# Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for Wright's Marsh Thistle With a Section 4(d) Rule and Designation of Critical Habitat > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2023-08565 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** April 25, 2023 - **Citation:** 88 FR 25208 ## Text DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R2-ES-2018-0071; FF09E21000 FXES1111090FEDR234] RIN 1018-BC34 Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for Wright's Marsh Thistle With a Section 4(d) Rule and Designation of Critical Habitat AGENCY: Fish and Wildlife Service, Interior. ACTION: Final rule. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine threatened species status under the Endangered Species Act of 1973 (Act), as amended, for the Wright's marsh thistle ( Cirsium wrightii ), a thistle species from New Mexico. We also designate critical habitat. In total, approximately 156.8 acres (63.4 hectares) in Chaves, Eddy, Guadalupe, Otero, and Socorro Counties, New Mexico, fall within the boundaries of the critical habitat designation. This rule adds the species to the List of Endangered and Threatened Wildlife. We also finalize a rule under the authority of section 4(d) of the Act that provides measures that are necessary and advisable to provide for the conservation of this species. DATES: This rule is effective May 25, 2023. ADDRESSES: This final rule is available on the internet at http://www.regulations.gov in Docket No. FWS-R2-ES-2018-0071 and at the New Mexico Ecological Services website at https://www.fws.gov/office/new-mexico-ecological-services. Comments and materials we received, as well as supporting documentation we used in preparing this rule, are available for public inspection in the docket on http://www.regulations.gov. For best results, do not copy and paste either number; instead, type the docket number or RIN into the Search box using hyphens. Then, click on the Search button. For the critical habitat designation, the coordinates or plot points or both from which the maps are generated are included in the decision file and are available at http://www.regulations.gov at Docket No. FWS-R2-ES-2018-0071. FOR FURTHER INFORMATION CONTACT: Shawn Sartorius, Field Supervisor, New Mexico Ecological Services Field Office, 2105 Osuna Rd. NE, Albuquerque, NM 87113; telephone 505-346-2525; facsimile 505-346-2542. Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-of-contact in the United States. SUPPLEMENTARY INFORMATION: Executive Summary Why we need to publish a rule. Under the Act, if we determine that a species is an endangered or threatened species throughout all or a significant portion of its range, we are required to promptly publish a proposal in the Federal Register and make a determination on our proposal within 1 year. To the maximum extent prudent and determinable, we must designate critical habitat for any species that we determine to be an endangered or threatened species under the Act. Listing a species as an endangered or threatened species and designation of critical habitat can only be completed by issuing a rule. What this document does. This rule lists the Wright's marsh thistle ( Cirsium wrightii ) as a threatened species with a 4(d) rule and designates critical habitat for the species under the Endangered Species Act. We are designating critical habitat for the species in 7 units totaling 63.4 hectares (ha) (156.8 acres (ac)) in Chaves, Eddy, Guadalupe, Otero, and Socorro Counties in New Mexico. The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that Wright's marsh thistle meets the definition of a threatened species primarily because of the present or threatened destruction, modification, or curtailment of its habitat or range (Factor A), and other natural and manmade factors affecting its continued existence such as changes in water availability, ungulate grazing, and oil and gas development, (Factor E). The existing regulatory mechanisms are inadequate to address the identified threats (Factor D). When listing a species as a threatened species, section 4(d) of the Act allows us to issue regulations that are necessary and advisable for the conservation of the species. Furthermore, section 4(a)(3) of the Act requires the Secretary of the Interior (Secretary) to designate critical habitat concurrently with listing to the maximum extent prudent and determinable. Section 3(5)(A) of the Act defines critical habitat as (i) the specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protections; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination by the Secretary that such areas are essential for the conservation of the species. Section 4(b)(2) of the Act states that the Secretary must make the designation on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impacts of specifying any particular area as critical habitat. Previous Federal Actions On September 29, 2020, we proposed to list the Wright's marsh thistle as a threatened species under the Act, with a proposed 4(d) rule and proposed designation of critical habitat (85 FR 61460). Please refer to that proposed rule for a detailed description of previous Federal actions concerning this species. Summary of Changes From the Proposed Rule Based on information provided during the comment period by the public, Tribes, States, and peer reviewers, we made the following minor changes to this final rule: • We updated species occurrence information and incorporated new information related to three previously unknown population locations; • We excluded approximately 0.88 ha (2.18 ac) of Mescalero Apache land from critical habitat as identified in Table 5, Areas excluded from Critical Habitat Designation by Critical Habitat Unit for Wright's Marsh Thistle; and • We made several small, non-substantive revisions and corrections throughout the document in response to comments, and per editorial review. Beyond those changes, this final listing rule, 4(d) rule, and critical habitat designation are unchanged from what we proposed on September 29, 2020 (85 FR 61460). Supporting Documents A species status assessment (SSA) team prepared an SSA report for the Wright's marsh thistle. The SSA team was composed of Service biologists, in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species. In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act, we sought peer review of the SSA report. The Service sent the SSA report to four independent peer reviewers with expertise in Wright's marsh thistle biology, life history, habitat, and range, and in the physical or biological features of its habitat. We received responses from one peer reviewer who provided comments on the SSA report that we integrated into the report, strengthening our analysis. The purpose of peer review is to ensure that our listing determinations, critical habitat designations, and 4(d) rules are based on scientifically sound data, assumptions, and analyses. We also sent the SSA report for review to 2 partners who have knowledge of the species biology and threats.. The SSA report and other materials relating to this rule can be found at http://www.regulations.gov under Docket No. FWS-R2-ES-2018-0071. I. Final Listing Determination Background We completed a comprehensive assessment of the biological status of the Wright's marsh thistle and prepared a report of the assessment (SSA report (USFWS 2017, entire)), which provides a thorough account of the species' overall viability and risks to that viability. Please refer to the SSA report as well as the September 29, 2020, proposed rule (85 FR 61460) for a full summary of species information. Both are available at http://www.regulations.gov under Docket No. FWS-R2-ES-2018-0071. Below, we summarize the key results and conclusions of the SSA report. Wright's marsh thistle (Gray 1853, p. 101), a member of the Asteraceae (sunflower) family, produces a 0.9 to 2.4-meter (m) (3- to 8-foot (ft)) single stalk covered with succulent leaves. There are two regional varieties of this species. The more eastern populations in the Pecos River Valley of New Mexico have vivid pink flowers and dark green foliage with taller plant height, while the more western and southern populations in New Mexico (and the previous populations in Arizona and Mexico) have white or pale pink flowers and pale green foliage (Sivinski 2011, pp. 27-28). The differences serve as evidence of ecological adaptability within the species, and we believe these differences represent genetic diversity between the eastern and western populations. Wright's marsh thistle was historically known to occur in Arizona, New Mexico, and Texas in the United States, and Chihuahua and Sonora in Mexico (Sivinski 2012, p. 2). Wright's marsh thistle has been extirpated from all previously known locations in Arizona, two historical locations in New Mexico, and was thought to be extirpated from all known locations in Texas and Mexico. However, in 2018, a reexamination of Texas herbarium specimens determined that two specimens were collections of Wright's marsh thistle (Nesom 2018, entire), with the most recent collection being from Presidio County, Texas in 2003, and in 2019, a team rediscovered a population of Wright's marsh thistle located on a private property in Chihuahua, Mexico (Sanchez Escalante et. al. 2019, p. 9-10). In New Mexico, eight confirmed locations of Wright's marsh thistle cover an area of approximately 43 ha (106 ac): Santa Rosa, in Guadalupe County; Bitter Lake National Wildlife Refuge (NWR), in Chaves County; Blue Spring, in Eddy County; La Luz Canyon, Karr/Haynes Canyon, Silver Springs, and Tularosa Creek, in Otero County; and Alamosa Creek, in Socorro County (Bridge 2001, p. 1; Sivinski and Bleakly 2004, p. 2; NMRPTC 2009, p. 1; Sivinski 1994, p. 1; Sivinski 1996, p. 2; Sivinski 2005, p. 1, 3-5; Sivinski 2009; USFWS 1998, p. 1; Worthington 2002, p. 1-3). Regulatory and Analytical Framework Regulatory Framework Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species is an endangered species or a threatened species. The Act defines an endangered species as a species that is “in danger of extinction throughout all or a significant portion of its range,” and a threatened species as a species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The Act requires that we determine whether any species is an endangered species or a threatened species because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence. These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species' continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects. We use the term “threat” to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term “threat” includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term “threat” may encompass—either together or separately—the source of the action or condition or the action or condition itself. However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an “endangered species” or a “threatened species.” In determining whether a species meets either definition, we must evaluate all identified threats by considering the expected response by the species, and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species, such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the definition of an “endangered species” or a “threatened species” only after conducting this cumulative analysis and describing the expected effect on the species now and in the foreseeable future. The Act does not define the term “foreseeable future,” which appears in the statutory definition of “threatened species.” Our implementing regulations at 50 CFR 424.11(d) set forth a framework for evaluating the foreseeable future on a case-by-case basis. The term “foreseeable future” extends only so far into the future as the Service can reasonably determine that both the future threats and the species' responses to those threats are likely. In other words, the foreseeable future is the period of time in which we can make reliable predictions. “Reliable” does not mean “certain”; it means sufficient to provide a reasonable degree of confidence in the prediction. Thus, a prediction is reliable if it is reasonable to depend on it when making decisions. It is not always possible or necessary to define foreseeable future as a particular number of years. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider the timeframes applicable to the relevant threats and to the species' likely responses to those threats in view of its life-history characteristics. Data that are typically relevant to assessing the species' biological response include species-specific factors such as lifespan, reproductive rates or productivity, certain behaviors, and other demographic factors. Analytical Framework The SSA report documents the results of our comprehensive biological review of the best scientific and commercial data regarding the status of the species, including an assessment of the potential threats to the species. The SSA report does not represent a decision by the Service on whether the species should be listed as an endangered or threatened species under the Act. It does, however, provide the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act and its implementing regulations and policies. The following is a summary of the key results and conclusions from the SSA report; the full SSA report can be found at FWS-R2-ES-2018-0071 on http://www.regulations.gov. To assess Wright's marsh thistle viability, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency supports the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years), redundancy supports the ability of the species to withstand catastrophic events (for example, droughts, large pollution events), and representation supports the ability of the species to adapt over time to long-term changes in the environment (for example, climate changes). In general, the more resilient and redundant a species is and the more representation it has, the more likely it is to sustain populations over time, even under changing environmental conditions. Using these principles, we identified the species' ecological requirements for survival and reproduction at the individual, population, and species levels, and described the beneficial and risk factors influencing the species' viability. The SSA process can be categorized into three sequential stages. During the first stage, we evaluated the individual species' life-history needs. The next stage involved an assessment of the historical and current condition of the species' demographics and habitat characteristics, including an explanation of how the species arrived at its current condition. The final stage of the SSA involved making predictions about the species' responses to positive and negative environmental and anthropogenic influences. Throughout all of these stages, we used the best available information to characterize viability as the ability of a species to sustain populations in the wild over time. We use this information to inform our regulatory decision. Summary of Biological Status and Threats In this discussion, we review the biological condition of the species and its resources, and the threats that influence the species' current and future condition, in order to assess the species' overall viability and the risks to that viability. To assess Wright's marsh thistle viability and the risks to that viability, we reviewed the biological condition of the species and its resources, and the threats that influence the species' current and future condition. Wright's marsh thistle is a rare wetland species that grows in marshy habitats with year-round, water-saturated soils, at elevations between 3,450 and 7,850 feet (ft.) (1,150 and 2,390 meters (m)) in elevation (Sivinski 1996, p. 1; 2005a, pp. 3-4). It is usually associated with alkaline springs and seeps ranging from low desert up to ponderosa pine forest (Sivinski 2005a, p. 3). Wright's marsh thistle is an obligate of seeps, springs, and wetlands that have saturated soils with surface or subsurface water flow (Sivinski 1996a; Service 1998; Worthington 2002a, p. 2; NMRPTC 2009). Common associates include bulrush ( Scirpus spp.), beaked spikerush ( Eleocharis rostellata ), Pecos sunflower ( Helianthus paradoxus ), rush ( Juncus spp.), and cattail ( Typha spp.) (Sivinski 1996a, pp. 2-5; Sivinski and Bleakly 2004, p. 2; Worthington 2002a, pp. 1-2). Most of the areas occupied by Wright's marsh thistle are open cienéga or boggy margins of open water or along excavated drains. A few Wright's marsh thistle occur in cattail stands, and many occur in fairly open stands of common reed ( Phragmites australis ). Surprisingly, several hundred Wright's marsh thistle rosettes were found well within some very dense, tall stands of common reed in 2012 (Sivinski 2012, p. 33). Almost all of these were juvenile rosettes, and it appears that maturation and flowering is suppressed by the shade in dense patches of common reed (Sivinski 2012, p. 33). Therefore, we infer that rosettes can survive without as much direct sunlight as mature plants. Sufficient pollinators are needed to complete cross pollination of plants both within patches at each population and between subpopulations in the Santa Rosa population. Many generalist pollinators may visit Wright's marsh thistle (Sivinski 2017, pers. comm.). The most common pollinators of Wright's marsh thistle are bees, especially bumble bees ( Bombus spp.) (Sivinski 2017, pers. comm.). Bumble bees are strong fliers and may travel 1 mi (1.5 km) or more to patches of Wright's marsh thistle (Osborne et al. 2008), and thus could provide cross pollination and gene flow within the Santa Rosa population. Thus, depending on life stage, Wright's marsh thistle needs to have permanent root saturation; alkaline soils; full, direct, or nearly full sunlight; and abundant pollinators, including bumble bees. For Wright's marsh thistle to maintain viability, its populations or some portion thereof must be able to withstand stochastic disturbance. Resource needs that influence the resiliency of populations include constant soil saturation, alkaline soils, abundance of insect pollinators, and availability of direct sunlight. Additionally, secondary resource needs include agents of seed dispersal (wind, water, mammals, and birds) and water availability for seed germination. For more details on these resource needs and their impact on species viability, refer to chapter 2 of the SSA report (USFWS 2017, pp. 3-13). Factors that influence those resource needs will determine whether Wright's marsh thistle populations are able to sustain adequate numbers within habitat patches of adequate area and quality to maintain survival and reproduction in spite of disturbance, thereby increasing the resiliency of populations. Maintaining representation in the form of genetic or environmental diversity is important to maintain Wright's marsh thistle's capacity to adapt to future environmental changes. A healthy community of insect pollinators, particularly bees and butterflies, leads to genetic diversity by the process of cross pollination between patches within a population. The differences in flower color (and perhaps differences in mature plant maximum growth height) represent variation in ecological adaptability between the eastern and western populations of the thistle, and possibly also a form of genetic diversity. There is a need to maintain the genetic and environmental diversity between the eastern and western groups, as their potential genetic and life-history attributes may buffer the thistle's response to environmental changes over time. However, Wright's marsh thistle has likely lost genetic and environmental diversity as populations have been reduced or extirpated, and therefore maintaining the remaining representation in the form of genetic and environmental diversity may be important to the capacity of Wright's marsh thistle to adapt to future environmental change. Wright's marsh thistle needs to have multiple resilient populations distributed throughout its range to provide for redundancy. The more populations, and the wider the distribution of those populations, the more redundancy the species will exhibit. In addition, populations of the species can exhibit internal redundancy through the presence of multiple patches within the population. For example, the eastern populations of Wright's marsh thistle have multiple patches of occupied habitat within each population location, while the western populations typically have only one patch within each population location. The presence of multiple patches contributes to the ability of the population to maintain resiliency when faced with various risk factors. Redundancy reduces the risk that a large portion of the species' range will be negatively affected by a catastrophic natural or anthropogenic event at a given point in time. Species that are well-distributed across their historical range are considered less susceptible to extinction and have higher viability than species confined to a small portion of their range (Carroll et al. 2010, entire; Redford et al. 2011, entire). Influence Factors for Wright's Marsh Thistle The largest threats to the future viability of Wright's marsh thistle relate to habitat degradation from various stressors influencing the availability of the thistle's resource needs ( e.g., water availability). A brief summary of these primary stressors is presented below, followed by a table identifying the particular stressors, and the magnitude of those stressors, affecting each of the eight populations (see Table 1, below). We also include a discussion of current conservation measures for the thistle and any existing regulatory mechanisms that may ameliorate or reduce the impact of the stressors. For a full description of these stressors, refer to chapter 4 of the SSA report (USFWS 2017, pp. 39-56). Decreased Water Availability The drying of Wright's marsh thistle habitat over approximately the last 25 years has led to shrinking population boundaries, a reduction in the numbers of plants, and, in some cases, a loss of all individuals at several localities (Sivinski 1996, pp. 4-5; Sivinski 2005, pp. 3-4; Sivinski 2012, pp. 29-33). Because the thistle occurs only in areas that are water-saturated, populations have a high potential for extirpation when the habitat dries up. Loss of water from Wright's marsh thistle habitat occurs through changing precipitation patterns or drought, or as a result of human impacts from groundwater pumping (withdrawal) or diversion of surface water (which can lead to the degradation and extirpation of the species' habitat) (Sivinski 1996, p. 5; Sivinski 2005, p. 1; USFS 2008, p. 19). Drought, along with ground and surface water depletion, serves to decrease the amount of water available in Wright's marsh thistle habitat, which impacts the species' need for permanent root saturation. Reductions in precipitation and temperature are predicted to continue in the future, increasing these impacts to Wright's marsh thistle (NOAA 2014, unpaginated). In addition to experiencing periods of drought, much of the habitat of Wright's marsh thistle has been, and continues to be, severely altered and degraded due to past and present land and water management practices that deplete ground and surface water. For specific examples for each population, please refer to chapter 4, section 1 of the SSA report (USFWS 2017, pp. 39-56). All of the extant localities may be affected by long-term drought, whereas four of the largest localities at Blue Spring, Bitter Lake National Wildlife Refuge (NWR), Santa Rosa, and Alamosa Creek have the potential to be further modified by ongoing and future water management practices. Drought —According to the United States Drought Monitor (U.S. Drought Monitor 2017), large portions (over 30 percent) of New Mexico, including Wright's marsh thistle habitat, experienced drought from approximately April 2011 until mid-2014. Within New Mexico, monsoonal summer precipitation can be very patchy, with some areas receiving considerably less rainfall than others. The three eastern populations of Wright's marsh thistle in the Pecos River valley have not been affected by drought to the same extent as the western populations, because the Pecos River valley's marshy habitats are maintained by large regional aquifers. The western populations often rely on wet periods during summer months to recharge the ground water. In the Sacramento Mountains, these wet periods are extremely rare events (Newton et al. 2012, p. 66), and drought has notably impacted the area's groundwater tables (USFS 2008, p. 22). The seasonal distribution of yearly precipitation in this mountain range can result in temporary drought conditions and reduced water availability for some of the area's Wright's marsh thistle localities. Wright's marsh thistle is vulnerable to reduced water availability because the species occupies relatively small areas of spring or seep habitat in an arid region that is plagued by drought and ongoing aquifer withdrawals ( e.g., in the Roswell Basin). If future episodes of drought increase in frequency, duration, or intensity, additional dewatering and decrease of the thistle's habitat are likely to occur. Projected increases in temperature and increased variability in precipitation in locations where Wright's marsh thistle is currently located demonstrate the vulnerability of the habitat to reductions in water availability. The vulnerability of the habitat to increased drought depends, in large part, on the sources of their water supply. Habitats that are sustained mainly by precipitation in the Sacramento Mountains (five populations) are the most likely to be affected by increased drought, a significant stressor to these populations. Alternatively, localities that are supplied primarily by groundwater in the Pecos River Basin (three populations) will likely have the greatest resistance to increased drought due to water stored in aquifers, making drought a less significant stressor to the populations ( e.g., see Poff et al. 2002, pp. 18-19). Ground and Surface Water Depletion —Wright's marsh thistle is a wetland plant that can be extirpated when its habitat dries out. The effects of ongoing and past maintenance and operation of existing water diversions can also limit the size of thistle populations (USACE 2007, p. 29). Loss and degradation of habitat from water diversion or draining of wetlands that historically supported Wright's marsh thistle has been reported in Chaves, Otero, and Sierra Counties, New Mexico (Sivinski 1994, pp. 1-2; 1996, p. 4; 2005, p. 1; 2006, p. 4). The extent of ongoing and future water diversions is related to the extent of urban and agricultural development within a given area. The significance of the impacts of this stressor to each population can be correlated to the number of water diversions within the area for both urban and agricultural purposes. Specific details on impacts to each population can be found in chapter 4 of the SSA report (USFWS 2017, pp. 39-56). The alteration and loss of Wright's marsh thistle habitat from groundwater and surface water depletion will continue and likely increase in the foreseeable future. This projection is based on current and future development plans in areas surrounding each population; specific details are located in chapter 4 of the SSA report (USFWS 2017, pp. 39-56). Effects of Climate Change —Because Wright's marsh thistle occupies relatively small areas of spring or seep habitat in an arid region plagued by drought and ongoing aquifer withdrawals ( e.g., in the Roswell Basin), it is expected to be vulnerable to changes in climate that decrease the availability of water to suitable habitat. Population sizes have decreased in springs and wet valleys affected by drought in at least three canyons of the Sacramento Mountains, New Mexico. Similar water loss may affect other Wright's marsh thistle localities (USFWS 2017, p. 45). If changes in climate lead to future drought, additional dewatering and reduction of habitat for the thistle may occur. We obtained downscaled climate projections (as of 2018) for our analysis of Wright's marsh thistle from the Climate Explorer program in the U.S. Climate Resilience Toolkit (NOAA 2014, unpaginated). The Climate Explorer is based on 32 models and produces a mean that can be used to predict changes in air temperature and precipitation for counties, cities, or specific zip codes in the contiguous United States and portions of Canada and Mexico. Scenario representative concentration pathway (RCP) 4.5 is a moderate emissions scenario for atmospheric concentrations of greenhouse gases. Based on climate change projections for emissions at RCP 4.5, all current locations of Wright's marsh thistle show increases in mean daily maximum temperature over the next 50 years by approximately 1.7 degrees Celsius (°C) (3 degrees Fahrenheit (°F)). For example, in Chaves County, New Mexico, mean daily maximum temperature is expected to rise from approximately 24.7 °C (76.5 °F) in 2010, to approximately 26.9 °C (80.5 °F) in 2060. Climate change scenario RCP 8.5 projects climate conditions based on higher carbon dioxide (CO 2 ) emissions. This scenario results in a projected change of approximately 3 °C (5.5 °F) over the next 50 years in Chaves County, New Mexico, leading to a mean daily maximum of 28.2 °C (82.7 °F). While mean daily precipitation is not expected to vary drastically over the next 50 years, the variability in precipitation throughout the year will increase. For example, in Otero County, mean daily average precipitation is projected to decrease during certain times of the year and increase during other times of the year relative to current conditions. In addition, the timing of maximum precipitation events may occur during different months than experienced in the past. This variability in precipitation will contribute to more periods of extreme drought and severe flooding events, potentially impacting the availability of water during times critical to the life-history processes of Wright's marsh thistle (NOAA 2014, unpaginated). Specific details on the effects of climate change are located in chapter 4 of the SSA report (USFWS 2017, pp. 39-56). Projected increases in temperature and increased variability in precipitation at locations where Wright's marsh thistle is currently located demonstrate the vulnerability of the species' habitat to changes in climate that will exacerbate the impact of existing stressors relating to water availability and withdrawals. Summary of Decreased Water Availability —In summary, ground and surface water withdrawal and potential future increases in the frequency, duration, or intensity of drought, individually and in combination, pose a threat to Wright's marsh thistle and its habitat in the future. In addition, as Wright's marsh thistle has small, isolated populations, we expect the stressor of decreased water availability to further impact the species' overall viability. Thus, we expect that this threat will likely remain a significant stressor to the thistle and will likely intensify in the foreseeable future. Livestock Grazing In the semi-arid southwestern United States, wet marshes and other types of Wright's marsh thistle habitat attract ungulates ( e.g., livestock, elk, and deer) because of the availability of water and high-quality forage (Hendrickson and Minckley 1984, p. 134). Livestock grazing occurs at Wright's marsh thistle localities in the Sacramento Mountains, Santa Rosa, Blue Springs, and Alamosa Springs. At the Santa Rosa locality, photographs indicate that the growth of Wright's marsh thistle and the integrity of its habitat have been negatively affected by livestock herbivory and trampling (Sivinski 2012, pp. 33-53). Dry periods likely increase the effects of livestock trampling and herbivory on Wright's marsh thistle when other water and forage plants are not available (see 75 FR 67925; November 4, 2010). Grazing may be more concentrated within habitats similar to those occupied by Wright's marsh thistle during drought years, when livestock are prone to congregate in wetland habitats or where forage production is greater than in adjacent dry uplands (USFS 2003, entire). Livestock may trample individual plants and eat the thistle when other green forage is scarce, and when the seedlings or rosettes are developing and abundant. Further, livestock may eat mature plant inflorescences (the complete flower head), which could reduce seed production. For example, the federally threatened Sacramento Mountains thistle ( Cirsium vinaceum ), which is also found in New Mexico and is associated with habitats similar to those occupied by Wright's marsh thistle (52 FR 22933; June 16, 1987), is eaten by livestock and appears to be the preferred forage at some times of the year. It may provide some of the only green forage during droughts (NMRPTC 2009, p. 2). Also, it is possible that livestock grazing within and adjacent to spring ecosystems could alter or remove habitat or limit the distribution of the thistle (USFWS 2017, pp. 49-50). The effects of grazing on Wright's marsh thistle depend on timing. Winter grazing (after seed dispersal and before seedling growth in spring) probably has a low effect on survival and reproduction, although there could be some trampling of rosettes, while spring and early summer grazing probably reduces growth, survival, and reproduction. Late summer and early fall grazing are most severe, as flowering plants typically set seed at this time; grazing during this period would inhibit reproduction. Finally, if a patch of Wright's marsh thistle was heavily grazed during the time of bolting or flowering over 2 or more consecutive years, the seed bank and long-term population trend in the affected patch could be negatively impacted. For example, observations of the impacts of grazing at some of the Wright's marsh thistle localities show that fewer thistles mature into flowering adults when the population experiences grazing pressure (Sivinski 2012, pp. 33-53). Livestock activities are considered a widespread stressor at the current time; localized impacts have been observed, and there is a high potential for negative effects to populations of Wright's marsh thistle. Increased use of wet springs and marshes by livestock during drought conditions constitutes a significant stressor to the thistle in the future. In summary, we find that livestock grazing poses a current and future threat to Wright's marsh thistle and its habitat through direct mortality and habitat degradation, and we expect that this threat will likely intensify at some localities (Sacramento Mountains, Santa Rosa, Blue Spring, Alamosa Springs) due to projected increases in drought periods that cause livestock to concentrate around Wright's marsh thistle localities. Because the thistle only occurs in small, isolated populations, the impacts of grazing could be a significant stressor to the species. Native and Nonnative Plants Some native and nonnative plants pose a threat to Wright's marsh thistle and its habitat through habitat encroachment and competition for resources at most localities. The native plants include cattails ( Typha spp.); nonnative species include the common reed ( Phragmites australis ), purple loosestrife ( Lythrum salicaria ), Russian olive ( Elaeagnus angustifolia ), saltcedar ( Tamarix spp.), and Russian thistle ( Salsola spp.) (Sivinski 1996, p. 6). These particular native and nonnative species all have the same effect on Wright's marsh thistle by functioning as invasive species with respect to the thistle's habitat. Although cattails and Wright's marsh thistle may have evolved in the same area, decreased water availability has altered habitat conditions such that cattails have a competitive advantage in Wright's marsh thistle habitat. These plants present unique challenges and potential threats to the habitat, including shade effects on Wright's marsh thistle seedlings and rosettes. The common reed, a nonnative, invasive plant introduced from Europe and Asia, increases the potential for wildfire and is increasing in density at some locations in New Mexico. The increased occurrence of the common reed in Wright's marsh thistle habitat is a current threat to the species due to increased wildfire risk, competition, and changes in hydrology (impacts on degree of soil saturation). The impact that common reed causes as compared to other nonnative plant species, especially when habitat is disturbed through burning or drying is greater than other invasive species. The dense plant growth of the common reed blocks sunlight to other plants growing in the immediate area and occupies all available habitat (PCA 2005, p. 1). The impacts from common reed vary based on location, with the greatest impacts occurring at Santa Rosa, Bitter Lake NWR, Blue Spring, and Tularosa Creek. We expect that the threats caused by native and nonnative plant competition and habitat loss will likely continue and possibly intensify, due to lack of vegetation management at several locations (Santa Rosa, Blue Spring, Tularosa Creek) and the pervasiveness of native and nonnative plants despite ongoing efforts for habitat restoration at other locations (Bitter Lake NWR). Because Wright's marsh thistle populations are relatively small and isolated, the impacts of native and nonnative plants could pose a significant stressor to the thistle despite ongoing efforts for habitat restoration at other locations (Bitter Lake NWR). Because Wright's marsh thistle populations are relatively small and isolated, the impacts of native and nonnative plants could pose a significant stressor to the thistle. Attempts to manage native and nonnative plants through herbicide use and mowing may also exacerbate negative effects to Wright's marsh thistle, as these techniques are difficult to preferentially apply to only the native and nonnative plant species when habitat is shared. In addition, we expect increases in drought periods to exacerbate the negative effects of this stressor. Oil and Gas Development and Mining Oil and gas development occur within and adjacent to ( i.e., within 10 miles) some areas occupied by Wright's marsh thistle, including Santa Rosa, Bitter Lake NWR, and Blue Spring (New Mexico State Lands Office 2017, unpaginated; NMDGF 2007, pp. 18-19; NMDGF 2005, p. 35). There are also mining activities adjacent to ( i.e., within 5 miles) other occupied areas such as a potential beryllium mine at Alamosa Springs, and subsurface drilling and exploration of the mineral bertrandite on Sullivan Ranch near Alamosa Springs (New Mexico Mining and Minerals Division 2010, unpaginated; New Mexico State Lands Office 2017, unpaginated; Sivinski 2012, p. 9). As of July 8, 2021, the Service has no information on any new actions towards developing the potential beryllium mine at Alamosa Springs. The main impacts from oil and gas development and mining include the potential for water quality contamination. Contamination from oil and gas development has been observed within close proximity ( i.e., within 16 kilometers (km) (10 miles (mi)) of some Wright's marsh thistle localities (New Mexico State Lands Office 2017, unpaginated). While laws and regulations related to water quality have reduced the risk of contamination in and near occupied locations from oil and gas production, a spill that could impact these habitats is still likely based on the high volume of oil and gas leases near the locations. Potential contamination from both oil and gas development and mining could have several impacts on plants (such as Wright's marsh thistle), including the following: Increased available nutrients, which may favor competitive or nonnative plant growth; altered soil pH (either higher or lower), which can kill plants; absorption of chemicals, which can poison plants or cause poor growth or dead spots on leaves; and plant mortality. In addition, oil and other contaminants from development and drilling activities throughout these areas could enter the aquifer supplying the springs and seeps inhabited by Wright's marsh thistle when the limestone layers are pierced by drilling activities. An accidental oil spill or groundwater contamination has the potential to pollute water sources that support Wright's marsh thistle, while mining activities could alter or destroy habitat. The largest habitat area occupied by Wright's marsh thistle is less than 16 (ha) (40 ac), and more than half the known populations are less than 2 ha (5 ac) in size. Even a small, localized spill has the potential to contaminate and destroy a population. The loss of even one of the eight populations would result in loss of representation and redundancy to the species as a whole. Because this species is comprised of small, isolated populations, these stressors could potentially negatively affect the thistle, but it is unclear whether these impacts would be localized or widespread stressors, as the interaction between contaminant spills and groundwater and surface water hydrology is poorly understood. Therefore, we have determined that oil and gas development and mining functions as a stressor to the future viability of the species via impacts to water sources that provide habitat for Wright's marsh thistle. Table 1—Stressors Impacting Each of the Eight Populations of Wright's Marsh Thistle [USFWS 2017, pp. 39-56] Population Stressors to population Decreased water availability Drought Groundwater and surface water depletion Effects of climate change Livestock grazing Native and nonnative plants Oil and gas development Eastern Populations Santa Rosa Basin XX XX XX XXX XX X Bitter Lake NWR XX XX XX XX XX Blue Spring XX XXX XX XX X XX Western Populations Alamosa Springs XXX XX XX X X Tularosa Creek XXX XX XX X Silver Springs XXX XXX XX X La Luz Canyon XXX XXX XX X Karr/Haynes Canyon XXX XXX XX X X Note: XXX indicates a significant stressor to the population, XX indicates a moderate stressor to the population, and X indicates a mild stressor to the population. Conservation Measures and Regulatory Mechanisms Minimal conservation of Wright's marsh thistle is occurring at the Federal level. The Bitter Lake NWR manages invasive reeds in their moist soil/wetland units where the species is located. This management helps increase sunlight availability and decrease competition with nonnative species. Bitter Lake NWR also recently received a grant to complete seed collection efforts for Wright's marsh thistle. The Lincoln National Forest does not have active conservation for the thistle but implements a 61-meter (m) (200-foot (ft)) buffer around occupied sites when projects occur within or near occupied areas. At the State level, Wright's marsh thistle is listed as endangered, under the authority of the New Mexico Statutes Annotated 1978, at title 19 of the New Mexico Administrative Code at chapter 21, part 2, section 9 (19 NMAC 21.2.9). The provisions in New Mexico State law prohibit the taking of endangered plants on all lands of New Mexico (except Tribal lands), except under valid permit issued by the State, and encourage conservation by State government agencies. In this instance, “taking” means the removal, with the intent to possess, transport, export, sell, or offer for sale. Furthermore, if Wright's marsh thistle is listed under the Act, the State may enter into agreements with Federal agencies to administer and manage any area required for the conservation, management, enhancement, or protection of listed species. Funds for these activities could be made available under section 6 of the Act (Cooperation with States). Thus, the Federal protection afforded to this plant by listing it as a threatened species will be reinforced and supplemented by protection under State law. In addition to the State endangered listing for Wright's marsh thistle, some protection is offered to the species through title 19 of the New Mexico Administrative Code at chapter 15, part 2 (19 NMAC 15.2), which outlines general environmental provisions for water and wildlife relating to oil and gas operations, including information on methods to reduce risk of contamination to the surrounding habitat. While 19 NMAC 15.2 reduces the risks associated with oil and gas production to nearby occupied locations of the thistle, the high volume of oil and gas leases near these sites means the risk of impacts from a spill still persist. Current Condition of Wright's Marsh Thistle To determine the species' current condition, we ranked each population based on six factors relating to population and habitat variables: habitat quantity, number of patches, abundance, reproduction, permanent root saturation, and full sun. For each of these six factors, we defined criteria for low, moderate, and high conditions, which are outlined in table 3.3 in chapter 3 of the SSA report (USFWS 2017 pp. 35-36). These criteria were used to determine an overall condition for each of the eight extant populations for which we had sufficient information. Three additional populations of Wright's marsh thistle were identified during the public comment period; however, due to insufficient information associated with these three populations, we were unable to determine an overall condition. The overall condition of a population refers to the estimated likelihood of persistence over time. We define a population in high overall condition to have a greater than 90 percent likelihood of persistence over the next 25 years (in other words, a 10 percent or less likelihood of extirpation). For a population in moderate condition, we estimate that the likelihood of persistence over the next 25 years would be approximately 66 to 90 percent (10 to 33 percent likelihood of extirpation). For a population in low condition, we estimated a likelihood of persistence of approximately 25 to 66 percent over the next 25 years (33 to 75 percent likelihood of extirpation), and a population in very low condition to have a likelihood of persistence of approximately 0 to 25 percent over the next 25 years (75 to 100 percent likelihood of extirpation). The best available information indicates that Wright's marsh thistle is currently found at eight localities in New Mexico, as well as three new potential localities (one in New Mexico, one in Texas, and one in Mexico). We have very little information on these new localities, as further explained under Summary of Comments and Recommendations below; as a result, one potential new locality in New Mexico (associated with a Natural Resources Conservation Service conservation easement) and the other two potential localities in Texas and Mexico did not weigh heavily into our analysis of the status of the species because their presence has not been verified in terms of populations size and habitat. We concluded that the plant has been extirpated in Arizona and two locations in New Mexico. According to our current condition rankings outlined in chapter 3 of the SSA report (USFWS 2017, pp. 14-38), three of the eight extant populations in New Mexico were determined to have moderate resiliency, two have low resiliency, and three have very low resiliency and are at risk of extirpation. Across its range, the thistle demonstrates genetic and environmental diversity (representation) resulting in two distinct phenotypes in the eastern and western populations, as described above. Within the two representation areas (east and west), three populations are extant in the east, and five populations are extant in the west. While there is greater redundancy in terms of number of populations in the western phenotype, the five extant populations in the western representation area are much smaller in both the area occupied and population size. Therefore, the western populations are less resilient. This circumstance impacts the overall viability of the species by reducing the overall resiliency of the thistle to stochastic events. Future Scenarios Considered As there are a range of possibilities regarding the intensity of stressors acting on the populations ( i.e., decreased water availability to habitat, ungulate grazing, native and nonnative plants, oil and gas development, and mining), we forecast Wright's marsh thistle's resiliency, representation, and redundancy under four plausible scenarios in the SSA report. For these scenarios, we considered four different trajectories for all threats acting on the species ( i.e., all threats increasing at two different rates, decreasing, or remaining at the current level). We did not look at interactions between threats ( i.e., one threat increasing with another threat decreasing), as data were not sufficient for this type of analysis, but we did combine the various threat ratings to provide an overall population condition rating using professional judgment. These four scenarios incorporate the best available information on projection of threat data up to 50 years in the future. Sources of data include, but are not limited to, development (urban, agricultural, oil and gas and mining) plans for various areas and climate change models. For example, we referenced the City of Alamogordo's 50-year development plan for projections of future water withdrawals. With regard to climate change models, we used a high to low emissions climate change scenarios from the 2017 U.S. Climate Resilience Toolkit, which provides a range of projections for temperature and precipitation through 2100 (NOAA 2014, unpaginated). While the U.S. Climate Resilience Toolkit (which was accessed in 2017) used older data, current IPCC reports project similar trends to the climate models that we used in the SSA report (IPCC 2021, p. 14). We also used the U.S. Geological Survey's Monthly Water Balance Model Futures Portal that provides projections out to the year 2095 for changes in evapotranspiration (USGS 2017, entire). Some, but not all, of the threats could be projected beyond 50 years into the future. We can project availability of water resources and effects from climate change (temperature and reduced precipitation) beyond 50 years into the future. However, given our knowledge of the species, their response to known threats, and the future trends of these threats, we determined that 50 years was an appropriate timeframe for our analysis. Our future scenarios were based on the aggregation of all the threats considered, rather than individual threats. Therefore, to develop our future scenarios, we only used projection information up to 50 years into the future, the timeframe that includes projections for all future threats and for which we could predict the expected future resiliency and overall condition for each population based on our knowledge of the species' expected response to identified threats. First, the “Continuing Current Conditions” scenario projects the condition of Wright's marsh thistle populations if the current risks to population viability continue with the same trajectory as experienced currently. Decreased water availability continues to impact the populations via continuing levels of drought, along with ground and surface water depletion. Grazing continues where it has been occurring, and the impacts will accumulate. Competition from native and nonnative plants continues, along with any current impacts from oil and gas development. For this scenario, we used the mean level of projected values in temperature (an increase in mean daily maximum temperature of approximately 0.83 °C (1.5 °F) over 50 years). Second, the “Optimistic” scenario projects the condition of Wright's marsh thistle populations if conservation measures are put in place to limit the impacts of current risks to population viability, including conservation efforts to address decreased water availability, livestock grazing, and competition with native and nonnative plants. For this scenario, we used the low level of projected values in temperature (an increase in mean daily maximum temperature of approximately 0.56 °C (1.0 °F) over 50 years and increases in mean monthly potential evapotranspiration of 0 to 10 millimeters (mm) (0 to 0.4 inches (in)) over 50 years), leading to less severe effects of drought on the riparian ecosystems of which Wright's marsh thistle is a part. Third, the “Major Effects” scenario projects the condition of Wright's marsh thistle if stressors on the populations are increased. We expect a decrease in water availability, along with increased negative impacts from grazing, native and nonnative plants, oil and gas development, and mining. For this scenario, we used the moderate level of projected values in temperature (an increase in mean daily maximum temperature of approximately 1.7 °C (3.0 °F) over 50 years, and increases in mean monthly potential evapotranspiration of 10 to 30 mm (0.4 to 1.2 in) over 50 years), with increased impacts of drought. Finally, the “Severe Effects” scenario projects the condition of Wright's marsh thistle populations under the assumption that stressors on the populations are highly increased. Compared to the “Major Effects” scenario, we expect a further decrease in water availability, along with further increased negative impacts from ungulate grazing, native and nonnative plants, oil and gas development, and mining. For this scenario, we used the high level of projected values in temperature (an increase in mean daily maximum temperature of approximately 2.8 °C (5.0 °F) over 50 years and increases in mean monthly potential evapotranspiration of 30 to 80 mm (1.2 to 3.1 in) over 50 years) with increased impacts of drought. Thus, we considered the range of potential likely scenarios that represent different possibilities for how the stressors outlined above may influence the future condition of the species. The results of this analysis for each scenario are presented below in Table 2. For specific details on how each scenario impacted the six factors (habitat quantity, number of patches, abundance, reproduction, permanent root saturation, and full sun) contributing to overall condition of each population, refer to chapter 5 of the SSA report (USFWS 2017, pp. 57-100). Table 2—Condition Ratings for Each of the Eight Populations of Wright's Marsh Thistle Under Four Possible Future Scenarios [USFWS 2017, pp. 57-100] Population Current condition Scenario 1: continuing current conditions Scenario 2: optimistic Scenario 3: major effects Scenario 4: 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 framework to guide our analysis of the scientific information documented in the SSA report, we have not only analyzed individual effects on the species, but we have also analyzed their potential cumulative effects. We incorporate the cumulative effects into our SSA analysis when we characterize the current and future condition of the species. Our assessment of the current and future conditions encompasses and incorporates the threats individually and cumulatively. Our current and future condition assessment is iterative because it accumulates and evaluates the effects of all the factors that may be influencing the species, including threats and conservation efforts. Because the SSA framework considers not just the presence of the factors, but to what degree they collectively influence risk to the entire species, our assessment integrates the cumulative effects of the factors and replaces a standalone cumulative effects analysis. Summary of Comments and Recommendations As discussed in the Supporting Documents, above, we received comments on the SSA report from one peer reviewer. We reviewed all comments we received from the peer reviewer for substantive issues and new information regarding Wright's marsh thistle and its critical habitat. The peer reviewer suggested we expand our descriptions of how condition scenarios were developed and how threats were assessed against the population ( e.g., at an individual population level or based on the eastern and western portions of the populations). We addressed their comments by providing clarifying information on how each condition scenario was developed and how threats were assessed at the population and range wide scales. The peer reviewer also provided additional information and clarification on the species biology and life history. Peer reviewer comments were incorporated into the final SSA report making our scenario descriptions, analysis, and conclusions stronger. We requested written comments from the public on the September 29, 2020, proposed rule (85 FR 61460) during a 60-day comment period that closed on November 30, 2020. We contacted appropriate Federal, State, and Tribal agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. We did not receive any requests for a public hearing. Our summary responses to the substantive comments we received on the September 29, 2020, proposed rule, are provided below. Comments simply providing support for, or opposition to, the proposed rule without any supporting information were not considered to be substantive and we do not provide a response. All substantive information provided during the comment period has either been incorporated directly into this final determination or is addressed below. Comments From States (1) Comment: Two States, New Mexico and Texas, commented that Wright's marsh thistle was collected in Presidio County, Texas, in 2003 and verified in 2018 (Nesom 2018, entire) and historically occurred in Pecos County, Texas. Per the comments, the Presidio County specimen was originally misidentified as a more common species, and upon reexamination the specimen was determined to be Wright's marsh thistle Similarly, the Pecos County, Texas, specimen was collected in 1849 and misidentified at the time of collection. Reexamination resulted in the specimen being identified as Wright's marsh thistle based on the same diagnostic morphology as the Presidio County specimen. Botanists from New Mexico and Texas agree with these determinations for both specimens. Our Response: We updated the final rule to reflect the identification of these two specimens from Texas, as they contribute to the historical and current distribution of Wright's marsh thistle. (2) Comment: The State of Texas commented that the population in Presidio County, which we were not aware of at the time of proposed listing and thus was not included in our proposed critical habitat designation, should not be included in the final critical habitat designation, because they claimed the population is rare but protected from threats, and critical habitat designation could impede voluntary conservation efforts. Our Response: We did not include this site as critical habitat for Wright's marsh thistle because we could not determine that this site meet the definition of critical habitat. While this location is not a new site (an herbarium specimen was collected in 2003), we were unaware that Wright's marsh thistle had been found in Presidio County, Texas, until we received this information about the rediscovery of the herbarium specimen and the diagnostic analysis conducted. Based on our review of the information provided, we incorporated the additional occurrence information for Presidio County, Texas, into this final rule. We were unable to verify the species information provided by the commenter or assess the location against the criteria established for designating critical habitat. Therefore, this location is not included within our final critical habitat designation. (3) Comment: The State of New Mexico commented that a population at Rattlesnake Springs at Carlsbad Caverns National Monument previously identified as a possible hybrid population was surveyed in 2012. No Wright's marsh thistle plants were found at the site; only Texas thistle ( Cirsium texanum ). Our Response: The SSA report for Wright's marsh thistle noted that the population at Rattlesnake Springs at Carlsbad Caverns was a hybrid between Wright's marsh thistle and Texas thistle (USFWS 2017, p. 14). The commenter did not provide us with any additional information such as an official report, note, photograph, or herbarium documentation that re-identifies this population as Texas thistle. (4) Comment: The State of New Mexico noted that Wright's marsh thistle was rediscovered in Mexico in 2018 in one of five locations surveyed (Sanchez-Escalante et.al. 2019, pp. 7-10). Our Response: The September 29, 2020, proposed rule (85 FR 61460) used the best available data regarding Wright's marsh thistle distribution and abundance, including the known historical and current population locations available to us during the development of the proposed rule. Based on this new information regarding rediscovery of the species in Mexico, we updated this final rule to reflect the identification of this location from Mexico, as it contributes to the historical and current distribution of Wright's marsh thistle. (5) Comment: The State of New Mexico stated that the proposed critical habitat around the old fishponds in Santa Rosa, New Mexico (Subunit 1a, Blue Hole Hatchery), is all but destroyed and will likely be completely destroyed given current development plans by the City of Santa Rosa. Hence, the commenter did not think the site could be considered essential to the conservation of the species. Our Response: We reviewed the available information pertaining to the biological needs of the species and habitat characteristics where this species is located at Blue Hole Hatchery (Subunit 1a) and found that the site still remains occupied and retains the necessary physical and biological features essential to the conservation of the species. Additionally, although the area has been disturbed, it is likely that Wright's marsh thistle seeds are persisting in the soils at the site, creating a seed bank. Designation of critical habitat at this location will help ensure that the remaining population and any associated seeds present at this site are protected into the future. Additionally, in areas that are occupied at the time of listing, critical habitat may be designated in areas that contain the necessary physical and biological features and may require special management or protection. The physical and biological features in this unit may require special management considerations to protect the species from impacts associated with ground and surface water depletion, as well as native and nonnative plant invasion. Special management or protection may include implementing watershed/wetland restoration efforts. Because this site is currently occupied and contains the physical and biological features essential to the conservation of the species and which may require special management considerations or protection, this location meets the definition of critical habitat (see Criteria Used To Identify Critical Habitat, below) and is included in this final designation. (6) Comment: The State of New Mexico provided information associated with a previously undocumented population on private lands in New Mexico on the Redhawk Conservation Easement which was placed in stewardship through the conservation easement program with the Natural Resources Conservation Service (NRCS). The commenter recommended that the Service designate this population, which contains several thousand plants, as critical habitat. Our Response: The Service reached out to NRCS and other individuals with knowledge of this population of Wright's marsh thistle to request information about the Redhawk Conservation Easement. To date, we have been unable to verify that the Redhawk Conservation Easement contains a population of Wright's marsh thistle and have not been able to assess if the physical and biological features exist at this location. Therefore, we made no changes to this final rule as a result of this comment, and this potential location is not designated as critical habitat in this rule. If we receive new information in the future as a result of additional surveys, we will analyze such information in the course of developing a recovery plan for the species or in 5-year reviews of its status. If we determine that the new information indicates that the area meets the Act's definition of critical habitat, we may choose to revise our critical habitat designation for this species following the Service's established processes for revising a critical habitat designation. (7) Comment: The State of New Mexico provided additional information regarding Wright's marsh thistle population trends at two cienegas in Santa Rosa, New Mexico. Specifically, the commenter noted that, based on 3- to 5-year trend data from Blue Hole and Ballpark cienegas, the trend appears to be declining despite extensive habitat restoration efforts. The commenter suggested that we should adjust our population condition ratings for the two cienegas in the Future Scenario 1 from moderate to low. Our Response: We relied on the best available data to develop the condition ratings referenced by the commenter in Table 2 of the September 29, 2020, proposed rule (85 FR 61460; see p. 61469). The four scenarios incorporated the best available information on projections of threat data up to 50 years into the future. We reviewed the information provided by the commenter, but we did not make any changes to this final rule as a result of the information because a relatively high number of patches of Wright's marsh thistle continue to exist at this location. After considering the information presented by the commenter, we conclude that the underlying information relied on to establish this condition rating is still accurate; however, the information provided by the commenter, as well as any new information that may become available to us, will be considered and analyzed in the course of developing a recovery plan for the species, or in a future 5-year review of its status. Comments From the Public (8) Comment: A commenter disagreed with our identification of stressors. Specifically, they stated that although the September 29, 2020, proposed rule (85 FR 61460) identified stressors including decreased water availability to habitat, ungulate grazing, native and nonnative plants, and oil and gas development and mining, the Service did not conduct enough research to make a determination of which stressor or combination of stressors would lead to a reduction in the size of sites. Our Response: We are required, by the Act, to make our listing determinations solely on the basis of the best commercial and scientific information available at the time the proposed rule is developed. The stressors identified in the September 29, 2020, proposed rule (85 FR 61460) are those that were known to be currently impacting the species when we published that proposal. While there may be other stressors that affect Wright's marsh thistle, we lacked sufficient information about those stressors and their effects to assess their impacts on the species. The SSA report assesses how individual stressors affect the species, as well as how stressors, in combination with each other, may act cumulatively to affect the species. The information upon which we based our rationale for including these stressors as the primary threats to Wright's marsh thistle is cited earlier in this final rule and more thoroughly discussed in chapter 4 of the SSA report (USFWS 2017, pp. 39-56). (9) Comment: A commenter stated their opposition to the 4(d) rule based on the fact that important water sources occur in the same locations where Wright's marsh thistle is growing. Wildlife and livestock use these waters for their survival, and some water sources have official water rights registered in the respective counties. The commenter stated that Federal agencies must be respectful of water rights as private property rights and seek alternative resolutions with all parties involved to sustain Wright's marsh thistle's survival. Our Response: As stated in the proposed and this final 4(d) rule, the prohibitions identified are limited to removing and reducing to possession the species from areas under Federal jurisdiction; maliciously damaging or destroying any such species on any such area; or removing, cutting, digging up, or damaging or destroying any such species on any other area in knowing violation of any law or regulation of any State law or regulation or in the course of any violation of a State criminal trespass law. Therefore, other than actions to the species committed in knowing violation of any State law or regulation or in the course of any violation of a State criminal trespass law, water rights will not be affected by the implementation of this 4(d) rule for Wright's marsh thistle. Also, in addition to the public comment period provided for the September 29, 2020, proposed rule (85 FR 61460), we have engaged with Federal, Tribal, and State governments, as well as nongovernmental organizations and the general public, by soliciting review and comment on the SSA report. We will continue to work with all interested parties, including private property owners, on the conservation of Wright's marsh thistle into the future. (10) Comment: A commenter stated the Service should list the Wright's marsh thistle as endangered rather than threatened because of the contraction in the species' range, reduction in genetic diversity, lack of effective conservation measures, and widespread alterations of waterways in the Southwest. Our Response: Based on the SSA report (USFWS 2017, entire), which characterizes the viability of the species now and into the future, we found the species did not meet the Act's definition of an endangered species. Currently, three Wright's marsh thistle populations have moderate resiliency, the species exhibits population redundancy, and there are two representative areas (east and west) that support genetic and environmental diversity. Therefore, the species is not currently in danger of extinction. Rather, the species meets the Act's definition of a threatened species because of the stressors that are affecting Wright's marsh thistle's long-term viability. No information we received during the public comment period led us to change that status determination. If we receive new information in the future, we will analyze such information in the course of developing a recovery plan for the species or in 5-year reviews of its status. If we determine that the new information indicates that the species' status should be changed from threatened to endangered, we would begin rulemaking to reclassify the species. (11) Comment: One commenter stated that we incorrectly set our “foreseeable future” at 25 years when we should have used 50 years, as was analyzed in the SSA report. Our Response: As discussed in the September 29, 2020, proposed rule (85 FR 61460), we looked at a variety of timeframes, including 50 years. We found that as the projections for the various stressors went past 25 years in the scenarios, the uncertainties associated with some of those projections, particularly water use and depletion, increased. Thus, 25 years was the maximum time that the Service could reasonably determine that future threats and the species' response to those threats are likely. We note, however, that Wright's marsh thistle was determined to be at risk of extinction in the 25-year timeframe and, as the primary projected threats would not likely be reduced or ameliorated past that point in time, the species would also be at risk of extinction in the 50-year timeframe. (12) Comment: One commenter stated that we should designate additional critical habitat for Wright's marsh thistle, including in Texas, in unoccupied portions of the historical range that have other species of flowering plants that serve to attract pollinators and provide patches between occupied habitat, and places that have no confirmed historical occurrences of the Wright's marsh thistle but that are known to have originally functioned as cienegas or other wetlands and that can be restored as such. These sites would then be suitable for reintroduction of the thistle. Another commenter requested that we expand the designation of critical habitat to include historical habitat in eastern Arizona, western parts of Texas, and Blue Springs State Park in Florida. Our Response: As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. In accordance with the Act and our implementing regulations at 50 CFR 424.12(b), we reviewed available information pertaining to the habitat requirements of the species and identified specific areas within the geographical area occupied by the species at the time of listing that contain the physical and biological features essential to the conservation of the species and may need special management or protection. We did not identify any areas outside the geographical area occupied by the species that are essential for Wright's marsh thistle conservation. For our SSA, we analyzed the best available data regarding Wright's marsh thistle distribution and abundance (including the known historical and current population locations) and considered the conservation needs of the species (USFWS 2017, pp. 14-28). Additionally, for this final rule, we reviewed and considered new information we received during the public comment period for the proposed rule (85 FR 61460) published September 29, 2020, including information on previously unknown Wright's marsh thistle occurrences in eastern Arizona, western parts of Texas, and an alleged occurrence at Blue Springs State Park in Florida. However, we found the information provided on the Texas and Arizona occurrences was not sufficient to substantiate that these sites meet the Act's definition of critical habitat for this species. For the Texas occurrence, although the specimen was first collected in 2003, we were unable to verify the species presence based on the information provided by the commenter or assess the location against the criteria established for designating critical habitat. The historical locations in Arizona are areas that are no longer occupied by the species and these historical locations lack the physical and biological features for the species. Please see Areas Occupied at the Time of Listing for a more in-depth explanation for both Texas and Arizona populations. To our knowledge, the species has never been documented in Florida and no physical evidence of the species was provided; therefore, we conclude based on the best scientific data available that Florida is not part of the range of the species. Furthermore, in the critical habitat discussion below, we found that the areas currently occupied by the species are sufficient to conserve the species. Thus, we do not plan to designate unoccupied areas as critical habitat as they are not essential for the species conservation. If new information becomes available, we will consider it when developing our recovery plan for the species. Determination of the Status of Wright's Marsh Thistle Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species meets the definition of an endangered species or a threatened species. The Act defines “endangered species” as a species in danger of extinction throughout all or a significant portion of its range, and “threatened species” as a species likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether a species meets the definition of “endangered species” or “threatened species” because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. Status Throughout All of Its Range We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats and the cumulative effect of the threats under the section 4(a)(1) factors to Wright's marsh thistle. Wright's marsh thistle is a narrow endemic (restricted to a small range) with a historical, documented decline. The historical range of the species included 10 locations in New Mexico, 2 locations in Arizona, and 2 locations in Mexico. Wright's marsh thistle has been extirpated from all historical locations in Arizona and Mexico, as well as two locations in New Mexico. In addition, the currently extant populations have declined in population numbers over time based on comparisons between 1995 and 2012 surveys (Sivinski 1996, entire; Sivinski 2012, entire). As a result, the current extant area of the remaining eight populations has contracted in recent years and is currently approximately only 43 ha (106 ac). Of the remaining eight extant populations, three have moderate resiliency, two have low resiliency, and three have very low resiliency and are likely at risk of extirpation (USFWS 2017, pp. 36). The species historically had representation in the form of two morphologically distinct and geographically separate forms (eastern and western populations); the species continues to maintain representation currently in these forms, although population sizes have decreased. Population redundancy is maintained across these representation areas, as well. Wright's marsh thistle is facing threats across its range that have led to reduced resiliency, redundancy, and representation. Wright's marsh thistle faces threats from habitat degradation due to decreased water availability, livestock grazing, native and nonnative plants, and oil and gas development and mining (Factor A). These threats, which are expected to be exacerbated by continued drought and the effects of climate change (Factor E), were important factors in our assessment of the future viability of Wright's marsh thistle. In addition, small, isolated populations and lack of connectivity contribute to the thistle's low resiliency to stochastic events (Factor E). We expect a further decrease in water availability, along with increased negative impacts from grazing, native and nonnative plants, oil and gas development, and mining. Given current and anticipated future decreases in resiliency, populations would become more vulnerable to extirpation from stochastic events, in turn, resulting in concurrent losses in representation and redundancy. The range of plausible future scenarios of the species' habitat conditions and population factors suggest possible extirpation in as many as five of eight currently extant populations. The most optimistic model projected no change in resiliency for the eight populations. As assessed in the SSA report and displayed above in Table 2, the current condition rankings for the eight extant populations show that three populations are in moderate condition, two population are in low condition, and three populations are in very low condition. Wright's marsh thistle exhibits representation across two morphologically distinct and geographically separate forms. While threats are currently acting on the thistle throughout its range, the three eastern populations (Santa Rosa, Bitter Lake, and Blue Springs) were found to have moderate resiliency for their current condition. Populations with moderate resiliency have some ability to withstand stochastic events and continue to contribute to overall redundancy for the species. The threats currently acting on the thistle are likely to reduce the size of some populations as water availability becomes restricted, but the populations currently maintain sufficient resiliency. Therefore, we did not find that the thistle is currently in danger of extinction throughout all of its range, based on the current condition of the species; thus, an endangered status is not appropriate. Wright's marsh thistle is facing threats across its range that have led to reduced resiliency, redundancy, and representation. According to our assessment of plausible future scenarios, the species is likely to become an endangered species within the foreseeable future throughout all of its range. For the purposes of this determination, the foreseeable future is considered approximately 25 years into the future. This timeframe was arrived at by looking at the various future projections associated with data from the Intergovernmental Panel on Climate Change (IPCC), U.S. Climate Resilience Toolkit, future development plans from the City of Alamogordo and Santa Rosa, and grazing management information from the U.S. Forest Service. These data sources covered a variety of timeframes, but all covered a span of at least 50 years. We, therefore, looked at the projections from these sources in each of our future scenarios out to three-time steps: 10 years, 25 years, and 50 years. We found that as the projections for the various stressors went past 25 years in the scenarios, the uncertainties associated with some of those projections, particularly water use and depletion, increased. Our analysis of the species' current and future conditions shows that resiliency, representation, and redundancy for Wright's marsh thistle are likely to continue to decline to the degree that the thistle is likely to become in danger of extinction within the foreseeable future throughout all of its range. While the “Optimistic” scenario resulted in two of the populations with moderate current condition improving to high condition due to increased conservation measures, the other three scenarios all resulted in decreased resiliency for some if not most populations. The “Continuing Current Conditions” scenario resulted in one of the current eight extant populations becoming extirpated, the “Major Effects” scenario resulted in three of the current eight extant populations becoming extirpated, and the “Severe Effects” scenario resulted in five of the current eight extant populations becoming extirpated. Based on our understanding of the increasing trends in threats as analyzed into the foreseeable future ( i.e., 25 years), the “Continuing Current Conditions” scenario becomes less likely. The decreased resiliency of populations projected in three of the four scenarios would lead to subsequent losses in redundancy and representation, and an overall decline in species viability in the foreseeable future. Further details on the likelihood of scenarios can be found in chapter 5 of the SSA report (USFWS 2017, pp. 57-59). Due to the continuation of threats at increasing levels, we anticipate a severe future reduction in the thistle's overall range and the extirpation of several populations. Furthermore, we anticipate that the variety of factors acting in combination on the remaining habitat and populations are likely to reduce the overall viability of the species to a very low level. In addition, the conservation measures currently in place are not adequate to overcome the negative impacts from increasing threats, and future conservation measures are not considered highly plausible. The risk of extinction will be high because the remaining populations are small and isolated and have limited or no potential for recolonization after local population extirpations. Thus, after assessing the best available information, we determine that Wright's marsh thistle is not currently in danger of extinction but is likely to become in danger of extinction within the foreseeable future, throughout all of its range, and it, therefore, meets the Act's definition of a threatened species. Status Throughout a Significant Portion of Its Range Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. The court in Center for Biological Diversity v. Everson, 435 F. Supp. 3d 69 (D.D.C. 2020) ( Everson ), vacated the aspect of the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (Final Policy; 79 FR 37578; July 1, 2014) that provided that the Service does not undertake an analysis of significant portions of a species' range if the species warrants listing as threatened throughout all of its range. Therefore, we proceed to evaluating whether the species is endangered in a significant portion of its range—that is, whether there is any portion of the species' range for which both (1) the portion is significant; and (2) the species is in danger of extinction in that portion. Depending on the case, it might be more efficient for us to address the “significance” question or the “status” question first. We can choose to address either question first. Regardless of which question we address first, if we reach a negative answer with respect to the first question that we address, we do not need to evaluate the other question for that portion of the species' range. Following the court's holding in Center for Biological Diversity, we now consider whether there are any significant portions of the species' range where the species is in danger of extinction now ( i.e., endangered). In undertaking this analysis for Wright's marsh thistle, we choose to address the status question first—we consider information pertaining to the geographic distribution of both the species and the threats that the species faces to identify portions of the range where the species may be endangered. We evaluated the range of the Wright's marsh thistle to determine if the species is in danger of extinction now in any portion of its range. The range of a species can theoretically be divided into portions in an infinite number of ways. We focused our analysis on portions of the species' range that may meet the definition of an endangered species. For Wright's marsh thistle, we considered whether the threats or their effects on the species are greater in any biologically meaningful portion of the species' range than in other portions such that the species is in danger of extinction now in that portion. We examined the following threats: decreased water availability from drought and water management practices ( e.g., groundwater pumping and surface water diversions) (Factor A); native and nonnative plants (Factor A and E); livestock grazing (herbivory; Factor C); oil, gas, and mining development (Factor A and E); and the cumulative effects of these threats. Population condition differences exist between the eastern and the western portions of the range. The populations in the western part of the range of Wright's marsh thistle are all in lower condition—either low or very low—than those in the eastern portion of the species' range, are all in moderate or better condition. Therefore, because the western populations have a lower resiliency and, therefore, higher risk of extirpation, the western populations may have a different status. We then proceeded to the significance question, asking whether there is substantial information indicating that the western portion of the range may be significant. As an initial note, the Service's most recent definition of “significant” within agency policy guidance has been invalidated by court order (see Desert Survivors v. Dep't of the Interior, No. 16-cv-01165 (N.D. Cal. Aug. 24, 2018). Therefore, for purposes of this analysis the Service is screening for significant portions of the range by applying any reasonable definition of “significant.” Biological importance/significance is often considered in terms of resiliency, redundancy, or representation. We evaluated the available information about the western populations of Wright's marsh thistle in this context, assessing its significance in terms of these conservation concepts, and determined the information did not substantially indicate it may be significant. The five populations in the western area comprise a total of 7.2 acres, out of a total of 108.3 acres that the species currently occupies: 6.7 percent of the species' range. The small area occupied by the western populations relative to the species' overall range led us to conclude that this portion of the Wright's marsh thistle range is not significant in terms of its overall contribution to the species' resiliency, redundancy, and representation. Therefore, because we could not answer the significance question in the affirmative, we conclude that the western population does not warrant further consideration as a significant portion of the range. Overall, we found no substantial information that would indicate the western populations may be significant. While this area provides some contribution to the species' overall ability to withstand catastrophic or stochastic events (redundancy and resiliency, respectively), the species has larger populations that occupy larger areas in the east. Therefore, because we could not answer both the status and significance questions in the affirmative, we conclude that the western portion of the range does not warrant further consideration as a significant portion of the range of Wright's marsh thistle. Therefore, no portion of the species range provides a basis for determining that the species is in danger of extinction in a significant portion of its range, and we determine that the species is likely to become in danger of extinction within the foreseeable future throughout all of its range. Determination of Status Our review of the best available scientific and commercial information indicates that Wright's marsh thistle meets the Act's definition of a threatened species. Therefore, we are listing Wright's marsh thistle as a threatened species in accordance with sections 3(20) and 4(a)(1) of the Act. Available Conservation Measures Conservation measures provided to species listed as endangered or threatened under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness and conservation by Federal, State, Tribal, and local agencies; private organizations; and individuals. The Act encourages cooperation with the states and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below. The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Section 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self- sustaining, and functioning components of their ecosystems. Recovery planning includes the development of a recovery outline shortly after a species is listed and subsequent preparation of a draft and final recovery plan. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of when a species may be ready for reclassification from endangered to threatened (“downlisting”) or for removal from protected status (“delisting”), and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be available on our website ( https://www.fws.gov/program/endangered-species ), or from our New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ). Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration ( e.g., restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands. Funding for recovery actions for this species will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, states within which Wright's marsh thistle occur including New Mexico and Texas will be eligible for Federal funds to implement management actions that promote the protection or recovery of Wright's marsh thistle. Information on our grant programs that are available to aid species recovery can be found at: https://www.fws.gov/service/financial-assistance. Please let us know if you are interested in participating in recovery efforts for Wright's marsh thistle. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT ). Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service. Federal agency actions within Wright's marsh thistle habitat that may require conference or consultation, or both as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the U.S. Fish and Wildlife Service and U.S. Forest Service; issuance of section 404 Clean Water Act (33 U.S.C. 1251 et seq. ) permits by the U.S. Army Corps of Engineers; and construction and maintenance of roads or highways by the Federal Highway Administration. It is our policy, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a listing on proposed and ongoing activities within the range of the species. The discussion below regarding protective regulations under section 4(d) of the Act complies with our policy. II. Final Rule Issued Under Section 4(d) of the Act Background Section 4(d) of the Act contains two sentences. The first sentence states that the Secretary shall issue such regulations as [she] deems necessary and advisable to provide for the conservation of species listed as threatened. The U.S. Supreme Court has noted that statutory language like “necessary and advisable” demonstrates a large degree of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)). Conservation is defined in the Act to mean the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Additionally, the second sentence of section 4(d) of the Act states that the Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 9(a)(1), in the case of fish or wildlife, or section 9(a)(2), in the case of plants. Thus, the combination of the two sentences of section 4(d) provides the Secretary with wide latitude of discretion to select and promulgate appropriate regulations tailored to the specific conservation needs of the threatened species. The second sentence grants particularly broad discretion to the Service when adopting the prohibitions under section 9. The courts have recognized the extent of the Secretary's discretion under this standard to develop rules that are appropriate for the conservation of a species. For example, courts have upheld rules developed under section 4(d) as a valid exercise of agency authority where they prohibited take of threatened wildlife or include a limited taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007 U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do not address all of the threats a species faces (see State of Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when the Act was initially enacted, “once an animal is on the threatened list, the Secretary has an almost infinite number of options available to [her] with regard to the permitted activities for those species. The Secretary may, for example, permit taking, but not importation of such species, or [she] may choose to forbid both taking and importation but allow the transportation of such species” (H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973). Exercising this authority under section 4(d), the Service developed a rule that is designed to address Wright's marsh thistle's specific threats and conservation needs. Although the statute does not require the Service to make a “necessary and advisable” finding with respect to the adoption of specific prohibitions under section 9, we find that this rule, as a whole, satisfies the requirement in section 4(d) of the Act to issue regulations deemed necessary and advisable to provide for the conservation of the Wright's marsh thistle. As discussed above under Summary of Biological Status and Threats, the Service has concluded that Wright's marsh thistle is likely to become in danger of extinction within the foreseeable future primarily due to habitat loss and modification. The provisions of this 4(d) rule will promote conservation of the species by encouraging management of the landscape in ways that meet landowner's management priorities while providing for the conservation needs of Wright's marsh thistle. The provisions of this rule are one of many tools that the Service will use to promote the conservation of the Wright's marsh thistle. Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action that is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, Tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq. ) or a permit from the Service under section 10 of the Act) or that involve some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency). Federal actions not affecting listed species or critical habitat—and actions on State, Tribal, local, or private lands that are not federally funded, authorized, or carried out by a Federal agency—do not require section 7 consultation. This obligation does not change in any way for a threatened species with a species-specific 4(d) rule. Actions that result in a determination by a Federal agency of “not likely to adversely affect” continue to require the Service's written concurrence and actions that are “likely to adversely affect” a species require formal consultation and the formulation of a biological opinion. Provisions of the 4(d) Rule This 4(d) rule will provide for the conservation of Wright's marsh thistle by prohibiting, except as otherwise authorized or permitted, any person subject to the jurisdiction of the United States from the following: Removing and reducing to possession the species from areas under Federal jurisdiction; maliciously damaging or destroying any such species on any such area; or removing, cutting, digging up, or damaging or destroying any such species on any other area in knowing violation of any law or regulation of any State law or regulation or in the course of any violation of a State criminal trespass law. Almost 30 percent of occupied Wright's marsh thistle habitat is on Federal land. As discussed in the Summary of Biological Status and Threats (above), habitat loss and modification are affecting the viability of Wright's marsh thistle (Factor A). A range of activities that occur on Federal land have the potential to impact the thistle, including changes in water availability, ungulate grazing, and oil and gas development. The regulation of these activities through this 4(d) rule would help enhance the conservation of Wright's marsh thistle by preserving the species' remaining populations on Federal lands and decrease synergistic, negative effects from other stressors. As a whole, this 4(d) rule will help in the efforts to recover the species. Despite these prohibitions regarding threatened species, we may under certain circumstances issue permits to carry out one or more otherwise-prohibited activities, including those described above. The regulations that govern permits for threatened plants state that the Director may issue a permit authorizing any activity otherwise prohibited with regard to threatened species (50 CFR 17.72). Those regulations also state that the permit shall be governed by the provisions of § 17.72 unless a special rule applicable to the plant is provided in §§ 17.73 to 17.78. Therefore, permits for threatened species are governed by the provisions of § 17.72 unless a species-specific 4(d) rule provides otherwise. However, under our recent revisions to § 17.71, the prohibitions in § 17.71(a) will not apply to any plant listed as a threatened species after September 26, 2019. As a result, for threatened plant species listed after that date, any protections must be contained in a species-specific 4(d) rule. We did not intend for those revisions to limit or alter the applicability of the permitting provisions in § 17.72, or to require that every species-specific 4(d) rule spell out any permitting provisions that apply to that species and species-specific 4(d) rule. To the contrary, we anticipate that permitting provisions would generally be similar or identical for most species, so applying the provisions of § 17.72 unless a species-specific 4(d) rule provides otherwise would likely avoid substantial duplication. Moreover, this interpretation brings § 17.72 in line with the comparable provision for wildlife at 50 CFR 17.32, in which the second sentence states that the permit shall be governed by the provisions of § 17.32 unless a special rule applicable to the wildlife, appearing in 50 CFR 17.40 to 17.48, provides otherwise. Under 50 CFR 17.72 with regard to threatened plants, a permit may be issued for the following purposes: for scientific purposes, to enhance propagation or survival, for economic hardship, for botanical or horticultural exhibition, for educational purposes, or for other purposes consistent with the purposes and policy of the Act. Additional statutory exemptions from the prohibitions are found in sections 9 and 10 of the Act. We recognize the special and unique relationship with our State natural resource agency partners in contributing to conservation of listed species. State agencies often possess scientific data and valuable expertise on the status and distribution of endangered, threatened, and candidate species of wildlife and plants. State agencies, because of their authorities and their close working relationships with local governments and landowners, are in a unique position to assist the Services in implementing all aspects of the Act. In this regard, section 6 of the Act provides that the Services shall cooperate to the maximum extent practicable with the States in carrying out programs authorized by the Act. Therefore, any qualified employee or agent of a State conservation agency which is a party to a cooperative agreement with the Service in accordance with section 6(c) of the Act, who is designated by his or her agency for such purposes, will be able to conduct activities designed to conserve Wright's marsh thistle that may result in otherwise prohibited activities without additional authorization. Nothing in this 4(d) rule will change in any way the recovery planning provisions of section 4(f) of the Act, the consultation requirements under section 7 of the Act, or the ability of the Service to enter into partnerships for the management and protection of Wright's marsh thistle. However, interagency cooperation may be further streamlined through planned programmatic consultations for the species between Federal agencies and the Service, where appropriate. III. Final Critical Habitat Background Critical habitat is defined in section 3 of the Act as: (1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features. (a) Essential to the conservation of the species, and (b) Which may require special management considerations or protection; and (2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Our regulations at 50 CFR 424.02 define the “geographical area occupied by the species” as an area that may generally be delineated around species' occurrences, as determined by the Secretary ( i.e., range). Such areas may include those areas used throughout all or part of the species' life cycle, even if not used on a regular basis ( e.g., migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals). Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking. Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the Federal agency would be required to consult with the Service under section 7(a)(2) of the Act. However, even if the Service were to conclude that the proposed activity would result in destruction or adverse modification of the critical habitat, the Federal action agency and the landowner are not required to abandon the proposed activity, or to restore or recover the species; instead, they must implement “reasonable and prudent alternatives” to avoid destruction or adverse modification of critical habitat. Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features that occur in specific areas, we focus on the specific features that are essential to support the life-history needs of the species, including, but not limited to, water characteristics, soil type, geological features, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic, or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity. Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. When designating critical habitat, the Secretary will first evaluate areas occupied by the species. Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information from the SSA report and information developed during the listing process for the species. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species; the recovery plan for the species; articles in peer-reviewed journals; conservation plans developed by States and counties; scientific status surveys and studies; biological assessments; other unpublished materials; or experts' opinions or personal knowledge. Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act; (2) Regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species; and (3) The prohibitions found in section 9 of the Act. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome. Critical Habitat Prudency and Determinability In our SSA report and the proposed listing determination for Wright's marsh thistle, we determined that the present or threatened destruction, modification, or curtailment of habitat or range is a threat to the species and that those threats in some way can be addressed by section 7(a)(2) consultation measures. Accordingly, such a designation could be beneficial to the species. Therefore, because none of the circumstances enumerated in our regulations at 50 CFR 424.12(a)(1) has been met and because there are no other circumstances the Secretary has identified for which this designation of critical habitat would be not prudent, we have determined that the designation of critical habitat is prudent for Wright's marsh thistle. We have also reviewed the available information pertaining to the biological needs of the species and habitat characteristics where the species is located. This and other information represent the best scientific data available and led us to conclude that the designation of critical habitat is determinable for Wright's marsh thistle. Physical or Biological Features In accordance with section 3(5)(A)(i) of the Act and regulations at 50 C [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2023-08565. Public record. Not legal advice.