# 85 FR 61460: Endangered and Threatened Wildlife and Plants; Threatened Species Status for the Wright's Marsh Thistle (Cirsium wrightii) With a 4(d) Rule and Designation of Critical Habitat

> Federal · Regulations · In force

URL: https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2020-19337

## Section

- **Citation:** 85 FR 61460
- **Heading:** Endangered and Threatened Wildlife and Plants; Threatened Species Status for the Wright's Marsh Thistle (Cirsium wrightii) With a 4(d) Rule and Designation of Critical Habitat
- **Jurisdiction:** Federal
- **Kind:** Regulations
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Federal Register / Vol. 85 / 85 FR 61460

## Text

DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R2-ES-2018-0071; FF09E21000 FXES11110900000 201] RIN 1018-BC34 Endangered and Threatened Wildlife and Plants; Threatened Species Status for the Wright's Marsh Thistle (Cirsium wrightii) With a 4(d) Rule and Designation of Critical Habitat AGENCY:
Fish and Wildlife Service, Interior.

ACTION:
Proposed rule.

SUMMARY:
We, the U.S. Fish and Wildlife Service (Service), propose to list the Wright's marsh thistle ( Cirsium wrightii ), a plant species from New Mexico, as a threatened species and designate critical habitat under the Endangered Species Act of 1973, as amended (Act). After a review of the best available scientific and commercial information, we find that listing the species is warranted. Accordingly, we propose to list the Wright's marsh thistle as a threatened species with a rule issued under section 4(d) of the Act (“4(d) rule”). If we finalize this rule as proposed, it would add this species to the List of Endangered and Threatened Plants and extend the Act's protections to the species. We also propose to designate critical habitat for Wright's marsh thistle under the Act. The proposed critical habitat totals approximately 64.3 hectares (ha) (159 acres (ac)) in Chaves, Eddy, Guadalupe, Otero, and Socorro Counties, New Mexico. We also announce the availability of a draft economic analysis of the proposed designation of critical habitat for Wright's marsh thistle.

DATES:
We will accept comments received or postmarked on or before November 30, 2020. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES , below) must be received by 11:59 p.m. Eastern Time on the closing date. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by November 13, 2020.

ADDRESSES:
You may submit comments by one of the following methods:
or before November 30, 2020. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES , below) must be received by 11:59 p.m. Eastern Time on the closing date. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by November 13, 2020.

ADDRESSES:
You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R2-ES-2018-0071, which is the docket number for this rulemaking. Then, click on the Search button. On the resulting page, in the Search panel on the left side of the screen, under the Document Type heading, click on the Proposed Rule box to locate this document. You may submit a comment by clicking on “Comment Now!”
(2) By hard copy: Submit by U.S. mail to: Public Comments Processing, Attn: FWS-R2-ES-2018-0071; U.S. Fish and Wildlife Service, MS: JAO/1N, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see Information Requested, below, for more information).
Availability of supporting materials: For the critical habitat designation, the coordinates or plot points or both from which the maps are generated are included in the administrative record and are available at the New Mexico Ecological Services website https://www.fws.gov/southwest/es/NewMexico/index.cfm and at http://www.regulations.gov under Docket No. FWS-R2-ES-2018-0071. Any additional tools or supporting information that we may develop for the critical habitat designation will also be available at the Service website set out above, and may also be included in the preamble and/or at http://www.regulations.gov
xico Ecological Services website https://www.fws.gov/southwest/es/NewMexico/index.cfm and at http://www.regulations.gov under Docket No. FWS-R2-ES-2018-0071. Any additional tools or supporting information that we may develop for the critical habitat designation will also be available at the Service website set out above, and may also be included in the preamble and/or at http://www.regulations.gov.
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. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, if a species is determined to be 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. Critical habitat shall be designated, to the maximum extent prudent and determinable, for any species determined to be an endangered or threatened species under the Act. Listing a species as an endangered or threatened species and designations and revisions of critical habitat can only be completed by issuing a rule.
What this document doe s.
• Proposes to list Wright's marsh thistle as a threatened species. Wright's marsh thistle is a candidate species for which we have on file sufficient information on biological vulnerability and threats to support preparation of a listing proposal, but for which development of a listing rule has been precluded by other higher priority listing activities. This proposed rule reassesses all available information regarding the status of and threats to this species
es. Wright's marsh thistle is a candidate species for which we have on file sufficient information on biological vulnerability and threats to support preparation of a listing proposal, but for which development of a listing rule has been precluded by other higher priority listing activities. This proposed rule reassesses all available information regarding the status of and threats to this species.
• Proposes a rule issued under section 4(d) of the Act (“4(d) rule”) that would make it unlawful to remove and reduce to possession the species from areas under Federal jurisdiction; maliciously damage or destroy the species on areas under Federal jurisdiction; or remove, cut, dig up, or damage or destroy the species on any other area in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal trespass law. Nothing in the proposed 4(d) rule affects in any way other provisions of the Act, such as the designation of critical habitat under section 4, the recovery planning provisions of section 4(f), and the consultation requirements under section 7.
• Proposes to designate critical habitat for the species on approximately 64.3 ha (159 ac) in Chaves, Eddy, Guadalupe, Otero, and Socorro Counties, New Mexico.
The basis for our action. Under the Act, we can determine that a species is an endangered or threatened species based on 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 stressors related to Factors A and E are causing Wright's marsh thistle to be threatened
tion, 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 stressors related to Factors A and E are causing Wright's marsh thistle to be threatened.
Section 4(a)(3) of the Act requires the Secretary of the Interior (Secretary) to designate critical habitat concurrent with listing to the maximum extent prudent and determinable. Section 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. Section 3(5)(A) of the Act defines critical habitat as (i) the specific areas
Peer review. 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 the expert opinions of three appropriate and independent specialists during the analysis of the status of the species and the creation of the SSA report (USFWS 2017). The purpose of peer review was to ensure that our listing determination and critical habitat designation are based on scientifically sound data, assumptions, and analyses. The peer reviewers have expertise in Wright's marsh thistle's biology, life history, habitat, and range, and in the physical or biological features of its habitat. One of three peer reviewers provided comments on the species status assessment, which were integrated into the SSA report; these comments will be available along with other public comments in the docket for this proposed rule (see http://www.regulations.gov, Docket No. FWS-R2-ES-2018-0071)
istle's biology, life history, habitat, and range, and in the physical or biological features of its habitat. One of three peer reviewers provided comments on the species status assessment, which were integrated into the SSA report; these comments will be available along with other public comments in the docket for this proposed rule (see http://www.regulations.gov, Docket No. FWS-R2-ES-2018-0071).
Because we will consider all comments and information we receive during the comment period on this proposed rule, our final determinations may differ from this proposal. Based on the new information we receive (and any comments on that new information), we may conclude that the species is endangered instead of threatened, or we may conclude that the species does not warrant listing as either an endangered species or a threatened species. Such final decisions would be a logical outgrowth of this proposal, as long as we: (1) Base the decisions on the best scientific and commercial data available after considering all of the relevant factors; (2) do not rely on factors Congress has not intended us to consider; and (3) articulate a rational connection between the facts found and the conclusions made, including why we changed our conclusion.
Information Requested
We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning:
(1) Wright's marsh thistle's biology, range, and population trends, including:
(a) Biological or ecological requirements of the species, including habitat requirements for all life cycle stages, seed production and dispersal, and seed germination and growth;
(b) Genetics and taxonomy;
y, or any other interested parties concerning this proposed rule. We particularly seek comments concerning:
(1) Wright's marsh thistle's biology, range, and population trends, including:
(a) Biological or ecological requirements of the species, including habitat requirements for all life cycle stages, seed production and dispersal, and seed germination and growth;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns;
(d) Historical and current population levels, and current and projected trends; and
(e) Past and ongoing conservation measures for the species, its habitat, or both.
(2) Factors that may affect the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors.
(3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and existing regulations that may be addressing those threats.
(4) Additional information concerning the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species.
(5) Information on regulations that are necessary and advisable to provide for the conservation of the Wright's marsh thistle and that the Service can consider in developing a 4(d) rule for the species. In particular, information concerning the extent to which we should include any of the section 9 prohibitions in the 4(d) rule or whether any other forms of take should be excepted from the prohibitions in the 4(d) rule.
(6) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act (16 U.S.C. 1531 et seq. ), including information to inform the following factors such that a designation of critical habitat may be determined to be not prudent:
prohibitions in the 4(d) rule or whether any other forms of take should be excepted from the prohibitions in the 4(d) rule.
(6) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act (16 U.S.C. 1531 et seq. ), including information to inform the following factors such that a designation of critical habitat may be determined to be not prudent:
(a) The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species;
(b) The present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or threats to the species' habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act;
(c) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States;
(d) No areas meet the definition of critical habitat.
(7) Specific information on:
(a) The amount and distribution of Wright's marsh thistle habitat;
(b) What areas, that were occupied at the time of listing and that contain the physical or biological features essential to the conservation of the species, should be included in the critical habitat designation and why;
(c) Special management considerations or protections that may be needed in the critical habitat areas we are proposing, including managing for the potential effects of climate change; and
(d) What areas not occupied at the time of listing that are essential for the conservation of the species. We particularly seek comments:
cies, should be included in the critical habitat designation and why;
(c) Special management considerations or protections that may be needed in the critical habitat areas we are proposing, including managing for the potential effects of climate change; and
(d) What areas not occupied at the time of listing that are essential for the conservation of the species. We particularly seek comments:
(i) Regarding whether occupied areas are inadequate for the conservation of the species; and,
(ii) Providing specific information that supports the determination that unoccupied areas will, with reasonable certainty, contribute to the conservation of the species and, contain at least one physical or biological feature essential to the conservation of the species.
(8) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.
(9) Any probable economic, national security, or other relevant impacts of designating any area as critical habitat that may be included in the final designation, and the related benefits of including or excluding areas.
(10) Information on the extent to which the description of probable economic impacts in the draft economic analysis is a reasonable estimate of the likely economic impacts.
(11) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act.
mic impacts in the draft economic analysis is a reasonable estimate of the likely economic impacts.
(11) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act.
(12) Whether we could improve or modify our approach to designating critical habitat in any way to provide for
Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or a threatened species must be made “solely on the basis of the best scientific and commercial data available.”
You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described in ADDRESSES.
If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov
quest at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov.
Public Hearing
Section 4(b)(5) of the Act provides for a public hearing on this proposal, if requested. Requests must be received by the date specified in DATES . Such requests must be sent to the address shown in FOR FURTHER INFORMATION CONTACT. We will schedule a public hearing on this proposal, if requested, and announce the date, time, and place of the hearing, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing. For the immediate future, we will provide these public hearings using webinars that will be announced on the Service's website, in addition to the Federal Register . The use of these virtual public hearings is consistent with our regulation at 50 CFR 424.16(c)(3).
Previous Federal Actions
On October 15, 2008, we received a petition from WildEarth Guardians requesting that we list Wright's marsh thistle as an endangered or threatened species under the Act. Additionally, the petitioner requested that critical habitat be designated concurrent with the listing of Wright's marsh thistle (thistle). On September 10, 2009, we published a 90-day finding in the Federal Register (74 FR 46542) that the petition presented substantial information that listing Wright's marsh thistle may be warranted. The 90-day finding stated that the petition provided substantial information indicating that listing Wright's marsh thistle may be warranted. At that time, we initiated a status review of the species
e). On September 10, 2009, we published a 90-day finding in the Federal Register (74 FR 46542) that the petition presented substantial information that listing Wright's marsh thistle may be warranted. The 90-day finding stated that the petition provided substantial information indicating that listing Wright's marsh thistle may be warranted. At that time, we initiated a status review of the species.
On February 11, 2010, WildEarth Guardians filed suit against the Service for failure to issue a 12-month finding on the petition ( WildEarth Guardians v. Salazar, No. 10-cv-00122 BRB-DJS (D.N.M.)). Under a stipulated settlement agreement, the 12-month finding was due to the Federal Register by October 31, 2010. On November 4, 2010, after review of all available scientific and commercial information, we published a 12-month petition finding (75 FR 67925), in which we found that listing Wright's marsh thistle as endangered or threatened throughout its range is warranted, but that listing of the thistle was precluded by higher priority actions to amend the Lists of Endangered and Threatened Wildlife and Plants. As a result of the 12-month finding, we added Wright's marsh thistle to our candidate species list, with a listing priority number of 8, indicating that the thistle faced imminent threats that were of moderate magnitude. Thereafter, we reassessed the status of the species annually and determined that listing the thistle remained warranted but was precluded by higher priority activities under the Act (see 77 FR 69994, November 21, 2012; 78 FR 70104, November 22, 2013; 79 FR 72450, December 5, 2014; 80 FR 80584, December 24, 2015; 81 FR 87246, December 2, 2016).
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
activities under the Act (see 77 FR 69994, November 21, 2012; 78 FR 70104, November 22, 2013; 79 FR 72450, December 5, 2014; 80 FR 80584, December 24, 2015; 81 FR 87246, December 2, 2016).
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. The Service sent the SSA report to 3 independent peer reviewers and received 1 response.
I. Proposed Listing Determination
Background
Species Description
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 pink flowers and dark green foliage with higher 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.
Life History
Depending on local environmental conditions, Wright's marsh thistle can display life-history traits of a biennial (a plant completing development in 2 years, flowering in its second year) or a weak monocarpic perennial (a plant that flowers, sets seed, and then dies). Cross pollination is achieved by insect pollinators, primarily bees. Like other species in the genus Cirsium, Wright's marsh thistle produces numerous seeds per flowering plant
Wright's marsh thistle can display life-history traits of a biennial (a plant completing development in 2 years, flowering in its second year) or a weak monocarpic perennial (a plant that flowers, sets seed, and then dies). Cross pollination is achieved by insect pollinators, primarily bees. Like other species in the genus Cirsium, Wright's marsh thistle produces numerous seeds per flowering plant. After germination, seedlings develop into an intermediate rosette form for most of a year or longer before bolting (producing a stem) and growing into the mature, flowering plant. It does not reproduce vegetatively (asexually from parent plant). In order to progress through its life cycle, the thistle requires adequate soil alkalinity, water availability for permanent root saturation, and access to full sunlight. Specifically, seeds require water-saturated soils and access to fairly direct sunlight for germination. Rosettes also require water-saturated soils and access to fairly direct sunlight in order to grow into a mature plant. Mature plants must also maintain permanent root saturation via water-saturated soils and tend to thrive better in full sunlight. For more details of the biology and life history of Wright's marsh thistle, please refer to chapter 2 of the SSA report (USFWS 2017).
Habitat and Distribution
Wright's marsh thistle is a rare wetland species that grows in marshy habitats with year-round, water-saturated soils, at elevations between 1,150 and 2,390 m (3,450 and 7,850 ft) in elevation (Sivinski 1996, p. 1; 2005, pp. 3-4). Wright's marsh thistle is an obligate of seeps, springs, and wetlands that have saturated soils with surface or subsurface water flow (Sivinski 1996, p. 1; USFWS 1998, p. 2; Worthington 2002, p. 2; NMRPTC 2009, p. 1). Within those spring and seep areas, it is usually associated with alkaline soils (Sivinski 2005, p. 3)
2,390 m (3,450 and 7,850 ft) in elevation (Sivinski 1996, p. 1; 2005, pp. 3-4). Wright's marsh thistle is an obligate of seeps, springs, and wetlands that have saturated soils with surface or subsurface water flow (Sivinski 1996, p. 1; USFWS 1998, p. 2; Worthington 2002, p. 2; NMRPTC 2009, p. 1). Within those spring and seep areas, it is usually associated with alkaline soils (Sivinski 2005, p. 3).
Historical Range
Wright's marsh thistle was historically known to occur in Arizona and New Mexico in the United States, and Chihuahua and Sonora in Mexico (Sivinski 2012, p. 2). The single location in Arizona was a historical 1851 collection from San Bernardino Cienega, which straddles the international border with Mexico, and no longer has suitable wetland habitat on the Arizona side of the border (Baker 2011, p. 7). There were 10 historical occurrences in New Mexico; however, in a recent search effort at one of the sites (Lake County), the thistle was not found (Sivinski 2011, p. 40), and another of the 10 records (Rattlesnake Springs, Eddy County) is now thought to be a hybrid between Wright's marsh thistle and the Texas thistle ( C. texanum ) (NMRPTC 2009, p. 2). Reports of Wright's marsh thistle from Texas were common (Keil 2006, p. 131; Sivinski 1996, pp. 2-4), but in subsequent examinations of Texas specimens purporting to be Wright's marsh thistle, the specimens were found to be Texas thistle or other Cirsium species (75 FR 67928; November 4, 2010).
The status of the Wright's marsh thistle in Mexico is presumed extirpated. There have been few verified historical collections, and the most recent site visit to Fronteras, Mexico, and Cerro Angostura, Mexico, indicated that the habitat had been mostly dried out and is no longer suitable (Sivinski 2017, entire).
Therefore, Wright's marsh thistle has been extirpated from all previously known locations in Arizona, two historical locations in New Mexico, and all known locations in Mexico, and it was misidentified and likely not ever present in Texas
isit to Fronteras, Mexico, and Cerro Angostura, Mexico, indicated that the habitat had been mostly dried out and is no longer suitable (Sivinski 2017, entire).
Therefore, Wright's marsh thistle has been extirpated from all previously known locations in Arizona, two historical locations in New Mexico, and all known locations in Mexico, and it was misidentified and likely not ever present in Texas.
Current Range
In New Mexico, eight general 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). In Otero County, the Sacramento Mountains have four unique populations of the species clustered within about 16 kilometers (km) (10 miles (mi)) of each other on the west slope of the mountains. The remaining four localities are widely disjunct, separated from the Sacramento localities by about 120 to 225 km (75 to 140 mi) and from each other by about 120 to 345 km (75 to 215 mi). In the Sacramento Mountains, two of these four localities occur on the Lincoln National Forest, one locality is on private land, and the remaining locality is on the Mescalero Apache Reservation. In the Pecos River Valley, one locality is on public lands on Bitter Lake NWR; one is on private land near Blue Springs and the Black River; and one is in the vicinity of Santa Rosa on private, municipal, and State lands. The remaining locality is on private land on Alamosa Creek, Socorro County. Localities vary in relative population size from fewer than 20 individuals covering only about 0.02 ha (0.03 ac) at the Silver Springs locality (Sivinski 2012, p
on Bitter Lake NWR; one is on private land near Blue Springs and the Black River; and one is in the vicinity of Santa Rosa on private, municipal, and State lands. The remaining locality is on private land on Alamosa Creek, Socorro County. Localities vary in relative population size from fewer than 20 individuals covering only about 0.02 ha (0.03 ac) at the Silver Springs locality (Sivinski 2012, p. 21), to several thousand individuals on Bitter Lake NWR, covering almost 9.3 ha (23 ac).
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
ed 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
ht 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
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 for Wright's marsh thistle (USFWS 2017) documents the results of our comprehensive biological status review for 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 proposed for listing as an endangered or threatened species under the Act. It does, however, provide the scientific basis that informs our regulatory decisions, which involves the further application of standards within the Act and its implementing regulations and policies.
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)
ecies under the Act. It does, however, provide the scientific basis that informs our regulatory decisions, which involves the further application of standards within the Act and its implementing regulations and policies.
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. This process 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
pecies 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. This process 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 determine the species' current condition, we ranked each population based on six factors relating to population and habitat variables including 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. These criteria were used to determine an overall condition for each of the eight extant populations (USFWS 2017). The overall condition of a population refers to the likelihood of persistence over time. We expect a population in high overall condition to have a greater than 90 percent likelihood of persistence over the foreseeable future (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 foreseeable future would be approximately 66 to 90 percent (10 to 33 percent likelihood of extirpation)
e expect a population in high overall condition to have a greater than 90 percent likelihood of persistence over the foreseeable future (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 foreseeable future 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 foreseeable future (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 foreseeable future (75 to 100 percent likelihood of extirpation).
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). 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
y 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 differences in ecological adaptability between the eastern and western populations of the thistle, which may also represent 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. Wright's marsh thistle has likely lost genetic and environmental diversity as populations have been reduced or extirpated. As such, 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 et al. 2010, entire; Redford et al. 2011, entire).
Current Condition of Wright's Marsh Thistle
As stated above, the best available information indicates that Wright's marsh thistle is currently only found in eight localities in New Mexico. We believe the plant has been extirpated in Arizona, Mexico, and two locations in New Mexico, and never occurred in Texas
t. In addition, populations of the et al. 2010, entire; Redford et al. 2011, entire).
Current Condition of Wright's Marsh Thistle
As stated above, the best available information indicates that Wright's marsh thistle is currently only found in eight localities in New Mexico. We believe the plant has been extirpated in Arizona, Mexico, and two locations in New Mexico, and never occurred in Texas. According to our current condition rankings outlined in chapter 3 of the SSA report, of the eight extant populations in New Mexico, three have been determined to have moderate resiliency, two have low resiliency, and three have very low resiliency and are at risk of extirpation. We consider the thistle to have representation in the form of genetic and environmental diversity 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 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.
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 (Table 1)
o 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 (Table 1). 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).
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; Sivinski 2005, pp. 3-4; Sivinski 2012). 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). 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 because of past and present land and water management practices that have led to ground and surface water depletion. For specific examples for each population, please refer to chapter 4, section 1 of the SSA report (USFWS 2017)
USFS 2008, p. 19). 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 because of past and present land and water management practices that have led to ground and surface water depletion. For specific examples for each population, please refer to chapter 4, section 1 of the SSA report (USFWS 2017). All of the extant localities may be affected by long-term drought, whereas four of the largest localities at Blue Spring, Bitter Lake NWR, Santa Rosa, and Alamosa Creek have the potential to be further modified by ongoing and future water management practices. Drought, along with ground and surface water depletion, serve 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, which suggests that these impacts will increase in the future, leading to further impacts to the thistle (NOAA 2017).
Decreased Water Availability: Drought
According to the United States 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. Newton et al. (2012) provides information on drought conditions in the range of the species, specifically in the Pecos River valley and Sacramento Mountains. 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, because these wet periods are extremely rare events (Newton et al
istle 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, because these wet periods are extremely rare events (Newton et al. 2012, p. 66), drought has notably impacted the area's groundwater tables (USFS 2008, p. 22). For this reason, the seasonal distribution of yearly precipitation can result in temporary drought conditions and reduced water availability for some Wright's marsh thistle localities within this mountain range.
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, making 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 slightly less significant stressor to the populations ( e.g., see Poff et al. 2002, pp. 18-19)
increased drought, making 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 slightly less significant stressor to the populations ( e.g., see Poff et al. 2002, pp. 18-19).
Decreased Water Availability: 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). Sivinski (1994, pp. 1-2; 1996, p. 4; 2005, p. 1; 2006, p. 4) reported loss and degradation of habitat from water diversion or draining of wetlands that historically supported Wright's marsh thistle in Chaves, Otero, and Sierra Counties, New Mexico. The extent of ongoing and future water diversions is related to the extent of urban and agricultural development within a given area. Thus, 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). The alteration and loss of habitat that currently supports Wright's marsh thistle, due to 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)
of the SSA report (USFWS 2017). The alteration and loss of habitat that currently supports Wright's marsh thistle, due to 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).
Decreased Water Availability: 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. Springs and wet valleys have been affected by drought in at least three canyons of the Sacramento Mountains, New Mexico, resulting in reduced population sizes. Similar water loss may occur within other Wright's marsh thistle localities (USFWS 2017). If changes in climate lead to future drought, additional dewatering and reduction of habitat for the thistle may occur.
Downscaled projections as of 2018 were available for our analysis of Wright's marsh thistle from the Climate Explorer program in the U.S. Climate Resilience Toolkit (NOAA 2017). The Climate Explorer is based on 32 models and produces a mean which 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 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 locations where Wright's marsh thistle is currently located show increases in mean daily maximum temperature over the next 50 years by approximately 1.7 degrees Celsius (°C) (3 degrees Fahrenheit (°F))
portions of Canada and Mexico. Scenario 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 locations where Wright's marsh thistle is currently located 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 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, which may impact the availability of water during times critical to life-history traits of Wright's marsh thistle (NOAA 2017).
Specific details on the effects of climate change are located in chapter 4 of the SSA report (USFWS 2017). Projected increases in temperature and increased variability in precipitation in 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 availability of water and the extent of current and ongoing water withdrawals
apter 4 of the SSA report (USFWS 2017). Projected increases in temperature and increased variability in precipitation in 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 availability of water and the extent of current and ongoing water withdrawals.
Decreased Water Availability: Summary
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 habitat of Wright's marsh thistle 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 is present at 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 (75 FR 67925)
osa 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 (75 FR 67925). 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 threatened Sacramento Mountains thistle ( C. vinaceum ) (52 FR 22933), which is also found in New Mexico and associated with habitats similar to those occupied by Wright's marsh thistle, 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).
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. On the other hand, spring and early summer grazing probably reduces growth, survival, and reproduction
mit the distribution of the thistle (USFWS 2017).
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. On the other hand, spring and early summer grazing probably reduces growth, survival, and reproduction. Late summer and early fall grazing is most severe, as flowering plants typically set seed at this time;
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. Though 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
6, 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. Though 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.
For example, 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 dense plant growth blocks sunlight to other plants growing in the immediate area and occupies all available habitat (PCA 2005, p. 1). The increase of the common reed in Wright's marsh thistle habitat is a current threat to the species through increased wildfire risk, competition, and changes in hydrology (impacts on degree of soil saturation), especially when habitat is disturbed through burning or drying. The impacts 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 practices 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). As this species is comprised of small, isolated populations, the impacts of native and nonnative plants could pose a significant stressor to the thistle
ue to lack of vegetation management practices 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). As this species is comprised of small, isolated populations, 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 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 effects of this stressor.
Oil and Gas Development and Mining
Oil and gas development occurs within and adjacent ( i.e., within 10 miles) of some areas occupied by Wright's marsh thistle including Santa Rosa, Bitter Lake NWR, and Blue Spring (New Mexico State Lands Office, 2017; NMDGF 2007, pp. 18-19; NMDGF 2005, p. 35). There are also mining activities adjacent ( i.e., within 5 miles) to other 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; New Mexico State Lands Office, 2017; Sivinski 2012, p. 9). As of February 2020, 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 contamination. Contamination from oil and gas development has been observed within close proximity ( i.e., within 16 km (10 mi) of some Wright's marsh thistle localities (New Mexico State Lands Office, 2017)
ice 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 contamination. Contamination from oil and gas development has been observed within close proximity ( i.e., within 16 km (10 mi) of some Wright's marsh thistle localities (New Mexico State Lands Office, 2017). While laws and regulations related to water quality have reduced the risk of contamination in and near occupied locations from oil and gas production, the likelihood that a spill could impact these habitats is still present based on the high volume of oil and gas leases near these areas.
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, and mining activities could alter or destroy habitat.
The largest occupied habitat area 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
ng activities could alter or destroy habitat.
The largest occupied habitat area 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, chapter 4] 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 on 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
pulation, and X indicates a mild stressor to the population. Conservation Measures and Regulatory Mechanisms
Minimal conservation of Wright's marsh thistle is occurring on 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. The 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-m (200-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. Further, 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 the States). Thus, the Federal protection afforded to this plant by listing it as an endangered or threatened species would be reinforced and supplemented by protection under State law
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 the States). Thus, the Federal protection afforded to this plant by listing it as an endangered or threatened species would 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 this 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.
Future Scenarios Considered
As there are a range of possibilities regarding the intensity of stressors ( i.e., decreased water availability to habitat, ungulate grazing, native and nonnative plants, oil and gas development, and mining) acting on the populations, 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. These four scenarios incorporate the best available information on projection of threat data up to 50 years in the future
e 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. 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. In regards to climate change models, we used a moderate emissions climate change scenario of RCP 4.5 from the 2017 U.S. Climate Resilience Toolkit, which provides a range of projections for temperature and precipitation through 2100 (NOAA 2017). 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. 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
d 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
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
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).
Table 2—Condition Ratings for each of the Eight Populations of Wright's Marsh Thistle Under Four Possible Future Scenarios [USFWS 2017, Chapter 5] 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
017, Chapter 5] 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.
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
ies, our assessment integrates the cumulative effects of the factors and replaces a standalone cumulative effects analysis.
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
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 previously known 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, 2012 entire). As a result, the remaining extant area of the eight populations has contracted in recent years, and is currently approximately only 43 ha (106 ac)
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, 2012 entire). As a result, the remaining extant area of the 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). The species historically had representation in the form of two morphologically distinct and geographically separate forms; the species continues to maintain representation currently in these forms, although population sizes have decreased.
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
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 predicted that while no populations were likely to become extirpated, three of the eight populations were expected to have very low resiliency.
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 also 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 high or moderate resiliency for their current condition. 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 meets the definition of a threatened species because it 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
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 time frames, 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. Thus, for the purposes of this determination, we were most confident in setting the foreseeable future at 25 years.
Our analysis of the species' current and future conditions show that the population and habitat factors used to determine the 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 or a significant portion 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
e thistle is likely to become in danger of extinction within the foreseeable future throughout all or a significant portion 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 Condition” 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 likelihood of occurrence of the “Major Effects” and “Severe Effects” scenarios increases as time progresses. 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).
Due to the continuation of threats at increasing levels, we anticipate a severe reduction in the thistle's future 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 dangerously 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
ermore, 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 dangerously 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, are 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
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, 2020 WL 437289 (D.D.C. Jan. 28, 2020) ( Center for Biological Diversity ), vacated the aspect of the 2014 Significant Portion of its Range Policy that provided that the Services do 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
s 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 any portions of the range where the species is endangered.
For Wright's marsh thistle, we considered whether the threats are geographically concentrated in any portion of the species' range at a biologically meaningful scale. In light of the species' needs ( i.e., permanent root saturation; alkaline soils; full, direct, or nearly full sunlight; and abundant pollinators), we examined the following threats (including cumulative threats): Habitat degradation due to decreased water availability, livestock grazing, native and non-native plants, and oil and gas development and mining; continued drought and the effects of climate change; and small, isolated populations. Each population of Wright's marsh thistle was determined to have some level of impact from each threat listed above, with variations in source and intensity
e threats): Habitat degradation due to decreased water availability, livestock grazing, native and non-native plants, and oil and gas development and mining; continued drought and the effects of climate change; and small, isolated populations. Each population of Wright's marsh thistle was determined to have some level of impact from each threat listed above, with variations in source and intensity. For example, habitat degradation due to decreased water availability at the Santa Rosa population location is influenced by agricultural use, while the La Luz Canyon population location is influenced primarily by municipal use. In another example, livestock grazing tends to be present with greater intensity near the Santa Rosa population location than near the La Luz Canyon population location. While there may be some variation in the source and intensity of each individual threat at each population location, we found no concentration of threats in any portion of Wright's marsh thistle's range at a biologically meaningful scale. Thus, there are no portions of the species' range where the species has a different status from its rangewide status.
Therefore, no portion of the species' range provides a basis for determining that the species is in danger of extinction in a significant portion of its range, and we determine that the species is likely to become in danger of extinction within the foreseeable future throughout all of its range. This is consistent with the courts' holdings in Desert Survivors v. Department of the Interior, No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), and Center for Biological Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 2017).
Determination of Status
Our review of the best available scientific and commercial information indicates that Wright's marsh thistle meets the definition of a threatened species. Therefore, we propose to list Wright's marsh thistle as a threatened species in accordance with sections 3(20) and 4(a)(1) of the Act
nter for Biological Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 2017).
Determination of Status
Our review of the best available scientific and commercial information indicates that Wright's marsh thistle meets the definition of a threatened species. Therefore, we propose to list 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. Subsection 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
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 ( http://www.fws.gov/endangered ).
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
, 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
If this species is listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the State of New Mexico would 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: http://www.fws.gov/grants.
Although Wright's marsh thistle is only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT ).
Section 7(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. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat
al habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, 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 the species' habitat that may require conference or consultation or both as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the 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 proposed listing on proposed and ongoing activities within the range of the species proposed for listing. The discussion below regarding protective regulations under section 4(d) of the Act complies with our policy.
II. Proposed Rule Issued Under Section 4(d) of the Act
Background
Section 4(d) of the Act contains two sentences
of this policy is to increase public awareness of the effect of a proposed listing on proposed and ongoing activities within the range of the species proposed for listing. The discussion below regarding protective regulations under section 4(d) of the Act complies with our policy.
II. Proposed 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 he 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
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 him with regard to the permitted activities for those species. He may, for example, permit taking, but not importation of such species, or he 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 its authority under section 4(d), the Service has developed a proposed 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 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 proposed 4(d) rule would 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 proposed rule are one of many tools that the Service would use to promote the conservation of the Wright's marsh thistle. This proposed 4(d) rule would apply only if and when the Service makes final the listing of Wright's marsh thistle as a threatened species.
Provisions of the Proposed 4(d) Rule
This proposed 4(d) rule would 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 the species on any area under Federal jurisdiction; or removing, cutting, digging up, or damaging or
As discussed in the Summary of Biological Status and Threats (above), habitat loss and modification are affecting the viability of Wright's marsh thistle. 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
ccur 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, the proposed 4(d) rule would help in the efforts to recover the species.
We may issue permits to carry out otherwise prohibited activities, including those described above, involving threatened plants under certain circumstances. Regulations governing permits for threatened plants are codified at 50 CFR 17.72, which states that “the Director may issue a permit authorizing any activity otherwise prohibited with regard to threatened species.” That regulation also states, “The permit shall be governed by the provisions of this section unless a special rule applicable to the plan is provided in sections 17.73 to 17.78.” We interpret that second sentence to mean that permits for threatened species are governed by the provisions of section 17.72 unless a special rule provides otherwise. We recently promulgated revisions to section 17.71 providing that section 17.71 will no longer apply to plants listed as threatened in the future. We did not intend for those revisions to limit or alter the applicability of the permitting provisions in section 17.72, or to require that every special rule spell out any permitting provisions that apply to that species and special rule. To the contrary, we anticipate that permitting provisions would generally be similar or identical for most species, so applying the provisions of section 17.72 unless a special rule provides otherwise would likely avoid substantial duplication
rmitting provisions in section 17.72, or to require that every special rule spell out any permitting provisions that apply to that species and special rule. To the contrary, we anticipate that permitting provisions would generally be similar or identical for most species, so applying the provisions of section 17.72 unless a special rule provides otherwise would likely avoid substantial duplication. Moreover, this interpretation brings section 17.72 in line with the comparable provision for wildlife at 50 CFR 17.32, in which the second sentence states, “Such permit shall be governed by the provisions of this section unless a special rule applicable to the wildlife, appearing in sections 17.40 to 17.48, of this part provides otherwise.” Under 50 CFR 17.12, with regard to threatened plants, a permit may be issued for the following purposes: Scientific purposes, to enhance propagation or survival, for economic hardship, for botanical or horticultural exhibition, for educational purposes, or other purposes consistent with the purposes of the Act. Additional statutory exemptions from the prohibitions are found in sections 9 and 10 of the Act.
The Service recognizes 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
e 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, would 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 proposed 4(d) rule would 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. We ask the public, particularly State agencies and other interested stakeholders that may be affected by the proposed 4(d) rule, to provide comments and suggestions regarding additional guidance and methods that the Service could provide or use, respectively, to streamline the implementation of this proposed 4(d) rule (see Information Requested, above).
III. Proposed Designation of 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
see Information Requested, above).
III. Proposed Designation of 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
sary. 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
Under the first prong of th

[Text truncated at 120,000 characters. The full text is on the page linked above.]

## Nearby sections

- [85 FR 265 Federal Government Participation in the Automated Clearing House](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2019-27261.md)
- [85 FR 647 District Financial Reporting](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2019-27573.md)
- [85 FR 852 Modifications to Pressure-Temperature Limits](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2019-28061.md)
- [85 FR 1131 Air Plan Approval; California; San Joaquin Valley Unified Air Pollution Control District](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2019-28442.md)
- [85 FR 1134 Telecommunications Relay Service Modernization](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2019-28444.md)
- [85 FR 1290 Airworthiness Directives; The Boeing Company Airplanes](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2019-28469.md)
- [85 FR 1297 Idaho: Final Approval of State Underground Storage Tank Program Revisions, Codification, and Incorporation by Reference](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2019-28391.md)
- [85 FR 1771 Undue and Unreasonable Preferences and Advantages Under the Packers and Stockyards Act](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2020-00152.md)
- [85 FR 1794 Air Plan Approval; Missouri; Open Burning](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2020-00266.md)
- [85 FR 1796 Air Plan Approval; Georgia; Revisions to Aerospace VOC Rule](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2020-00327.md)
- [85 FR 1798 Consumer and Governmental Affairs Bureau Seeks Comment To Refresh the Record on Truth-in-Billing Rules To Ensure Protections for All Consumers of Voice Services](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2020-00260.md)
- [85 FR 2061 Revised Applicability Dates for Regulations Under Section 382(h) Related to Built-in Gain and Loss](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2020-00469.md)
- [85 FR 2354 Fair Housing Act Design and Construction Requirements; Adoption of Additional Safe Harbors](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2020-00233.md)
- [85 FR 2369 Take of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Rocky Intertidal Monitoring Surveys Along the Oregon and California Coasts](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2020-00394.md)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2020-19337. Check the current official text before relying on it. Not legal advice.