requirements for survival and foreseeable future (75 to 100 percent reasonably determine that both the reproduction at the individual, likelihood of extirpation). future threats and the species’ responses population, and species levels, and For Wright’s marsh thistle to maintain to those threats are likely. In other described the beneficial and risk factors viability, its populations or some words, the foreseeable future is the influencing the species’ viability. portion thereof must be able to period of time in which we can make The SSA process can be categorized withstand stochastic disturbance. reliable predictions. ‘‘Reliable’’ does not into three sequential stages. During the Resource needs that influence the mean ‘‘certain’’; it means sufficient to first stage, we evaluated the individual resiliency of populations include provide a reasonable degree of species’ life-history needs. The next constant soil saturation, alkaline soils, confidence in the prediction. Thus, a stage involved an assessment of the abundance of insect pollinators, and prediction is reliable if it is reasonable historical and current condition of the availability of direct sunlight. to depend on it when making decisions. species’ demographics and habitat Additionally, secondary resource needs It is not always possible or necessary characteristics, including an include agents of seed dispersal (wind, to define foreseeable future as a explanation of how the species arrived water, mammals, and birds), and water particular number of years. Analysis of at its current condition. The final stage availability for seed germination. For the foreseeable future uses the best of the SSA involved making predictions more details on these resource needs scientific and commercial data available about the species’ responses to positive and their impact on species viability, and should consider the timeframes and negative environmental and refer to chapter 2 of the SSA report applicable to the relevant threats and to anthropogenic influences. This process (USFWS 2017). Factors that influence the species’ likely responses to those used the best available information to those resource needs will determine threats in view of its life-history characterize viability as the ability of a whether Wright’s marsh thistle characteristics. Data that are typically species to sustain populations in the populations are able to sustain adequate relevant to assessing the species’ wild over time. We use this information numbers within habitat patches of biological response include species- to inform our regulatory decision. adequate area and quality to maintain specific factors such as lifespan, survival and reproduction in spite of Summary of Biological Status and reproductive rates or productivity, disturbance, thereby increasing the Threats certain behaviors, and other resiliency of populations. demographic factors. In this discussion, we review the Maintaining representation in the biological condition of the species and form of genetic or environmental Analytical Framework its resources, and the threats that diversity is important to maintain The SSA report for Wright’s marsh influence the species’ current and future Wright’s marsh thistle’s capacity to thistle (USFWS 2017) documents the condition, in order to assess the species’ adapt to future environmental changes. results of our comprehensive biological overall viability and the risks to that A healthy community of insect status review for the species, including viability. pollinators, particularly bees and an assessment of the potential threats to To determine the species’ current butterflies, leads to genetic diversity by the species. The SSA report does not condition, we ranked each population the process of cross pollination between represent a decision by the Service on based on six factors relating to patches within a population. The whether the species should be proposed population and habitat variables differences in flower color (and perhaps for listing as an endangered or including habitat quantity, number of differences in mature plant maximum threatened species under the Act. It patches, abundance, reproduction, growth height) represent differences in does, however, provide the scientific permanent root saturation, and full sun. ecological adaptability between the basis that informs our regulatory For each of these six factors, we defined eastern and western populations of the decisions, which involves the further criteria for low, moderate, and high thistle, which may also represent a form application of standards within the Act conditions, which are outlined in table of genetic diversity. There is a need to and its implementing regulations and 3.3 in chapter 3 of the SSA report. These maintain the genetic and environmental policies. criteria were used to determine an diversity between the eastern and To assess Wright’s marsh thistle overall condition for each of the eight western groups, as their potential viability, we used the three conservation extant populations (USFWS 2017). The genetic and life-history attributes may biology principles of resiliency, overall condition of a population refers buffer the thistle’s response to redundancy, and representation (Shaffer to the likelihood of persistence over environmental changes over time. and Stein 2000, pp. 306–310). Briefly, time. We expect a population in high Wright’s marsh thistle has likely lost resiliency supports the ability of the overall condition to have a greater than genetic and environmental diversity as species to withstand environmental and 90 percent likelihood of persistence populations have been reduced or demographic stochasticity (for example, over the foreseeable future (in other extirpated. As such, maintaining the wet or dry, warm or cold years), words a 10 percent or less likelihood of remaining representation in the form of redundancy supports the ability of the extirpation). For a population in genetic and environmental diversity species to withstand catastrophic events moderate condition, we estimate that may be important to the capacity of (for example, droughts, large pollution the likelihood of persistence over the Wright’s marsh thistle to adapt to future events), and representation supports the foreseeable future would be environmental change. ability of the species to adapt over time approximately 66 to 90 percent (10 to 33 Wright’s marsh thistle needs to have to long-term changes in the environment percent likelihood of extirpation). For a multiple resilient populations (for example, climate changes). In population in low condition, we distributed throughout its range to general, the more resilient and estimated a likelihood of persistence of provide for redundancy. The more redundant a species is and the more approximately 25 to 66 percent over the populations, and the wider the representation it has, the more likely it foreseeable future (33 to 75 percent distribution of those populations, the is to sustain populations over time, even likelihood of extirpation) and a more redundancy the species will under changing environmental population in very low condition to exhibit. In addition, populations of the

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species can exhibit internal redundancy availability). A brief summary of these including Wright’s marsh thistle habitat, through the presence of multiple primary stressors is presented below, experienced drought from patches within the population. For followed by a table identifying the approximately April 2011 until mid- example, the eastern populations of particular stressors, and the magnitude 2014. Within New Mexico, monsoonal Wright’s marsh thistle have multiple of those stressors, affecting each of the summer precipitation can be very patches of occupied habitat within each eight populations (Table 1). We also patchy, with some areas receiving population location, while the western include a discussion of current considerably less rainfall than others. populations typically have only one conservation measures for the thistle Newton et al. (2012) provides patch. The presence of multiple patches and any existing regulatory mechanisms information on drought conditions in contributes to the ability of the that may ameliorate or reduce the the range of the species, specifically in population to maintain resiliency when impact of the stressors. For a full the Pecos River valley and Sacramento faced with various risk factors. description of these stressors, refer to Mountains. The three eastern Redundancy reduces the risk that a large chapter 4 of the SSA report (USFWS populations of Wright’s marsh thistle in portion of the species’ range will be 2017). the Pecos River valley have not been negatively affected by a catastrophic Decreased Water Availability natural or anthropogenic event at a affected by drought to the same extent given point in time. Species that are The drying of Wright’s marsh thistle as the western populations, because the well-distributed across their historical habitat over approximately the last 25 Pecos River valley’s marshy habitats are range are considered less susceptible to years has led to shrinking population maintained by large regional aquifers. extinction and have higher viability boundaries, a reduction in the numbers The western populations often rely on than species confined to a small portion of plants, and, in some cases, a loss of wet periods during summer months to of their range (Carroll et al. 2010, entire; all individuals at several localities recharge the ground water. In the Redford et al. 2011, entire). (Sivinski 1996; Sivinski 2005, pp. 3–4; Sacramento Mountains, because these Sivinski 2012). Because the thistle wet periods are extremely rare events Current Condition of Wright’s Marsh occurs only in areas that are water- (Newton et al. 2012, p. 66), drought has Thistle saturated, populations have a high notably impacted the area’s As stated above, the best available potential for extirpation when the groundwater tables (USFS 2008, p. 22). information indicates that Wright’s habitat dries up. Loss of water from For this reason, the seasonal marsh thistle is currently only found in Wright’s marsh thistle habitat occurs distribution of yearly precipitation can eight localities in New Mexico. We through changing precipitation patterns result in temporary drought conditions believe the plant has been extirpated in or drought, or as a result of human and reduced water availability for some Arizona, Mexico, and two locations in impacts from groundwater pumping Wright’s marsh thistle localities within New Mexico, and never occurred in (withdrawal) or diversion of surface this mountain range. Texas. According to our current water, which can lead to the condition rankings outlined in chapter 3 degradation and extirpation of the Wright’s marsh thistle is vulnerable to of the SSA report, of the eight extant species’ habitat (Sivinski 1996, p. 5; reduced water availability because the populations in New Mexico, three have Sivinski 2005, p. 1; USFS 2008, p. 19). species occupies relatively small areas been determined to have moderate In addition to experiencing periods of of spring or seep habitat in an arid resiliency, two have low resiliency, and drought, much of the habitat of Wright’s region that is plagued by drought and three have very low resiliency and are marsh thistle has been and continues to ongoing aquifer withdrawals (e.g., in the at risk of extirpation. We consider the be severely altered and degraded Roswell Basin). If future episodes of thistle to have representation in the because of past and present land and drought increase in frequency, duration, form of genetic and environmental water management practices that have or intensity, additional dewatering and diversity resulting in two distinct led to ground and surface water decrease of the thistle’s habitat are phenotypes in the eastern and western depletion. For specific examples for likely to occur. Projected increases in populations, as described above. Within each population, please refer to chapter temperature and increased variability in the two representation areas (east and 4, section 1 of the SSA report (USFWS precipitation in locations where west), three populations are extant in 2017). All of the extant localities may be Wright’s marsh thistle is currently the east, and five populations are extant affected by long-term drought, whereas located demonstrate the vulnerability of in the west. While there is greater four of the largest localities at Blue the habitat to reductions in water redundancy in terms of number of Spring, Bitter Lake NWR, Santa Rosa, availability. The vulnerability of the populations in the western phenotype, and Alamosa Creek have the potential to habitat to increased drought depends, in the five extant populations in the be further modified by ongoing and large part, on the sources of their water western representation are much future water management practices. supply. Habitats that are sustained smaller in both the area occupied and Drought, along with ground and surface mainly by precipitation in the population size. Therefore, the western water depletion, serve to decrease the Sacramento Mountains (five populations are less resilient. This amount of water available in Wright’s populations) are the most likely to be circumstance impacts the overall marsh thistle habitat, which impacts the affected by increased drought, making viability of the species by reducing the species’ need for permanent root drought a significant stressor to these overall resiliency of the thistle to saturation. Reductions in precipitation stochastic events. and temperature are predicted, which populations. Alternatively, localities suggests that these impacts will increase that are supplied primarily by Influence Factors for Wright’s Marsh in the future, leading to further impacts groundwater in the Pecos River Basin Thistle to the thistle (NOAA 2017). (three populations) will likely have the The largest threats to the future greatest resistance to increased drought viability of Wright’s marsh thistle relate Decreased Water Availability: Drought due to water stored in aquifers, making to habitat degradation from various According to the United States drought a slightly less significant stressors influencing the availability of Drought Monitor (2017), large portions stressor to the populations (e.g., see Poff the thistle’s resource needs (e.g., water (over 30 percent) of New Mexico, et al. 2002, pp. 18–19).

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

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

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TABLE 1—STRESSORS IMPACTING EACH OF THE EIGHT POPULATIONS OF WRIGHT’S MARSH THISTLE [USFWS 2017, chapter 4]

Stressors to population Decreased water availability Population Groundwater Livestock Native and Oil and gas and surface Effects of grazing nonnative development Drought water climate plants depletion change

Eastern Populations

Santa Rosa Basin ...... XX XX XX XXX XX X Bitter Lake NWR ...... XX XX XX ...... XX XX Blue Spring ...... XX XXX XX XX X XX

Western Populations

Alamosa Springs ...... XXX XX XX X ...... X Tularosa Creek ...... XXX XX XX ...... X ...... Silver Springs ...... XXX XXX XX X ...... La Luz Canyon ...... XXX XXX XX X ...... Karr/Haynes Canyon ...... XXX XXX XX X X ...... Note: XXX indicates a significant stressor to the population, XX indicates a moderate stressor to the population, and X indicates a mild stressor to the population.

Conservation Measures and Regulatory with the States). Thus, the Federal for this type of analysis. These four Mechanisms protection afforded to this plant by scenarios incorporate the best available Minimal conservation of Wright’s listing it as an endangered or threatened information on projection of threat data marsh thistle is occurring on the Federal species would be reinforced and up to 50 years in the future. Sources of level. The Bitter Lake NWR manages supplemented by protection under State data include, but are not limited to, invasive reeds in their moist soil/ law. In addition to the state endangered development (urban, agricultural, oil wetland units where the species is listing for Wright’s marsh thistle, some and gas and mining) plans for various located. This management helps protection is offered to the species areas and climate change models. For increase sunlight availability and through Title 19 of the New Mexico example, we referenced the City of decrease competition with nonnative Administrative Code at chapter 15, part Alamogordo’s 50-year development plan species. The NWR also recently received 2 (19 NMAC 15.2) which outlines for projections of future water a grant to complete seed collection general environmental provisions for withdrawals. In regards to climate efforts for Wright’s marsh thistle. The water and wildlife relating to oil and gas change models, we used a moderate Lincoln National Forest does not have operations including information on emissions climate change scenario of active conservation for the thistle, but methods to reduce risk of contamination RCP 4.5 from the 2017 U.S. Climate implements a 61-m (200-ft) buffer to the surrounding habitat. While this Resilience Toolkit, which provides a around occupied sites when projects reduces the risks associated with oil and range of projections for temperature and occur within or near occupied areas. gas production to nearby occupied precipitation through 2100 (NOAA At the State level, Wright’s marsh locations of the thistle, the high volume 2017). We also used the U.S. Geological thistle is listed as endangered, under the of oil and gas leases near these sites Survey’s Monthly Water Balance Model authority of the New Mexico Statutes means the risk of impacts from a spill Futures Portal that provides projections Annotated 1978, at title 19 of the New still persist. out to the year 2095 for changes in Mexico Administrative Code at chapter evapotranspiration (USGS 2017, entire). Future Scenarios Considered 21, part 2, section 9 (19 NMAC 21.2.9). Some, but not all, of the threats could The provisions in New Mexico state law As there are a range of possibilities be projected beyond 50 years into the prohibit the taking of endangered plants regarding the intensity of stressors (i.e., future. Therefore, to develop our future on all lands of New Mexico (except decreased water availability to habitat, scenarios, we only used projection tribal lands), except under valid permit ungulate grazing, native and nonnative information up to 50-years into the issued by the State, and encourage plants, oil and gas development, and future, the timeframe that includes conservation by State government mining) acting on the populations, we projections for all future threats and for agencies. In this instance, ‘‘taking’’ forecast Wright’s marsh thistle’s which we could predict the expected means the removal, with the intent to resiliency, representation, and future resiliency and overall condition possess, transport, export, sell, or offer redundancy under four plausible for each population based on our for sale. Further, if Wright’s marsh scenarios in the SSA report. For these knowledge of the species’ expected thistle is listed under the Act, the State scenarios, we considered four different response to identified threats. may enter into agreements with Federal trajectories for all threats acting on the First, the ‘‘Continuing Current agencies to administer and manage any species (i.e., all threats increasing at two Conditions’’ scenario projects the area required for the conservation, different rates, decreasing, or remaining condition of Wright’s marsh thistle management, enhancement, or at the current level). We did not look at populations if the current risks to protection of listed species. Funds for interactions between threats (i.e., one population viability continue with the these activities could be made available threat increasing with another threat same trajectory as experienced under section 6 of the Act (Cooperation decreasing), as data were not sufficient currently. Decreased water availability

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

TABLE 2—CONDITION RATINGS FOR EACH OF THE EIGHT POPULATIONS OF WRIGHT’S MARSH THISTLE UNDER FOUR POSSIBLE FUTURE SCENARIOS [USFWS 2017, Chapter 5]

Scenario 1: Population Current condition Continuing current Scenario 2: Scenario 3: Scenario 4: conditions Optimistic Major effects Severe effects

Eastern Populations

Santa Rosa Basin ...... Moderate ...... Moderate ...... High ...... Moderate ...... Low. Bitter Lake NWR ...... Moderate ...... Moderate ...... High ...... Moderate ...... Low. Blue Spring ...... Moderate ...... Low ...... Moderate ...... Low ...... Low.

Western Populations

Alamosa Springs ...... Low ...... Low ...... Low ...... Very Low ...... Extirpated. Tularosa Creek ...... Very Low ...... Extirpated ...... Very Low ...... Extirpated ...... Extirpated. Silver Springs ...... Very Low ...... Very Low ...... Very Low ...... Extirpated ...... Extirpated. La Luz Canyon ...... Very Low ...... Very Low ...... Very Low ...... Extirpated ...... Extirpated. Karr/Haynes Canyon ...... Low ...... Low ...... Low ...... Low ...... Extirpated.

We note that, by using the SSA influencing the species, including or a threatened species. The Act defines framework to guide our analysis of the threats and conservation efforts. ‘‘endangered species’’ as a species ‘‘in scientific information documented in Because the SSA framework considers danger of extinction throughout all or a the SSA report, we have not only not just the presence of the factors, but significant portion of its range,’’ and analyzed individual effects on the to what degree they collectively ‘‘threatened species’’ as a species ‘‘likely species, but we have also analyzed their influence risk to the entire species, our to become an endangered species within potential cumulative effects. We assessment integrates the cumulative the foreseeable future throughout all or incorporate the cumulative effects into effects of the factors and replaces a a significant portion of its range.’’ The our SSA analysis when we characterize standalone cumulative effects analysis. Act requires that we determine whether the current and future condition of the a species meets the definition of species. Our assessment of the current Determination of the Status of Wright’s ‘‘endangered species’’ or ‘‘threatened and future conditions encompasses and Marsh Thistle species’’ because of any of the following incorporates the threats individually Section 4 of the Act (16 U.S.C. 1533), factors: (A) The present or threatened and cumulatively. Our current and and its implementing regulations (50 destruction, modification, or future condition assessment is iterative CFR part 424) set forth the procedures curtailment of its habitat or range; (B) because it accumulates and evaluates for determining whether a species meets overutilization for commercial, the effects of all the factors that may be the definition of an endangered species recreational, scientific, or educational

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

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foreseeable future, throughout all of its Wright’s marsh thistle was determined The primary purpose of the Act is the range. to have some level of impact from each conservation of endangered and threat listed above, with variations in threatened species and the ecosystems Status Throughout a Significant Portion source and intensity. For example, upon which they depend. The ultimate of Its Range habitat degradation due to decreased goal of such conservation efforts is the Under the Act and our implementing water availability at the Santa Rosa recovery of these listed species, so that regulations, a species may warrant population location is influenced by they no longer need the protective listing if it is in danger of extinction or agricultural use, while the La Luz measures of the Act. Subsection 4(f) of likely to become so in the foreseeable Canyon population location is the Act calls for the Service to develop future throughout all or a significant influenced primarily by municipal use. and implement recovery plans for the portion of its range. The court in Center In another example, livestock grazing conservation of endangered and for Biological Diversity v. Everson, 2020 tends to be present with greater threatened species. The recovery WL 437289 (D.D.C. Jan. 28, 2020) intensity near the Santa Rosa population planning process involves the (Center for Biological Diversity), vacated location than near the La Luz Canyon identification of actions that are the aspect of the 2014 Significant population location. While there may be necessary to halt or reverse the species’ Portion of its Range Policy that provided some variation in the source and decline by addressing the threats to its that the Services do not undertake an intensity of each individual threat at survival and recovery. The goal of this analysis of significant portions of a each population location, we found no process is to restore listed species to a species’ range if the species warrants concentration of threats in any portion point where they are secure, self- listing as threatened throughout all of its of Wright’s marsh thistle’s range at a sustaining, and functioning components range. Therefore, we proceed to biologically meaningful scale. Thus, of their ecosystems. evaluating whether the species is there are no portions of the species’ Recovery planning includes the endangered in a significant portion of its range where the species has a different development of a recovery outline range—that is, whether there is any status from its rangewide status. shortly after a species is listed and portion of the species’ range for which subsequent preparation of a draft and Therefore, no portion of the species’ both (1) the portion is significant; and, final recovery plan. The recovery range provides a basis for determining (2) the species is in danger of extinction outline guides the immediate that the species is in danger of in that portion. Depending on the case, implementation of urgent recovery extinction in a significant portion of its it might be more efficient for us to actions and describes the process to be range, and we determine that the address the ‘‘significance’’ question or used to develop a recovery plan. species is likely to become in danger of the ‘‘status’’ question first. We can Revisions of the plan may be done to extinction within the foreseeable future choose to address either question first. address continuing or new threats to the throughout all of its range. This is Regardless of which question we species, as new substantive information consistent with the courts’ holdings in address first, if we reach a negative becomes available. The recovery plan answer with respect to the first question Desert Survivors v. Department of the also identifies recovery criteria for that we address, we do not need to Interior, No. 16–cv–01165–JCS, 2018 review of when a species may be ready evaluate the other question for that WL 4053447 (N.D. Cal. Aug. 24, 2018), for reclassification from endangered to portion of the species’ range. and Center for Biological Diversity v. threatened (‘‘downlisting’’) or for Following the court’s holding in Jewell, 248 F. Supp. 3d, 946, 959 (D. removal from protected status Center for Biological Diversity, we now Ariz. 2017). (‘‘delisting’’), and methods for consider whether there are any Determination of Status monitoring recovery progress. Recovery significant portions of the species’ range plans also establish a framework for where the species is in danger of Our review of the best available agencies to coordinate their recovery extinction now (i.e., endangered). In scientific and commercial information efforts and provide estimates of the cost undertaking this analysis for Wright’s indicates that Wright’s marsh thistle of implementing recovery tasks. marsh thistle, we choose to address the meets the definition of a threatened Recovery teams (composed of species status question first—we consider species. Therefore, we propose to list experts, Federal and State agencies, information pertaining to the geographic Wright’s marsh thistle as a threatened nongovernmental organizations, and distribution of both the species and the species in accordance with sections stakeholders) are often established to threats that the species faces to identify 3(20) and 4(a)(1) of the Act. develop recovery plans. When any portions of the range where the Available Conservation Measures completed, the recovery outline, draft species is endangered. recovery plan, and the final recovery For Wright’s marsh thistle, we Conservation measures provided to plan will be available on our website considered whether the threats are species listed as endangered or (http://www.fws.gov/endangered). geographically concentrated in any threatened under the Act include Implementation of recovery actions portion of the species’ range at a recognition, recovery actions, generally requires the participation of a biologically meaningful scale. In light of requirements for Federal protection, and broad range of partners, including other the species’ needs (i.e., permanent root prohibitions against certain practices. Federal agencies, States, Tribes, saturation; alkaline soils; full, direct, or Recognition through listing results in nongovernmental organizations, nearly full sunlight; and abundant public awareness and conservation by businesses, and private landowners. pollinators), we examined the following Federal, State, Tribal, and local Examples of recovery actions include threats (including cumulative threats): agencies; private organizations; and habitat restoration (e.g., restoration of Habitat degradation due to decreased individuals. The Act encourages native vegetation), research, captive water availability, livestock grazing, cooperation with the States and other propagation and reintroduction, and native and non-native plants, and oil countries and calls for recovery actions outreach and education. The recovery of and gas development and mining; to be carried out for listed species. The many listed species cannot be continued drought and the effects of protection required by Federal agencies accomplished solely on Federal lands climate change; and small, isolated and the prohibitions against certain because their range may occur primarily populations. Each population of activities are discussed, in part, below. or solely on non-Federal lands. To

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achieve recovery of these species maintenance of roads or highways by U.S. Dist. Lexis 5432 (W.D. Wash. requires cooperative conservation efforts the Federal Highway Administration. 2002)). Courts have also upheld 4(d) on private, State, and Tribal lands. It is our policy, as published in the rules that do not address all of the If this species is listed, funding for Federal Register on July 1, 1994 (59 FR threats a species faces (see State of recovery actions will be available from 34272), to identify to the maximum Louisiana v. Verity, 853 F.2d 322 (5th a variety of sources, including Federal extent practicable at the time a species Cir. 1988)). As noted in the legislative budgets, State programs, and cost share is listed, those activities that would or history when the Act was initially grants for non-Federal landowners, the would not constitute a violation of enacted, ‘‘once an animal is on the academic community, and section 9 of the Act. The intent of this threatened list, the Secretary has an nongovernmental organizations. In policy is to increase public awareness of almost infinite number of options addition, pursuant to section 6 of the the effect of a proposed listing on available to him with regard to the Act, the State of New Mexico would be proposed and ongoing activities within permitted activities for those species. He eligible for Federal funds to implement the range of the species proposed for may, for example, permit taking, but not management actions that promote the listing. The discussion below regarding importation of such species, or he may protection or recovery of Wright’s marsh protective regulations under section 4(d) choose to forbid both taking and thistle. Information on our grant of the Act complies with our policy. importation but allow the transportation programs that are available to aid of such species’’ (H.R. Rep. No. 412, species recovery can be found at: http:// II. Proposed Rule Issued Under Section 93rd Cong., 1st Sess. 1973). www.fws.gov/grants. 4(d) of the Act Exercising its authority under section Although Wright’s marsh thistle is Background 4(d), the Service has developed a only proposed for listing under the Act proposed rule that is designed to Section 4(d) of the Act contains two at this time, please let us know if you address Wright’s marsh thistle’s specific sentences. The first sentence states that are interested in participating in threats and conservation needs. the ‘‘Secretary shall issue such recovery efforts for this species. Although the statute does not require regulations as he deems necessary and Additionally, we invite you to submit the Service to make a ‘‘necessary and any new information on this species advisable to provide for the advisable’’ finding with respect to the whenever it becomes available and any conservation’’ of species listed as adoption of specific prohibitions under information you may have for recovery threatened. The U.S. Supreme Court has section 9, we find that this rule as a planning purposes (see FOR FURTHER noted that statutory language like whole satisfies the requirement in INFORMATION CONTACT). ‘‘necessary and advisable’’ demonstrates section 4(d) of the Act to issue Section 7(a) of the Act requires a large degree of deference to the agency regulations deemed necessary and Federal agencies to evaluate their (see Webster v. Doe, 486 U.S. 592 advisable to provide for the actions with respect to any species that (1988)). Conservation is defined in the conservation of the Wright’s marsh is proposed or listed as an endangered Act to mean ‘‘the use of all methods and thistle. As discussed above under or threatened species and with respect procedures which are necessary to bring Summary of Biological Status and to its critical habitat, if any is any endangered species or threatened Threats, the Service has concluded that designated. Regulations implementing species to the point at which the Wright’s marsh thistle is likely to this interagency cooperation provision measures provided pursuant to [the Act] become in danger of extinction within of the Act are codified at 50 CFR part are no longer necessary.’’ Additionally, the foreseeable future primarily due to 402. Section 7(a)(4) of the Act requires the second sentence of section 4(d) of habitat loss and modification. The Federal agencies to confer with the the Act states that the Secretary ‘‘may by provisions of this proposed 4(d) rule Service on any action that is likely to regulation prohibit with respect to any would promote conservation of the jeopardize the continued existence of a threatened species any act prohibited species by encouraging management of species proposed for listing or result in under section 9(a)(1), in the case of fish the landscape in ways that meet destruction or adverse modification of or wildlife, or section 9(a)(2), in the case landowner’s management priorities proposed critical habitat. If a species is of plants.’’ Thus, the combination of the while providing for the conservation listed subsequently, section 7(a)(2) of two sentences of section 4(d) provides needs of Wright’s marsh thistle. The the Act requires Federal agencies to the Secretary with wide latitude of provisions of this proposed rule are one ensure that activities they authorize, discretion to select and promulgate of many tools that the Service would fund, or carry out are not likely to appropriate regulations tailored to the use to promote the conservation of the jeopardize the continued existence of specific conservation needs of the Wright’s marsh thistle. This proposed the species or destroy or adversely threatened species. The second sentence 4(d) rule would apply only if and when modify its critical habitat. If a Federal grants particularly broad discretion to the Service makes final the listing of action may affect a listed species or its the Service when adopting the Wright’s marsh thistle as a threatened critical habitat, the responsible Federal prohibitions under section 9. species. agency must enter into consultation The courts have recognized the extent with the Service. of the Secretary’s discretion under this Provisions of the Proposed 4(d) Rule Federal agency actions within the standard to develop rules that are This proposed 4(d) rule would species’ habitat that may require appropriate for the conservation of a provide for the conservation of Wright’s conference or consultation or both as species. For example, courts have marsh thistle by prohibiting, except as described in the preceding paragraph upheld rules developed under section otherwise authorized or permitted, any include management and any other 4(d) as a valid exercise of agency person subject to the jurisdiction of the landscape-altering activities on Federal authority where they prohibited take of United States from the following: lands administered by the U.S. Fish and threatened wildlife, or include a limited Removing and reducing to possession Wildlife Service and U.S. Forest taking prohibition (see Alsea Valley the species from areas under Federal Service; issuance of section 404 Clean Alliance v. Lautenbacher, 2007 U.S. jurisdiction; maliciously damaging or Water Act (33 U.S.C. 1251 et seq.) Dist. Lexis 60203 (D. Or. 2007); destroying the species on any area permits by the U.S. Army Corps of Washington Environmental Council v. under Federal jurisdiction; or removing, Engineers; and construction and National Marine Fisheries Service, 2002 cutting, digging up, or damaging or

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destroying the species on any area otherwise.’’ Under 50 CFR 17.12, with III. Proposed Designation of Critical under Federal jurisdiction in knowing regard to threatened plants, a permit Habitat violation of any law or regulation of any may be issued for the following Background State or in the course of any violation purposes: Scientific purposes, to of a State criminal trespass law. Almost enhance propagation or survival, for Critical habitat is defined in section 3 of the Act as: 30 percent of occupied Wright’s marsh economic hardship, for botanical or thistle habitat is on Federal land. (1) The specific areas within the horticultural exhibition, for educational geographical area occupied by the As discussed in the Summary of purposes, or other purposes consistent Biological Status and Threats (above), species, at the time it is listed in with the purposes of the Act. Additional habitat loss and modification are accordance with the Act, on which are statutory exemptions from the affecting the viability of Wright’s marsh found those physical or biological thistle. A range of activities that occur prohibitions are found in sections 9 and features. on Federal land have the potential to 10 of the Act. (a) Essential to the conservation of the impact the thistle, including changes in The Service recognizes the special species, and water availability, ungulate grazing, and and unique relationship with our state (b) Which may require special oil and gas development. The regulation natural resource agency partners in management considerations or of these activities through this 4(d) rule contributing to conservation of listed protection; and (2) Specific areas outside the would help enhance the conservation of species. State agencies often possess geographical area occupied by the Wright’s marsh thistle by preserving the scientific data and valuable expertise on species’ remaining populations on species at the time it is listed, upon a the status and distribution of determination that such areas are Federal lands and decrease synergistic, endangered, threatened, and candidate negative effects from other stressors. As essential for the conservation of the species of wildlife and plants. State species. a whole, the proposed 4(d) rule would agencies, because of their authorities help in the efforts to recover the species. Our regulations at 50 CFR 424.02 and their close working relationships We may issue permits to carry out define the geographical area occupied otherwise prohibited activities, with local governments and by the species as an area that may including those described above, landowners, are in a unique position to generally be delineated around species’ involving threatened plants under assist the Services in implementing all occurrences, as determined by the certain circumstances. Regulations aspects of the Act. In this regard, section Secretary (i.e., range). Such areas may governing permits for threatened plants 6 of the Act provides that the Services include those areas used throughout all are codified at 50 CFR 17.72, which shall cooperate to the maximum extent or part of the species’ life cycle, even if states that ‘‘the Director may issue a practicable with the States in carrying not used on a regular basis (e.g., permit authorizing any activity out programs authorized by the Act. migratory corridors, seasonal habitats, otherwise prohibited with regard to Therefore, any qualified employee or and habitats used periodically, but not threatened species.’’ That regulation agent of a State conservation agency solely by vagrant individuals). also states, ‘‘The permit shall be which is a party to a cooperative Conservation, as defined under governed by the provisions of this agreement with the Service in section 3 of the Act, means to use and section unless a special rule applicable accordance with section 6(c) of the Act, the use of all methods and procedures to the plan is provided in sections 17.73 who is designated by his or her agency that are necessary to bring an endangered or threatened species to the to 17.78.’’ We interpret that second for such purposes, would be able to point at which the measures provided sentence to mean that permits for conduct activities designed to conserve pursuant to the Act are no longer threatened species are governed by the Wright’s marsh thistle that may result in provisions of section 17.72 unless a necessary. Such methods and otherwise prohibited activities without special rule provides otherwise. We procedures include, but are not limited additional authorization. recently promulgated revisions to to, all activities associated with section 17.71 providing that section Nothing in this proposed 4(d) rule scientific resources management such as 17.71 will no longer apply to plants would change in any way the recovery research, census, law enforcement, listed as threatened in the future. We planning provisions of section 4(f) of the habitat acquisition and maintenance, did not intend for those revisions to Act, the consultation requirements propagation, live trapping, and limit or alter the applicability of the under section 7 of the Act, or the ability transplantation, and, in the permitting provisions in section 17.72, of the Service to enter into partnerships extraordinary case where population or to require that every special rule spell for the management and protection of pressures within a given ecosystem out any permitting provisions that apply Wright’s marsh thistle. However, cannot be otherwise relieved, may to that species and special rule. To the interagency cooperation may be further include regulated taking. contrary, we anticipate that permitting streamlined through planned Critical habitat receives protection provisions would generally be similar or programmatic consultations for the under section 7 of the Act through the requirement that Federal agencies identical for most species, so applying species between Federal agencies and the provisions of section 17.72 unless a ensure, in consultation with the Service, the Service, where appropriate. We ask special rule provides otherwise would that any action they authorize, fund, or the public, particularly State agencies likely avoid substantial duplication. carry out is not likely to result in the Moreover, this interpretation brings and other interested stakeholders that destruction or adverse modification of section 17.72 in line with the may be affected by the proposed 4(d) critical habitat. The designation of comparable provision for wildlife at 50 rule, to provide comments and critical habitat does not affect land CFR 17.32, in which the second suggestions regarding additional ownership or establish a refuge, sentence states, ‘‘Such permit shall be guidance and methods that the Service wilderness, reserve, preserve, or other governed by the provisions of this could provide or use, respectively, to conservation area. Such designation section unless a special rule applicable streamline the implementation of this does not allow the government or public to the wildlife, appearing in sections proposed 4(d) rule (see Information to access private lands. Such 17.40 to 17.48, of this part provides Requested, above). designation does not require

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implementation of restoration, recovery, geographical areas occupied by the Conservation actions implemented or enhancement measures by non- species would be inadequate to ensure under section 7(a)(1) of the Act; (2) Federal landowners. Where a landowner the conservation of the species. In regulatory protections afforded by the requests Federal agency funding or addition, for an unoccupied area to be requirement in section 7(a)(2) of the Act authorization for an action that may considered essential, the Secretary must for Federal agencies to ensure their affect a listed species or critical habitat, determine that there is a reasonable actions are not likely to jeopardize the the Federal agency would be required to certainty both that the area will continued existence of any endangered consult with the Service under section contribute to the conservation of the or threatened species; and, (3) the Act’s 7(a)(2) of the Act. However, even if the species and that the area contains one prohibitions on certain actions that may Service were to conclude that the or more of those physical or biological affect the species or its habitat. proposed activity would result in features essential to the conservation of Federally funded or permitted projects destruction or adverse modification of the species. affecting listed species outside their the critical habitat, the Federal action Section 4 of the Act requires that we designated critical habitat areas may agency and the landowner are not designate critical habitat on the basis of still result in jeopardy findings in some required to abandon the proposed the best scientific data available. cases. These protections and activity, or to restore or recover the Further, our Policy on Information conservation tools will continue to species; instead, they must implement Standards Under the Endangered contribute to recovery of this species. ‘‘reasonable and prudent alternatives’’ Species Act (published in the Federal Similarly, critical habitat designations to avoid destruction or adverse Register on July 1, 1994 (59 FR 34271)), made on the basis of the best available modification of critical habitat. the Information Quality Act (section 515 information at the time of designation Under the first prong of the Act’s of the Treasury and General will not control the direction and definition of critical habitat, areas Government Appropriations Act for substance of future recovery plans, within the geographical area occupied Fiscal Year 2001 (Pub. L. 106–554; H.R. habitat conservation plans, or other by the species at the time it was listed 5658)), and our associated Information species conservation planning efforts if are included in a critical habitat Quality Guidelines, provide criteria, new information available at the time of designation if they contain physical or establish procedures, and provide these planning efforts calls for a biological features (1) which are guidance to ensure that our decisions different outcome. essential to the conservation of the are based on the best scientific data species and (2) which may require available. They require our biologists, to Prudency Determination special management considerations or the extent consistent with the Act and Section 4(a)(3) of the Act, as protection. For these areas, critical with the use of the best scientific data amended, and implementing regulations habitat designations identify, to the available, to use primary and original (50 CFR 424.12), require that, to the extent known using the best scientific sources of information as the basis for maximum extent prudent and and commercial data available, those recommendations to designate critical determinable, the Secretary shall physical or biological features that are habitat. designate critical habitat at the time the essential to the conservation of the When we are determining which areas species is determined to be an species (such as space, food, cover, and should be designated as critical habitat, endangered or threatened species. Our protected habitat). In identifying those our primary source of information is regulations (50 CFR 424.12(a)(1)) state physical or biological features that occur generally the information from the SSA that the Secretary may, but is not in specific areas, we focus on the report and information developed required to, determine that a specific features that are essential to during the listing process for the designation would not be prudent in the support the life-history needs of the species. Additional information sources following circumstances: species, including, but not limited to, may include any generalized (i) The species is threatened by taking water characteristics, soil type, conservation strategy, criteria, or outline or other human activity and geological features, prey, vegetation, that may have been developed for the identification of critical habitat can be symbiotic species, or other features. A species; the recovery plan for the expected to increase the degree of such feature may be a single habitat species; articles in peer-reviewed threat to the species; characteristic, or a more complex journals; conservation plans developed (ii) The present or threatened combination of habitat characteristics. by States and counties; scientific status destruction, modification, or Features may include habitat surveys and studies; biological curtailment of a species’ habitat or range characteristics that support ephemeral assessments; other unpublished is not a threat to the species, or threats or dynamic habitat conditions. Features materials; or experts’ opinions or to the species’ habitat stem solely from may also be expressed in terms relating personal knowledge. causes that cannot be addressed through to principles of conservation biology, Habitat is dynamic, and species may management actions resulting from such as patch size, distribution move from one area to another over consultations under section 7(a)(2) of distances, and connectivity. time. We recognize that critical habitat the Act; Under the second prong of the Act’s designated at a particular point in time (iii) Areas within the jurisdiction of definition of critical habitat, we can may not include all of the habitat areas the United States provide no more than designate critical habitat in areas that we may later determine are negligible conservation value, if any, for outside the geographical area occupied necessary for the recovery of the a species occurring primarily outside by the species at the time it is listed, species. For these reasons, a critical the jurisdiction of the United States; upon a determination that such areas habitat designation does not signal that (iv) No areas meet the definition of are essential for the conservation of the habitat outside the designated area is critical habitat; or species. When designating critical unimportant or may not be needed for (v) The Secretary otherwise habitat, the Secretary will first evaluate recovery of the species. Areas that are determines that designation of critical areas occupied by the species. The important to the conservation of the habitat would not be prudent based on Secretary will only consider unoccupied species, both inside and outside the the best scientific data available. areas to be essential where a critical critical habitat designation, will As discussed earlier in this document, habitat designation limited to continue to be subject to: (1) there is currently no imminent threat of

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collection or vandalism identified under 424.02 define ‘‘physical or biological habitat should include seeps, springs, Factor B for this species, and features essential to the conservation of cienegas, and streams spreading water identification and mapping of critical the species’’ as the features that occur in normally both above and below ground, habitat is not expected to initiate any specific areas and that are essential to with surface or subsurface water flow. such threat. In our SSA and proposed support the life-history needs of the The water present in this habitat should listing determination for Wright’s marsh species, including, but not limited to, be sufficient to allow for permanent root thistle, we determined that the present water characteristics, soil type, saturation of Wright’s marsh thistle in or threatened destruction, modification, geological features, sites, prey, order to provide conditions needed for or curtailment of habitat or range is a vegetation, symbiotic species, or other successful reproduction and survival. threat to Wright’s marsh thistle and that features. A feature may be a single Alkaline soils are required by all four those threats in some way can be habitat characteristic or a more complex life stages of Wright’s marsh thistle’s life addressed by section 7(a)(2) combination of habitat characteristics. cycle: Seeds, seedlings, rosettes, and consultation measures. The species Features may include habitat mature plants. These soils are typically occurs wholly in the jurisdiction of the characteristics that support ephemeral found associated with alkaline springs United States, and we are able to or dynamic habitat conditions. Features and seeps ranging from low desert up to identify areas that meet the definition of may also be expressed in terms relating ponderosa pine forest. Often, water may critical habitat. Therefore, because none to principles of conservation biology, be available on the landscape in a of the circumstances enumerated in our such as patch size, distribution variety of riparian areas; however, regulations at 50 CFR 424.12(a)(1) has distances, and connectivity. For without the presence of alkaline soils in been met and because there are no other example, physical features essential to conjunction with water availability, circumstances the Secretary has the conservation of the species might Wright’s marsh thistle is unlikely to identified for which this designation of include gravel of a particular size maintain viability. critical habitat would be not prudent, required for spawning, alkali soil for Full sunlight is necessary for we have determined that the seed germination, protective cover for development of rosettes into mature designation of critical habitat is prudent migration, or susceptibility to flooding plants, as well as the survival of mature for Wright’s marsh thistle. or fire that maintains necessary early- plants. Optimal habitat includes areas successional habitat characteristics. Critical Habitat Determinability which provide access to sufficient Biological features might include prey sunlight exposure with no obstructions Having determined that designation is species, forage grasses, specific kinds or of sunlight during most life stages of prudent, under section 4(a)(3) of the Act ages of trees for roosting or nesting, Wright’s marsh thistle. These areas we must find whether critical habitat for symbiotic fungi, or a particular level of should not have dense vegetative cover, Wright’s marsh thistle is determinable. nonnative species consistent with which creates competition for sunlight Our regulations at 50 CFR 424.12(a)(2) conservation needs of the listed species. and can negatively impact maturation state that critical habitat is not The features may also be combinations and flowering of the thistle. determinable when one or both of the of habitat characteristics and may following situations exist: encompass the relationship between Sites for Breeding, Reproduction, or (i) Data sufficient to perform required characteristics or the necessary amount Rearing (or Development) of Offspring analyses are lacking, or of a characteristic needed to support the (ii) The biological needs of the species Diverse native floral communities are life history of the species. necessary to attract pollinators in order are not sufficiently well known to In considering whether features are identify any area that meets the to complete cross pollination of essential to the conservation of the Wright’s marsh thistle plants. These definition of ‘‘critical habitat.’’ species, the Service may consider an When critical habitat is not communities vary depending on appropriate quality, quantity, and location but may include bulrush determinable, the Act allows the Service spatial and temporal arrangement of an additional year to publish a critical (Scirpus spp.), beaked spikerush habitat characteristics in the context of (Eleocharis rostellata), Pecos sunflower habitat designation (16 U.S.C. the life-history needs, condition, and 1533(b)(6)(C)(ii)). (Helianthus paradoxus), rush (Juncus status of the species. These spp.), cattail (Typha spp.), and other We reviewed the available characteristics include, but are not information pertaining to the biological native flowering plants (Sivinski 1996, limited to: pp. 2–4). Many generalist pollinators needs of the species and habitat (1) Space for individual and may visit Wright’s marsh thistle characteristics where this species is population growth and for normal (Sivinski 2017, entire). The most located. This and other information behavior; represent the best scientific data (2) Food, water, air, light, minerals, or common pollinators of the thistle are available and led us to conclude that the other nutritional or physiological bees, especially bumble bees (Bombus designation of critical habitat is requirements; spp.) (Sivinski 2017, entire). A diverse determinable for Wright’s marsh thistle. (3) Cover or shelter; native floral community ensures sufficient pollinators to promote cross Physical or Biological Features (4) Sites for breeding, reproduction, or rearing (or development) of offspring; pollination within and among patches In accordance with section 3(5)(A)(i) and of Wright’s marsh thistle. of the Act and regulations at 50 CFR (5) Habitats that are protected from Summary of Essential Physical or 424.12(b), in determining which areas disturbance. Biological Features within the geographical area occupied by the species at the time of listing to Food, Water, Air, Light, Minerals, or We derive the specific physical or designate as critical habitat, we consider Other Nutritional or Physiological biological features essential to the the physical or biological features that Requirements conservation of Wright’s marsh thistle are essential to the conservation of the Water availability is a requirement for from studies of the species’ habitat, species and which may require special three of the four life stages of Wright’s ecology, and life history as described management considerations or marsh thistle’s life cycle: Seedlings, below. Additional information can be protection. The regulations at 50 CFR rosettes, and mature plants. Optimal found in the SSA report (USFWS 2017,

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p. 39) available on http:// watershed/wetland restoration efforts; (4) Information from the U.S. Forest www.regulations.gov under Docket No. and (6) efforts to restore a diverse floral Service and other cooperators; FWS–R2–ES–2018–0071). We have community sufficient to attract (5) Information from species experts; determined that the following physical pollinators. (6) Data and information presented in or biological features are essential to the These management activities would academic research theses; and conservation of Wright’s marsh thistle: protect the physical or biological • Water-saturated soils with surface features for Wright’s marsh thistle by (7) Regional Geographic Information or subsurface water flow that allows providing for surface or subsurface System (GIS) data (such as species permanent root saturation and seed water flow for permanent root occurrence data, land use, topography, germination; saturation, soil alkalinity necessary for aerial imagery, soil data, wetland data, • Alkaline soils; all life stages, the availability of direct and land ownership maps) for area • Full sunlight; and calculations and mapping. • sunlight for plant development, and Diverse floral communities to habitat for pollinators to complete cross attract pollinators. Areas Occupied at the Time of Listing pollination of the thistle. Additionally, Special Management Considerations or management of critical habitat lands The proposed critical habitat Protection would help limit the impacts of current designation includes currently occupied risks to population viability. sites within the species’ historical range When designating critical habitat, we that have retained the necessary assess whether the specific areas within Criteria Used To Identify Critical physical and biological features that the geographical area occupied by the Habitat will allow for the maintenance and species at the time of listing contain expansion of existing populations. features which are essential to the As required by section 4(b)(2) of the Act, we use the best scientific and Wright’s marsh thistle was historically conservation of the species and which known to occur in an additional site in may require special management commercial data available to designate Arizona (Sivinski 2012, p. 2). The single considerations or protection. As critical habitat. In accordance with the location in Arizona was collected in mentioned above, in the case of Wright’s Act and our implementing regulations at 1851 from San Bernardino Cienega, marsh thistle, these features include 50 CFR 424.12(b), we review available which straddles the international border water-saturated soils with surface or information pertaining to the habitat with Mexico; the location no longer has subsurface water flow that allows requirements of the species and identify suitable wetland habitat on the Arizona permanent root saturation and seed specific areas within the geographical side of the line (Baker 2011, p. 7), and germination, alkaline soils, full sunlight, area occupied by the species at the time we do not consider the site essential for and diverse floral communities to attract of listing and any specific areas outside the conservation of the thistle because pollinators. The features may require the geographical area occupied by the of the lack of suitable habitat and very special management considerations or species to be considered for designation low restoration potential. Ten historical protection to reduce the following as critical habitat. We are not currently occurrences occurred in New Mexico, threats: Ground and surface water proposing to designate any areas outside but in a recent search effort at one of the depletion, increasing drought and the geographical area occupied by the sites (Lake County), the thistle was not changes in climate change, livestock species because we did not find any found (Sivinski 2011, p. 40) and the grazing, oil and gas development and areas that were essential for the habitat was found to be converted to an mining, and native and nonnative conservation of the species. impervious surface. Another of the 10 plants. Localized stressors may also When we are determining which areas records (Rattlesnake Springs, Eddy include herbicide use and mowing. The should be designated as critical habitat, County) is now thought to be a hybrid species occupies small areas of seeps, our primary source of information is between Wright’s marsh thistle and springs, and wetland habitat in an arid generally the SSA report and Texas thistle (C. texanum) (NMRPTC region that is experiencing drought as information developed during the 2009, p. 2), and the site where it was well as ongoing and future water listing process for the species. recorded is now a golf course. We do withdrawals. The species’ highly Additional information sources may not consider either of these two sites in specific requirements of saturated soils include any generalized conservation New Mexico to be essential for the with surface or subsurface water flow strategy, criteria, or outline that may conservation of the thistle, because the make it particularly vulnerable to have been developed for the species; species is no longer present, the habitat desiccation and loss of suitable habitat. articles in peer-reviewed journals; is no longer available, or the species was Furthermore, the thistle’s need for full conservation plans developed by States misidentified. However, the remaining sunlight makes it particularly and counties; scientific status surveys eight locations in New Mexico meet the vulnerable to native and nonnative grass and studies; biological assessments; definition of areas occupied by the planting and habitat encroachment. other unpublished materials; or experts’ Special management considerations opinions or personal knowledge. In this thistle at the time of listing; they are: or protections are required within case, we used existing occurrence data Santa Rosa, Guadalupe County; Bitter critical habitat areas to address these for Wright’s marsh thistle and Lake NWR, Chaves County; Blue Spring, threats. Management activities that information on the habitat and Eddy County; La Luz Canyon, Karr/ could ameliorate these threats include, ecosystems upon which the species Haynes Canyon, Silver Springs, and but are not limited to: (1) Conservation depends. These sources of information Tularosa Creek, Otero County; and efforts to ensure sufficient water included, but were not limited to: Alamosa Creek, Socorro County. availability; (2) managing livestock (1) Data used to prepare the species In summary, for areas within the grazing via the use of exclosures; (3) status assessment and this proposed geographic area occupied by the species control of native and nonnative plants rule to list the species; at the time of listing, we delineated via controlled burning or mechanical (2) Information from biological critical habitat unit boundaries using treatments; (4) spill prevention and surveys; the following process: groundwater protection during oil and (3) Various agency reports and (1) We obtained point observations of gas development and mining; (5) databases; all currently occupied areas;

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(2) We drew minimum convex contain one or more of the physical or habitat for Wright’s marsh thistle. The polygons around the point observations; biological features that are essential to critical habitat areas we describe below and support life-history processes of the constitute our current best assessment of (3) We expanded the polygons to species. We are not proposing to areas that meet the definition of critical include all adjacent areas containing the designate any areas that are not habitat for the species. Table 3 provides essential physical and biological currently occupied by the species. the approximate area of each proposed features (specifically the wetted area/ Eight units and 13 subunits are critical habitat unit. Table 4 breaks moist soil outside of highly vegetated proposed for designation based on one down the approximate percentage and locations) to support life-history or more of the physical or biological size of the total critical habitat processes essential to the conservation features being present to support designation by ownership type. Table 5 of the species. Wright’s marsh thistle’s life-history When determining proposed critical processes. All eight units contain all of provides currently listed species with habitat boundaries, we made every the identified physical or biological occupied habitat on, and designated effort to avoid including developed features and support multiple life- critical habitat that overlaps with, areas such as lands covered by history processes. Some subunits proposed critical habitat for Wright’s buildings, pavement, and other contain only some of the physical or marsh thistle. Species with existing structures because such lands lack biological features necessary to support critical habitat that overlaps with physical or biological features necessary Wright’s marsh thistle’s particular use of proposed critical habitat for Wright’s for Wright’s marsh thistle. The scale of that habitat. marsh thistle include the Koster’s the maps we prepared under the The proposed critical habitat springsnail (Juturnia kosteri), Noel’s parameters for publication within the designation is defined by the map or amphipod (Gammarus desperatus), Code of Federal Regulations may not maps, as modified by any accompanying Roswell springsnail (Pyrgulopsis reflect the exclusion of such developed regulatory text, presented at the end of roswellensis), Pecos sunflower lands. Any such lands inadvertently left this document under Proposed (Helianthus paradoxus), and the New inside critical habitat boundaries shown Regulation Promulgation. We include Mexico meadow jumping mouse (Zapus on the maps of this proposed rule have more detailed information on the hudsonius luteus). Other listed species been excluded by text in the proposed boundaries of the critical habitat in the boundaries of proposed critical rule and are not proposed for designation in the preamble of this habitat include the Alamosa springsnail designation as critical habitat. document. We will make the (Tryonia alamosae), Chiricahua leopard Therefore, if the critical habitat is coordinates or plot points or both on frog (Lithobates chiricahuensis), least finalized as proposed, a Federal action which each map is based available to tern (Sterna antillarum), and Pecos involving these lands would not trigger the public on http:// section 7 consultation with respect to www.regulations.gov at Docket No. gambusia (Gambusia nobilis). Three critical habitat and the requirement of FWS–R2–ES–2018–0071 and on the other listed species (or their critical no adverse modification unless the New Mexico Ecological Services’ habitat) that are found in close specific action would affect the physical website at https://www.fws.gov/ proximity (<1609 m (1 mi)) to proposed or biological features in the adjacent southwest/es/NewMexico/index.cfm. critical habitat for Wright’s marsh thistle critical habitat. include the pecos pupfish (Cyprinodon We propose for designation as critical Proposed Critical Habitat Designation pecosensis), the Sacramento prickly habitat lands that we have determined We propose to designate 64.3 ha (159 poppy (Argemone pinnatisecta), and the are occupied at the time of listing and ac) in 8 units and 13 subunits as critical Sacramento Mountains thistle.

TABLE 3—PROPOSED CRITICAL HABITAT UNITS FOR WRIGHT’S MARSH THISTLE

Unit No. and name Subunit No. and name Ownership Area

1—Santa Rosa ...... 1a—Blue Hole Hatchery ...... City of Santa Rosa ...... 0.93 ha (2.3 ac). 1b—Blue Hole Road South ...... State ...... 0.45 ha (1.1 ac). 1c—State Highway 91 North ...... State ...... 12.2 ha (30.1 ac). 1d—Santa Rosa Ballpark South ...... City of Santa Rosa ...... 0.97 ha (2.4 ac). 1e—State Highway 91 South ...... City of Santa Rosa ...... 5.9 ha (14.6 ac). Private ...... 0.78 ha (1.92 ac). 1f—Perch Lake ...... City of Santa Rosa ...... 1.9 ha (4.6 ac). 1g—Sheehan Trust ...... Private ...... 2.4 ha (6.0 ac). 1h—Freeman Property ...... City of Santa Rosa ...... 0.18 ha (0.44 ac). Private ...... 0.91 ha (2.24 ac). 2—Alamosa Springs ...... Private ...... 1.58 ha (3.9 ac). 3—Bitter Lake ...... 3a—NWR Unit 5 ...... U.S. Fish and Wildlife Service ...... 3.16 ha (7.8 ac). 3b—NWR Unit 6 ...... U.S. Fish and Wildlife Service ...... 15.9 ha (39.2 ac). 4—Tularosa Creek ...... Tribal ...... 0.65 ha (1.6 ac). 5—La Luz Canyon ...... U.S. Forest Service ...... 0.01 ha (0.03 ac). 6—Silver Springs ...... U.S. Forest Service ...... 0.38 ha (0.95 ac). Tribal ...... 0.23 ha (0.58 ac). 7—Karr/Haynes Canyon ...... 7a—Haynes Canyon Road ...... Private ...... 0.008 ha (0.02 ac). 7b—Karr Canyon Road ...... Private ...... 0.73 ha (1.8 ac). 7c—Raven Road ...... Private ...... 1.05 ha (2.6 ac). 8—Blue Springs ...... Private ...... 14.04 ha (34.7 ac). Note: Area estimates reflect all land within critical habitat unit boundaries, and estimates may not sum due to rounding.

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TABLE 4—APPROXIMATE PERCENTAGE AND SIZE OF TOTAL PROPOSED CRITICAL HABITAT DESIGNATION FOR WRIGHT’S MARSH THISTLE PER OWNERSHIP TYPE

Percent Ownership type of total Size of designation designation

Private ...... 33.5 21.5 ha (53.13 ac). Federal ...... 30 19.45 ha (48 ac). State ...... 19.7 12.65 ha (31.26 ac). City ...... 15.4 9.88 ha (24.4 ac). Tribal ...... 0.004 0.65 ha (1.6 ac).

TABLE 5—WRIGHT’S MARSH THISTLE PROPOSED CRITICAL HABITAT UNITS AND CO-OCCURRING LISTED SPECIES OR EXISTING CRITICAL HABITAT

Existing designated critical habitat Unit No. and name Subunit No. and name Co-occurring listed species for other listed species (ha (ac) of overlapping occupied habitat) (ha (ac) of overlapping critical habitat)

1—Santa Rosa ...... 1a—Blue Hole Hatchery ... Pecos sunflower (0.42 ha (1.0 ac)) ...... Pecos sunflower (0.93 ha (2.3 ac)). 1b—Blue Hole Road n/a ...... Pecos sunflower (0.45 ha (1.0 ac)). South. 1c—State Highway 91 Pecos sunflower (0.15 ha (0.4 ac)) ...... Pecos sunflower (12.2 ha (30.0 ac)). North. 1d—Santa Rosa Ballpark n/a ...... n/a. South. 1e—State Highway 91 Pecos sunflower (0.15 ha (.04 ac)) ...... n/a. South. 1f—Perch Lake ...... Pecos sunflower (0.03 ha (.07 ac)) ...... n/a. 1g—Sheehan Trust ...... n/a ...... n/a. 1h—Freeman Property ..... n/a ...... n/a. 2—Alamosa Springs ...... Alamosa springsnail (1.58 ha (3.9 ac)); Chiricahua n/a. leopard frog (1.58 ha (3.9 ac)). 3—Bitter Lake ...... 3a—NWR Unit 5 ...... Least tern (0.98 ha (2.4 ac)); (Koster’s springsnail,* Pecos sunflower (3.16 ha (7.8 ac)). Noel’s amphipod,* Pecos gambusia,* Pecos pupfish,* Roswell springsnail *). 3b—NWR Unit 6 ...... Koster’s springsnail (2.4 ha (5.9 ac)); Least tern (2.8 Koster’s springsnail (2.4 ha (5.9 ac)); Pecos sun- ha (6.9 ac)); Roswell springsnail (2.4 ha 5.9 ac)); flower (15.9 ha (39.3 ac)); Roswell springsnail (2.4 Noel’s amphipod (2.4 ha (5.9 ac)); (Pecos ha (5.9 ac)); Noel’s amphipod (2.4 ha (5.9 ac)). gambusia,* Pecos pupfish *). 4—Tularosa Creek ...... n/a ...... na. 5—La Luz Canyon ...... (Sacramento prickly poppy *) ...... n/a. 6—Silver Springs ...... New Mexico meadow jumping mouse (0.38 ha (0.9 New Mexico meadow jumping mouse (0.38 ha (0.9 ac)); (Sacramento Mountains thistle *). ac)). 7—Karr/Haynes Canyon 7a—Haynes Canyon Road n/a ...... n/a. 7b—Karr Canyon Road .... n/a ...... n/a. 7c—Raven Road ...... n/a ...... n/a. 8—Blue Springs ...... Pecos gambusia (11.7 ha (28.9 ac)) ...... n/a. * Species and/or critical habitat found in close proximity (<1,609 m (1 mi)) critical habitat unit, but not overlapping exactly.

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

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depletion, as well as native and well as native and nonnative plant lies mostly north of Forest Road 140 nonnative plant invasion. Such special invasion. Such special management or along Alamosa Creek, on privately management or protection may include protection may include conservation owned land. This unit entirely overlaps conservation efforts to ensure water efforts to ensure water availability, with occupied habitat for the federally availability, along with decreasing along with decreasing competition with endangered Alamosa springsnail and competition with native and nonnative native and nonnative plants via federally threatened Chiricahua leopard plants via prescribed burning and prescribed burning and mechanical frog. Special management mechanical treatments, if necessary. treatments, if necessary. Special considerations or protection may be Special management or protection may management or protection may also required in this unit to address ground also include watershed/wetland include watershed/wetland restoration and surface water depletion, water restoration efforts. efforts. Other special management quality, soil alkalinity, and native and considerations or protection may be nonnative plant invasion. Such special Subunit 1d: Santa Rosa Ballpark South required to address localized stressors management or protection may include Subunit 1d consists of two small land from herbicide use and mowing in areas conservation efforts to ensure water parcels comprising 0.97 ha (2.4 ac) in around Perch Lake, which is located availability, to protect ground water and Guadalupe County, New Mexico. This inside the subunit. soil from contaminants during mining subunit lies south of the City of Santa activities, and to decrease competition Subunit 1g: Sheehan Trust Rosa ballpark, on an undeveloped with native and nonnative plants via portion of City of Santa Rosa land. Subunit 1g consists of 2.4 ha (6.0 ac) prescribed burning and mechanical Special management considerations or in Guadalupe County, New Mexico. treatments, if necessary. Special protection may be required in Subunit This subunit lies east of River Road and management or protection may also 1d to address ground and surface water the Pecos River on privately owned include watershed/wetland restoration depletion, as well as native and lands, which are currently held in a efforts. nonnative invasion. Such special land trust. Special management management or protection may include considerations or protection may be Unit 3: Bitter Lake conservation efforts to ensure water required in Subunit 1g to address Unit 3 consists of two subunits availability, along with decreasing ground and surface water depletion, as comprising 19.0 ha (47 ac) in Chaves competition with native and nonnative well as native and nonnative plant County, New Mexico, on Bitter Lake plants via prescribed burning and invasion. Such special management or National Wildlife Refuge (NWR). Unit 3 mechanical treatments, if necessary. protection may include conservation is entirely managed by the U.S. Fish and Special management or protection may efforts to ensure water availability, Wildlife Service. This unit overlaps also include watershed/wetland along with decreasing competition with with occupied habitat for the federally restoration efforts. Other special native and nonnative plants via endangered Koster’s springsnail, Noel’s management considerations or prescribed burning and mechanical amphipod, Roswell springsnail, and protection may be required to address treatments, if necessary. Special least tern. The unit also overlaps with localized stressors from herbicide use management or protection may also designated critical habitat for the and mowing in recreational areas. include watershed/wetland restoration Koster’s springsnail, Noel’s amphipod, efforts. As this property was formerly Roswell springsnail, and Pecos Subunit 1e: State Highway 91 South grazed and may be grazed again in the sunflower. Subunit 1e consists of 6.7 ha (16.5 ac) future, special management or Subunit 3a: NWR Unit 5 in Guadalupe County, New Mexico. protection may be required to address This subunit lies south of State Highway impacts of livestock grazing as Subunit 3a consists of 3.16 ha (7.8 ac) 91 on City of Santa Rosa and private appropriate. in Chaves County, New Mexico, within lands. Special management Wetland Management Unit 5 on Bitter considerations or protection may be Subunit 1h: Freeman Property Lake NWR. Special management required in Subunit 1e to address Subunit 1h consists of five small considerations or protection may be ground and surface water depletion, as parcels of land comprising 1.09 ha (2.68 required in Subunit 3a to address well as native and nonnative plant ac) in Guadalupe County, New Mexico. ground and surface water depletion, invasion. Such special management or This subunit lies west of Subunit 1g on water quality, soil alkalinity, and native protection may include conservation City of Santa Rosa property and and nonnative plant invasion. Such efforts to ensure water availability, privately owned lands. Special special management or protection may along with decreasing competition with management considerations or include conservation efforts to ensure native and nonnative plants via protection may be required in Subunit water availability, spill prevention and prescribed burning and mechanical 1h to address ground and surface water groundwater protection during oil and treatments, if necessary. Special depletion, as well as native and gas development, and decreasing management or protection may also nonnative plant invasion. Such special competition with native and nonnative include watershed/wetland restoration management or protection may include plants via prescribed burning and efforts. conservation efforts to ensure water mechanical and herbicide treatments, if availability, along with decreasing necessary. Special management or Subunit 1f: Perch Lake competition with native and nonnative protection may also include watershed/ Subunit 1f consists of 1.9 ha (4.6 ac) plants via prescribed burning and wetland restoration efforts. in Guadalupe County, New Mexico. mechanical treatments, if necessary. Subunit 3b: NWR Unit 6 This subunit includes most of the shores Special management or protection may of Perch Lake on City of Santa Rosa also include watershed/wetland Subunit 3b consists of 15.9 ha (39.2 property, extending south into an restoration efforts. ac) in Chaves County, New Mexico, undeveloped area. Special management within Wetland Management Unit 6 on considerations or protection may be Unit 2: Alamosa Springs Bitter Lake NWR. Special management required in Subunit 1f to address Unit 2 consists of 1.58 ha (3.9 ac) in considerations or protection may be ground and surface water depletion, as Socorro County, New Mexico. This unit required in Subunit 3b to address

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ground and surface water depletion, Service, and land owned by the plants via prescribed burning and water quality, soil alkalinity, and native Mescalero Apache Tribe. This unit mechanical treatments, if necessary. and nonnative plant invasion. Such overlaps with occupied habitat and Special management or protection may special management or protection may critical habitat for the federally also include watershed/wetland include conservation efforts to ensure endangered New Mexico meadow restoration efforts. As this property has water availability, spill prevention and jumping mouse. Special management the potential to be grazed, special groundwater protection during oil and considerations or protection may be management or protection may be gas development, and decreasing required in this unit to address ground required to address impacts of livestock competition with native and nonnative and surface water depletion, as well as grazing as appropriate. plants via prescribed burning and native and nonnative plant invasion. mechanical and herbicide treatments, if Such special management or protection Subunit 7c: Raven Road necessary. Special management or may include conservation efforts to Subunit 7c consists of two small protection may also include watershed/ ensure water availability, along with parcels comprising 1.05 ha (2.6 ac) in wetland restoration efforts. decreasing competition with native and Otero County, New Mexico. This nonnative plants via prescribed burning subunit lies along either side of Raven Unit 4: Tularosa Creek and mechanical treatments, if necessary. Road on privately owned lands. Special Unit 4 consists of 0.65 ha (1.6 ac) in Special management or protection may management considerations or Otero County, New Mexico. This unit also include watershed/wetland protection may be required in Subunit lies along Indian Service Route 10, restoration efforts. As this property has 7c to address ground and surface water north of Tularosa Creek, on land owned the potential to be grazed, special depletion, as well as native and by the Mescalero Apache Tribe. Special management or protection may be nonnative plant invasion. Such special management considerations or required to address impacts of livestock management or protection may include protection may be required in this unit grazing as appropriate. conservation efforts to ensure water to address ground and surface water Unit 7: Karr/Haynes Canyon availability, along with decreasing depletion, as well as native and competition with native and nonnative nonnative plant invasion. Such special Unit 7 consists of three subunits that plants via prescribed burning and management or protection may include comprise 1.79 ha (4.42 ac) in Otero mechanical treatments, if necessary. conservation efforts to ensure water County, New Mexico. This unit consists Special management or protection may availability, along with decreasing of privately owned lands. also include watershed/wetland competition with native and nonnative Subunit 7a: Haynes Canyon Road restoration efforts. As this property has plants via prescribed burning and the potential to be grazed, special Subunit 7a consists of 0.008 ha (0.02 mechanical treatments, if necessary. management or protection may be ac) in Otero County, New Mexico. This Special management or protection may required to address impacts of livestock subunit lies south of Haynes Canyon also include watershed/wetland grazing as appropriate. restoration efforts. Road on privately owned lands. Special management considerations or Unit 8: Blue Springs Unit 5: La Luz Canyon protection may be required in Subunit Unit 8 consists of 14.04 ha (34.7 ac) Unit 5 consists of 0.01 ha (0.03 ac) in 7a to address ground and surface water in Eddy County, New Mexico. This unit Otero County, New Mexico, on the depletion, as well as native and lies along a small tributary north of the Lincoln National Forest. This unit lies nonnative plant invasion. Such special Black River on privately owned land. north of La Luz Canyon Road, along La management or protection may include This unit overlaps with occupied Luz Creek, on lands managed by the conservation efforts to ensure water habitat for the federally endangered U.S. Forest Service. Special availability, along with decreasing Pecos gambusia. Special management management considerations or competition with native and nonnative considerations or protection may be protection may be required in this unit plants via prescribed burning and required in this unit to address ground to address ground and surface water mechanical treatments, if necessary. and surface water depletion, water depletion, as well as native and Special management or protection may quality, soil alkalinity, and native and nonnative plant invasion. Such special also include watershed/wetland nonnative plant invasion. Such special management or protection may include restoration efforts. As this property has management or protection may include conservation efforts to ensure water the potential to be grazed, special conservation efforts to ensure water availability, along with decreasing management or protection may be availability, spill prevention and competition with native and nonnative required to address impacts of livestock groundwater protection during oil and plants via prescribed burning and grazing as appropriate. gas development, and decreasing mechanical treatments, if necessary. Subunit 7b: Karr Canyon Road competition with native and nonnative Special management or protection may plants via prescribed burning and also include watershed/wetland Subunit 7b consists of two small parcels comprising 0.73 ha (1.8 ac) in mechanical treatments, if necessary. restoration efforts. As this property has Special management or protection may the potential to be grazed, special Otero County, New Mexico. This subunit lies along either side of Karr also include watershed/wetland management or protection may be restoration efforts. required to address impacts of livestock Canyon Road on privately owned lands. grazing as appropriate. Special management considerations or Effects of Critical Habitat Designation protection may be required in Subunit Unit 6: Silver Springs 7b to address ground and surface water Section 7 Consultation Unit 6 consists of 0.62 ha (1.53 ac) in depletion, as well as native and Section 7(a)(2) of the Act requires Otero County, New Mexico. This unit nonnative plant invasion. Such special Federal agencies, including the Service, lies east of State Highway 224, along management or protection may include to ensure that any action they fund, Silver Springs Creek. This unit contains conservation efforts to ensure water authorize, or carry out is not likely to land on the Lincoln National Forest, availability, along with decreasing jeopardize the continued existence of which is managed by the U.S. Forest competition with native and nonnative any endangered species or threatened

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species or result in the destruction or 402.02) as alternative actions identified proposed or final regulation that adverse modification of designated during consultation that: designates critical habitat, activities critical habitat of such species. In (1) Can be implemented in a manner involving a Federal action that may addition, section 7(a)(4) of the Act consistent with the intended purpose of violate 7(a)(2) of the Act by destroying requires Federal agencies to confer with the action, or adversely modifying such the Service on any agency action which (2) Can be implemented consistent designation. is likely to jeopardize the continued with the scope of the Federal agency’s Activities that the Services may, existence of any species proposed to be legal authority and jurisdiction, during a consultation under section listed under the Act or result in the (3) Are economically and 7(a)(2) of the Act, find are likely to destruction or adverse modification of technologically feasible, and destroy or adversely modify critical proposed critical habitat. (4) Would, in the Service Director’s habitat include, but are not limited to: We published a final regulation with opinion, avoid the likelihood of (1) Actions that would diminish a revised definition of destruction or jeopardizing the continued existence of permanent root saturation. Such adverse modification on August 27, the listed species and/or avoid the activities could include, but are not 2019 (84 FR 44976). Destruction or likelihood of destroying or adversely limited to, water diversions and water adverse modification means a direct or modifying critical habitat. withdrawals for agricultural, mineral Reasonable and prudent alternatives indirect alteration that appreciably mining, or urban purposes. These can vary from slight project diminishes the value of critical habitat activities could reduce Wright’s marsh modifications to extensive redesign or as a whole for the conservation of a thistle’s water availability, and increase relocation of the project. Costs listed species. its competition for water resources, associated with implementing a If a Federal action may affect a listed thereby depleting a resource necessary reasonable and prudent alternative are species or its critical habitat, the for the plant’s normal growth and similarly variable. responsible Federal agency (action survival. Regulations at 50 CFR 402.16 require (2) Actions that would alter the agency) must enter into consultation Federal agencies to reinitiate formal with us. Examples of actions that are alkalinity of the soil. Such activities consultation on previously reviewed could include, but are not limited to, oil subject to the section 7 consultation actions. These requirements apply when process are actions on State, tribal, and gas development and mining. These the Federal agency has retained activities could result in significant local, or private lands that require a discretionary involvement or control Federal permit (such as a permit from ground disturbance that could alter the over the action (or the agency’s chemical and physical properties of the the U.S. Army Corps of Engineers under discretionary involvement or control is section 404 of the Clean Water Act (33 soil. authorized by law) and, subsequent to (3) Actions that would diminish the U.S.C. 1251 et seq.) or a permit from the the previous consultation, we have Service under section 10 of the Act) or availability of full sunlight. Such listed a new species or designated activities could include, but are not that involve some other Federal action critical habitat that may be affected by (such as funding from the Federal limited to, vegetation management that the Federal action, or the action has encourages growth of competing native Highway Administration, Federal been modified in a manner that affects Aviation Administration, or the Federal and nonnative species. These activities the species or critical habitat in a way could lead to habitat encroachment Emergency Management Agency). not considered in the previous Federal actions not affecting listed resulting in a decreased availability of consultation. In such situations, Federal sunlight. species or critical habitat—and actions agencies sometimes may need to request on State, tribal, local, or private lands (4) Actions that would decrease the reinitiation of consultation with us, but diversity and abundance of floral that are not federally funded, the regulations also specify some authorized, or carried out by a Federal resources and pollinators. Such exceptions to the requirement to activities could include, but are not agency—do not require section 7 reinitiate consultation on specific land consultation. limited to, the use of pesticides and management plans after subsequently herbicides, livestock grazing, and oil Compliance with the requirements of listing a new species or designating new section 7(a)(2) is documented through and gas development and mining. These critical habitat. See the regulations for a activities could lead to direct mortality our issuance of: description of those exceptions. (1) A concurrence letter for Federal of pollinators and diminish the floral actions that may affect, but are not Application of the ‘‘Adverse resources available to pollinators. likely to adversely affect, listed species Modification’’ Standard Exemptions or critical habitat; or The key factor related to the Application of Section 4(a)(3) of the Act (2) A biological opinion for Federal destruction or adverse modification actions that may affect and are likely to determination is whether Section 4(a)(3)(B)(i) of the Act (16 adversely affect, listed species or critical implementation of the proposed Federal U.S.C. 1533(a)(3)(B)(i)) provides that: habitat. action directly or indirectly alters the ‘‘The Secretary shall not designate as When we issue a biological opinion designated critical habitat in a way that critical habitat any lands or other concluding that a project is likely to appreciably diminishes the value of the geographical areas owned or controlled jeopardize the continued existence of a critical habitat as a whole for the by the Department of Defense (DoD), or listed species and/or destroy or conservation of the listed species. As designated for its use, that are subject to adversely modify critical habitat, we discussed above, the role of critical an integrated natural resources provide reasonable and prudent habitat is to support physical or management plan (INRMP) prepared alternatives to the project, if any are biological features essential to the under section 101 of the Sikes Act (16 identifiable, that would avoid the conservation of a listed species and U.S.C. 670a), if the Secretary determines likelihood of jeopardy and/or provide for the conservation of the in writing that such plan provides a destruction or adverse modification of species. benefit to the species for which critical critical habitat. We define ‘‘reasonable Section 4(b)(8) of the Act requires us habitat is proposed for designation.’’ and prudent alternatives’’ (at 50 CFR to briefly evaluate and describe, in any There are no DoD lands with a

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

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In our IEM, we attempted to clarify designation are expected to be limited to modifying critical habitat above those the distinction between the effects that administrative costs. we would recommend for avoiding will result from the species being listed The entities most likely to incur jeopardy to the species, and we and those attributable to the critical incremental costs are parties to section anticipate minimal change in habitat designation (i.e., difference 7 consultations, including Federal management at Bitter Lake NWR and between the jeopardy and adverse action agencies and, in some cases, third Lincoln National Forest due to the modification standards) for Wright’s parties, most frequently State agencies designation of critical habitat for marsh thistle’s critical habitat. Because or municipalities. Our analysis of Wright’s marsh thistle. the designation of critical habitat for economic impacts makes the following We are soliciting data and comments Wright’s marsh thistle is being proposed assumptions about consultation activity from the public on the DEA, as well as concurrently with the listing, it has been over the next 10 years, most of which all aspects of the proposed rule and our our experience that it is more difficult are more likely to overstate than required determinations. During the to discern which conservation efforts understate potential impacts due to the development of a final designation, we history of biological assessments and will consider any additional economic are attributable to the species being implementation of project conservation impact information we receive during listed and those which will result solely measures by the action agencies. The the public comment period to determine from the designation of critical habitat. analysis assumes that approximately whether any specific areas should be However, the following specific five section 7 consultations will occur excluded from the final critical habitat circumstances in this case help to annually in the designated critical designation under authority of section inform our evaluation: (1) The essential habitat, across all eight units, based on 4(b)(2) and our implementing physical or biological features identified the previous consultation history in the regulations at 50 CFR 424.19. In for critical habitat are the same features area. Most of these are anticipated to particular, we may exclude an area from essential for the life requisites of the occur in areas with Federal lands, critical habitat if we determine that the species and (2) any actions that would including units 3, 5, and 6, as well as benefits of excluding the area outweigh result in sufficient harm or harassment the large unit 1. the benefits of including the area, to constitute jeopardy to Wright’s marsh This may overstate the number of provided the exclusion will not result in thistle would also likely adversely affect consultations that will occur given the extinction of this species. the essential physical or biological available information on forecast features of critical habitat. The IEM activity. As stated above, we anticipate Consideration of National Security outlines our rationale concerning this that conservation efforts needed to Impacts limited distinction between baseline avoid adverse modification are likely to In preparing this proposal, we have conservation efforts and incremental be the same as those needed to avoid determined that the lands within the impacts of the designation of critical impacts to the species itself. As such, proposed designation of critical habitat habitat for this species. This evaluation costs of critical habitat designation for for Wright’s marsh thistle are not of the incremental effects has been used Wright’s marsh thistle are anticipated to owned, managed, or used by the DoD or as the basis to evaluate the probable be limited to administrative costs. We Department of Homeland Security, and, incremental economic impacts of this anticipate that the incremental therefore, we anticipate no impact on proposed designation of critical habitat. administrative costs of addressing national security or homeland security. However, during the development of a The Service is proposing to designate adverse modification of critical habitat for the species in a section 7 final designation we will consider any 64.3 ha (159 ac) across five New Mexico consultation will be minor. additional information received through counties as critical habitat for Wright’s The incremental administrative the public comment period on the marsh thistle. The Service has divided burden resulting from the designation of impacts of the proposed designation on the proposed critical habitat into eight critical habitat for Wright’s marsh national security or homeland security units, with some further divided into thistle, based on the anticipated annual to determine whether any specific areas subunits. All eight units are considered number of consultations and associated should be excluded from the final occupied because they contain consultation costs, is not expected to critical habitat designation under reproducing populations of the thistle. exceed $25,000 in most years. The authority of section 4(b)(2) and our We are not proposing to designate any designation is unlikely to trigger implementing regulations at 50 CFR units of unoccupied habitat. additional requirements under State or 424.19. Approximately 29 percent of the local regulations. Furthermore, the proposed designation is located on designation is quite small, limited to Consideration of Other Relevant Federal lands, 20 percent is on State- 64.3 ha (159 ac) in total, with the local Impacts owned lands, and 1 percent on land government, municipal, and private Under section 4(b)(2) of the Act, we owned by the Mescalero Tribe. Fifteen lands limited to 31.33 ha (77.4 ac); consider any other relevant impacts, in percent of proposed lands are owned by therefore, the designation is not addition to economic impacts and the City of Santa Rosa, and 35 percent expected to have significant impacts on national security. We are privately owned. In these areas, any perceptional effects. Because the consider a number of factors including actions that may affect the species or its designation is not expected to result in whether there are permitted habitat would also affect designated incremental conservation efforts for the conservation plans covering the species critical habitat, and it is unlikely that species, the designation is also unlikely in the area such as Habitat Conservation any additional conservation efforts to measurably increase the probability Plans, safe harbor agreements, or would be recommended to address the that the species will be conserved, and candidate conservation agreements with adverse modification standard over and benefits are also unlikely to exceed assurances, or whether there are non- above those recommended as necessary $25,000 in a given year. In our DEA, we permitted conservation agreements and to avoid jeopardizing the continued did not identify any ongoing or future partnerships that would be encouraged existence of Wright’s marsh thistle. actions that would warrant additional by designation of, or exclusion from, Therefore, the potential incremental recommendations or project critical habitat. In addition, we look at economic effects of the critical habitat modifications to avoid adversely the existence of tribal conservation

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plans and partnerships and consider the language. This means that each rule we organizations, and small government government-to-government relationship publish must: jurisdictions). However, no regulatory of the United States with tribal entities. (1) Be logically organized; flexibility analysis is required if the We also consider any social impacts that (2) Use the active voice to address head of the agency certifies the rule will might occur because of the designation. readers directly; not have a significant economic impact (3) Use clear language rather than In preparing this proposal, we have on a substantial number of small jargon; entities. The SBREFA amended the RFA determined that there are currently no (4) Be divided into short sections and permitted conservation plans or other to require Federal agencies to provide a sentences; and certification statement of the factual management plans for Wright’s marsh (5) Use lists and tables wherever thistle. Only 0.88 ha (2.18 ac) of basis for certifying that the rule will not possible. have a significant economic impact on proposed critical habitat lands for If you feel that we have not met these Wright’s marsh thistle belong to the a substantial number of small entities. requirements, send us comments by one According to the Small Business Mescalero Apache Tribe; we have of the methods listed in ADDRESSES. To Administration, small entities include initiated coordination with the Tribe better help us revise the rule, your small organizations such as regarding the proposed critical habitat comments should be as specific as independent nonprofit organizations; designation and will continue to offer possible. For example, you should tell small governmental jurisdictions, government-to-government consultation us the numbers of the sections or including school boards and city and with them throughout development of paragraphs that are unclearly written, town governments that serve fewer than the final rulemaking. We anticipate no which sections or sentences are too 50,000 residents; and small businesses impact on tribal lands, partnerships, or long, the sections where you feel lists or (13 CFR 121.201). Small businesses permitted management plans from this tables would be useful, etc. include manufacturing and mining proposed critical habitat designation. concerns with fewer than 500 There are no adequate partnerships, Regulatory Planning and Review— Executive Orders 12866 and 13563 employees, wholesale trade entities Tribal partnerships, management, or with fewer than 100 employees, retail protection afforded by cooperative Executive Order 12866 provides that and service-sector businesses with less management efforts sufficient to provide the Office of Information and Regulatory than $5 million in annual sales, general for the conservation of the species. Affairs (OIRA) in the Office of and heavy construction businesses with There are no areas whose exclusion Management and Budget will review all less than $27.5 million in annual would result in conservation, or in the significant rules. OIRA has waived their business, special trade contractors doing continuation, strengthening, or review regarding their significance less than $11.5 million in annual encouragement of partnerships. determination of this proposed rule. business, and agricultural businesses Summary of Exclusions Executive Order 13563 reaffirms the with annual sales less than $750,000. To principles of E.O. 12866 while calling determine if potential economic impacts After analyzing these potential for improvements in the nation’s to these small entities are significant, we impacts, we are not considering any regulatory system to promote considered the types of activities that exclusions at this time from the predictability, to reduce uncertainty, might trigger regulatory impacts under proposed designation under section and to use the best, most innovative, this designation as well as types of 4(b)(2) of the Act based on economic and least burdensome tools for project modifications that may result. In impacts, national security impacts, or achieving regulatory ends. The general, the term ‘‘significant economic other relevant impacts such as executive order directs agencies to impact’’ is meant to apply to a typical partnerships, management, or protection consider regulatory approaches that small business firm’s business afforded by cooperative management reduce burdens and maintain flexibility operations. efforts. All areas proposed for critical and freedom of choice for the public The Service’s current understanding habitat will benefit from additional where these approaches are relevant, of the requirements under the RFA, as regulation for the protection from feasible, and consistent with regulatory amended, and following recent court destruction or adverse modification as a objectives. E.O. 13563 emphasizes decisions, is that Federal agencies are result of actions with a Federal nexus. further that regulations must be based only required to evaluate the potential All areas would see educational benefits on the best available science and that incremental impacts of rulemaking on of mapping essential habitat for the rulemaking process must allow for those entities directly regulated by the recovery of the listed species. During public participation and an open rulemaking itself and are, therefore, not the development of a final designation, exchange of ideas. We have developed required to evaluate the potential we will consider any additional this rule in a manner consistent with impacts to indirectly regulated entities. information received through the public these requirements. The regulatory mechanism through comment period regarding other which critical habitat protections are Regulatory Flexibility Act—5 U.S.C. 601 realized is section 7 of the Act, which relevant impacts to determine whether et seq. any specific areas should be excluded requires Federal agencies, in from the final critical habitat Under the Regulatory Flexibility Act consultation with the Service, to ensure designation under authority of section (RFA; 5 U.S.C. 601 et seq.), as amended that any action authorized, funded, or 4(b)(2) and our implementing by the Small Business Regulatory carried out by the agency is not likely regulations at 50 CFR 424.19. Enforcement Fairness Act of 1996 to destroy or adversely modify critical (SBREFA; 5 U.S.C. 801 et seq.), habitat. Therefore, under section 7, only Required Determinations whenever an agency is required to Federal action agencies are directly Clarity of the Rule publish a notice of rulemaking for any subject to the specific regulatory proposed or final rule, it must prepare requirement (avoiding destruction and We are required by Executive Orders and make available for public comment adverse modification) imposed by 12866 and 12988 and by the a regulatory flexibility analysis that critical habitat designation. Presidential Memorandum of June 1, describes the effects of the rule on small Consequently, it is our position that 1998, to write all rules in plain entities (i.e., small businesses, small only Federal action agencies will be

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directly regulated by this designation. this action is not a significant energy by the designation of critical habitat, the There is no requirement under RFA to action, and no Statement of Energy legally binding duty to avoid evaluate the potential impacts to entities Effects is required. destruction or adverse modification of not directly regulated. Moreover, critical habitat rests squarely on the Unfunded Mandates Reform Act—2 Federal agencies are not small entities. Federal agency. Furthermore, to the U.S.C. 1501 et seq. Therefore, because no small entities are extent that non-Federal entities are directly regulated by this rulemaking, In accordance with the Unfunded indirectly impacted because they the Service certifies that, if made final, Mandates Reform Act (2 U.S.C. 1501 et receive Federal assistance or participate the proposed critical habitat designation seq.), we make the following findings: in a voluntary Federal aid program, the will not have a significant economic (1) This rule would not produce a Unfunded Mandates Reform Act would impact on a substantial number of small Federal mandate. In general, a Federal not apply, nor would critical habitat entities. mandate is a provision in legislation, shift the costs of the large entitlement In summary, we have considered statute, or regulation that would impose programs listed above onto State whether the proposed designation an enforceable duty upon State, local, or governments. would result in a significant economic tribal governments, or the private sector, (2) This rule may have a small impact on a substantial number of small and includes both ‘‘Federal perceptional effect on the City of Santa entities. For the above reasons and intergovernmental mandates’’ and Rosa, New Mexico, due to the based on currently available ‘‘Federal private sector mandates.’’ designation of critical habitat. In information, we certify that, if made These terms are defined in 2 U.S.C. practice, small governments like Santa final, the proposed critical habitat 658(5)–(7). ‘‘Federal intergovernmental Rosa are affected by critical habitat only designation would not have a significant mandate’’ includes a regulation that to the extent that any programs having economic impact on a substantial ‘‘would impose an enforceable duty Federal funds, permits, or other number of small business entities. upon State, local, or tribal governments’’ authorized activities must ensure that Therefore, an initial regulatory with two exceptions. It excludes ‘‘a their actions will not adversely affect flexibility analysis is not required. condition of Federal assistance.’’ It also the critical habitat. Therefore, a Small excludes ‘‘a duty arising from Government Agency Plan is not Reducing Regulation and Controlling participation in a voluntary Federal required. However, we did notify the Regulatory Costs—Executive Order program,’’ unless the regulation ‘‘relates City of Santa Rosa of the proposed 13771 to a then-existing Federal program critical habitat with the publication of We do not believe this proposed rule under which $500,000,000 or more is this proposed rule, and we invite their is an E.O. 13771 (‘‘Reducing Regulation provided annually to State, local, and comments on the proposal with regard and Controlling Regulatory Costs’’) (82 tribal governments under entitlement to any potential effects. FR 9339, February 3, 2017) regulatory authority,’’ if the provision would action because we believe this rule is ‘‘increase the stringency of conditions of Takings—Executive Order 12630 not significant under E.O. 12866; assistance’’ or ‘‘place caps upon, or In accordance with E.O. 12630 however, the Office of Information and otherwise decrease, the Federal (Government Actions and Interference Regulatory Affairs has waived their Government’s responsibility to provide with Constitutionally Protected Private review regarding their E.O. 12866 funding,’’ and the State, local, or tribal Property Rights), we have analyzed the significance determination of this governments ‘‘lack authority’’ to adjust potential takings implications of proposed rule. accordingly. At the time of enactment, designating critical habitat for Wright’s these entitlement programs were: marsh thistle in a takings implications Energy Supply, Distribution, or Use— Medicaid; Aid to Families with assessment. The Act does not authorize Executive Order 13211 Dependent Children work programs; the Service to regulate private actions Executive Order 13211 (Actions Child Nutrition; Food Stamps; Social on private lands or confiscate private Concerning Regulations That Services Block Grants; Vocational property as a result of critical habitat Significantly Affect Energy Supply, Rehabilitation State Grants; Foster Care, designation. Designation of critical Distribution, or Use) requires agencies Adoption Assistance, and Independent habitat does not affect land ownership, to prepare Statements of Energy Effects Living; Family Support Welfare or establish any closures, or restrictions when undertaking certain actions. A Services; and Child Support on use of or access to the designated significant energy action is one that Enforcement. ‘‘Federal private sector areas. Furthermore, the designation of promulgates, or is expected to lead to mandate’’ includes a regulation that critical habitat does not affect the promulgation of, a final rule that is ‘‘would impose an enforceable duty landowner actions that do not require both (1) a significant regulatory action upon the private sector, except (i) a Federal funding or permits, nor does it under E.O. 12866, and (2) likely to have condition of Federal assistance or (ii) a preclude development of habitat a significant adverse effect on the duty arising from participation in a conservation programs or issuance of supply, distribution, or use of energy, or voluntary Federal program.’’ incidental take permits to permit actions a final rule that is designated by the The designation of critical habitat that do require Federal funding or Administrator of OIRA as a significant does not impose a legally binding duty permits to go forward. However, Federal energy action. OIRA has determined on non-Federal Government entities or agencies are prohibited from carrying that this rule is not significant. Further, private parties. Under the Act, the only out, funding, or authorizing actions that in our economic analysis, we did not regulatory effect is that Federal agencies would destroy or adversely modify find that the designation of this must ensure that their actions do not critical habitat. A takings implications proposed critical habitat will have an destroy or adversely modify critical assessment has been completed and annual effect on the economy of $100 habitat under section 7. While non- concludes that, if adopted, this million or more or significantly affect Federal entities that receive Federal designation of critical habitat for energy supplies, distribution, or use due funding, assistance, or permits, or that Wright’s marsh thistle would not pose to the lack of any energy supply or otherwise require approval or significant takings implications for distribution lines within the proposed authorization from a Federal agency for lands within or affected by the critical habitat designation. Therefore, an action, may be indirectly impacted designation.

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Federalism—Executive Order 13132 essential to the conservation of the readily acknowledge our responsibility In accordance with E.O. 13132 species. The designated areas of critical to communicate meaningfully with (Federalism), this proposed rule does habitat are presented on maps, and the recognized Federal Tribes on a not have significant Federalism effects. rule provides several options for the government-to-government basis. In A federalism summary impact statement interested public to obtain more accordance with Secretarial Order 3206 is not required. In keeping with detailed location information, if desired. of June 5, 1997 (American Indian Tribal Department of the Interior and Paperwork Reduction Act of 1995—44 Rights, Federal-Tribal Trust Department of Commerce policy, we U.S.C. 3501 et seq. Responsibilities, and the Endangered requested information from, and Species Act), we readily acknowledge This rule does not contain our responsibilities to work directly coordinated development of this information collection requirements, proposed critical habitat designation with tribes in developing programs for and a submission to the Office of healthy ecosystems, to acknowledge that with, appropriate State resource Management and Budget (OMB) under agencies in New Mexico. From a tribal lands are not subject to the same the Paperwork Reduction Act of 1995 controls as Federal public lands, to federalism perspective, the designation (44 U.S.C. 3501 et seq.) is not required. of critical habitat directly affects only remain sensitive to Indian culture, and We may not conduct or sponsor and you to make information available to tribes. the responsibilities of Federal agencies. are not required to respond to a There are tribal lands included in the The Act imposes no other duties with collection of information unless it proposed designation of critical habitat respect to critical habitat, either for displays a currently valid OMB control for Wright’s marsh thistle. Using the States and local governments, or for number. anyone else. As a result, the rule would criteria described above under Criteria not have substantial direct effects either National Environmental Policy Act—42 Used To Identify Critical Habitat, we on the States, or on the relationship U.S.C. 4321 et seq. have determined that some tribal lands between the national government and It is our position that, outside the that are occupied by the species contain the States, or on the distribution of jurisdiction of the U.S. Court of Appeals the features essential for the powers and responsibilities among the for the Tenth Circuit, we do not need to conservation the species. Only 0.88 ha various levels of government. The prepare environmental analyses (2.18 ac) of proposed critical habitat designation may have some benefit to pursuant to the National Environmental lands belong to the Mescalero Apache these governments because the areas Policy Act (NEPA; 42 U.S.C. 4321 et Tribe. We have begun government-to- that contain the features essential to the seq.) in connection with designating government consultation with the Tribe, conservation of the species are more critical habitat under the Act. We and we will continue to consult with clearly defined, and the physical or published a notice outlining our reasons the Tribe throughout the public biological features of the habitat for this determination in the Federal comment period on this proposed rule necessary to the conservation of the Register on October 25, 1983 (48 FR and during development of the final species are specifically identified. This 49244). This position was upheld by the designation of critical habitat for the information does not alter where and U.S. Court of Appeals for the Ninth species. We will consider Tribal lands what federally sponsored activities may Circuit (Douglas County v. Babbitt, 48 for exclusion from the final critical occur. F.3d 1495 (9th Cir. 1995), cert. denied habitat designation to the extent Where State and local governments 516 U.S. 1042 (1996)). However, when consistent with the requirements of require approval or authorization from a the range of the species includes States 4(b)(2) of the Act. The Mescalero Federal agency for actions that may within the Tenth Circuit, such as that of Apache Tribe is the main tribe whose affect critical habitat, consultation the Wright’s marsh thistle, under the lands and trust resources may be under section 7(a)(2) would be required. Tenth Circuit ruling in Catron County affected by this proposed rule. There While non-Federal entities that receive Board of Commissioners v. U.S. Fish may be some other tribes with trust Federal funding, assistance, or permits, and Wildlife Service, 75 F.3d 1429 (10th resources in the area but we have no or that otherwise require approval or Cir. 1996), we undertake a NEPA specific documentation of this. We sent authorization from a Federal agency for analysis for critical habitat designation. a notification letter to the Mescalero an action, may be indirectly impacted We invite the public to comment on the Apache Tribe on April 6, 2014, by the designation of critical habitat, the extent to which this proposed regulation describing the exclusion process under legally binding duty to avoid may have a significant impact on the section 4(b)(2) of the Act, and we have destruction or adverse modification of human environment, or fall within one engaged in conversations with the Tribe critical habitat rests squarely on the of the categorical exclusions for actions about the proposal to the extent possible Federal agency. that have no individual or cumulative without disclosing predecisional effect on the quality of the human information via requests for additional Civil Justice Reform—Executive Order information in September 2016 and 12988 environment. We will complete our analysis, in compliance with NEPA, January 2018. We will attempt to In accordance with Executive Order before finalizing this proposed rule. schedule a meeting with the Tribe, as 12988 (Civil Justice Reform), the Office well as other interested parties, shortly of the Solicitor has determined that the Government-to-Government after publication of this proposed rule rule does not unduly burden the judicial Relationship With Tribes so that we can give them as much time system and that it meets the In accordance with the President’s as possible to comment. requirements of sections 3(a) and 3(b)(2) memorandum of April 29, 1994 References Cited of the Order. We have proposed (Government-to-Government Relations designating critical habitat in with Native American Tribal A complete list of references cited in accordance with the provisions of the Governments; 59 FR 22951), Executive this proposed rule is available on the Act. To assist the public in Order 13175 (Consultation and internet at http://www.regulations.gov understanding the habitat needs of the Coordination With Indian Tribal and upon request from the New Mexico species, the rule identifies the elements Governments), and the Department of Ecological Services Field Office (see FOR of physical or biological features the Interior’s manual at 512 DM 2, we FURTHER INFORMATION CONTACT).

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Authors Proposed Regulation Promulgation Authority: 16 U.S.C. 1361–1407; 1531– 1544; and 4201–4245, unless otherwise The primary authors of this proposed Accordingly, we propose to amend noted. rule are the staff members of the New part 17, subchapter B of chapter I, title ■ 2. Amend § 17.12(h) by adding an Mexico Ecological Services Field Office. 50 of the Code of Federal Regulations, entry for ‘‘Cirsium wrightii’’ to the List as set forth below: List of Subjects in 50 CFR Part 17 of Endangered and Threatened Plants in alphabetical order under FLOWERING Endangered and threatened species, PART 17—ENDANGERED AND PLANTS to read as set forth below: Exports, Imports, Reporting and THREATENED WILDLIFE AND PLANTS § 17.12 Endangered and threatened plants. recordkeeping requirements, ■ Transportation. 1. The authority citation for part 17 * * * * * continues to read as follows: (h) * * *

Scientific name Common name Where listed Status Listing citations and applicable rules

FLOWERING PLANTS

******* Cirsium wrightii ...... Wright’s marsh thistle ..... Wherever found ...... T [Federal Register citation when published as a final rule]; 50 CFR 17.73(a);4d 50 CFR 17.96(a).CH

*******

■ 3. Add § 17.73 to read as follows: for such purposes, may, when acting in aqueducts, runways, roads, and other the course of official duties, remove and paved areas) and the land on which they § 17.73 Special rules—flowering plants. reduce to possession from areas under are located existing within the legal (a) Cirsium wrightii (Wright’s marsh Federal jurisdiction members of the boundaries on the effective date of this thistle). Wright’s marsh thistle that are covered rule. (1) Prohibitions. The following by an approved cooperative agreement (4) Critical habitat map units. Data prohibitions apply to the Wright’s to carry out conservation programs. marsh thistle except as provided under (b) [Reserved] layers defining map units were created paragraph (a)(2) of this section: ■ 4. In § 17.96, amend paragraph (a) by using the latest imagery available (i) Remove and reduce to possession adding an entry for ‘‘Cirsium wrightii through Esri (https://www.esri.com/en- from areas under Federal jurisdiction, as (Wright’s marsh thistle)’’ in alphabetical us/home). The actual source is set forth at § 17.61(c)(1) for endangered order under Family Asteraceae to read DigitalGlobe and the year of the imagery plants. as follows: was 2016. Critical habitat units were (ii) Maliciously damage or destroy the then mapped using ArcGIS ArcMap species on any areas under Federal § 17.96 Critical habitat—plants. 10.4. All data are in North America jurisdiction, or remove, cut, dig up, or (a) Flowering plants. Albers Equal Area Conic projection, damage or destroy the species on any * * * * * Datum North American 1983. The maps other area in knowing violation of any State law or regulation or in the course Family Asteraceae: Cirsium wrightii in this entry, as modified by any of any violation of a State criminal (Wright’s marsh thistle) accompanying regulatory text, establish trespass law, as set forth at section (1) Critical habitat units are depicted the boundaries of the critical habitat 9(a)(2)(B) of the Act. for Chavez, Eddy, Guadalupe, Otero, designation. The coordinates or plot (2) Exceptions from prohibitions. The and Socorro Counties, New Mexico, on points or both on which each map is following exceptions from prohibitions the maps in this entry. based are available to the public at the apply to the Wright’s marsh thistle: (2) Within these areas, the physical or Service’s internet site at https:// (i) The prohibitions described in biological features essential to the www.fws.gov/southwest/es/NewMexico/ paragraph (a)(1) of this section do not conservation of Wright’s marsh thistle index.cfm, at http:// apply to activities conducted as consist of the following components: www.regulations.gov under Docket No. authorized by a permit issued in (i) Water-saturated soils with surface FWS–R2–ES–2018–0071, and at the accordance with the provisions set forth or subsurface water flow that allows field office responsible for this at § 17.72. permanent root saturation and seed designation. You may obtain field office (ii) Any employee or agent of the germination; location information by contacting one Service or of a State conservation (ii) Alkaline soils; of the Service regional offices, the agency that is operating a conservation (iii) Full sunlight; and addresses of which are listed at 50 CFR program pursuant to the terms of a (iv) Diverse floral communities to 2.2. cooperative agreement with the Service attract pollinators. in accordance with section 6(c) of the (3) Critical habitat does not include (5) Note: Index map follows: Act, who is designated by that agency manmade structures (such as buildings, BILLING CODE 4333–15–P

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

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

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

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

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

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

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

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

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

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