[Federal Register Volume 87, Number 112 (Friday, June 10, 2022)]
[Rules and Regulations]
[Pages 35431-35459]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-12521]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2020-0130; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BF21
Endangered and Threatened Wildlife and Plants; Endangered Species
Status for Arizona Eryngo and Designation of Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
endangered species status under the Endangered Species Act of 1973
(Act), as amended, for the Arizona eryngo (Eryngium sparganophyllum), a
plant species native to Arizona and New Mexico in the United States,
and to Sonora and Chihuahua in Mexico. We also designate critical
habitat for the Arizona eryngo. In total, approximately 12.7 acres (5.1
hectares) in Pima and Cochise Counties, Arizona, fall within the
boundaries of the critical habitat designation. This rule extends the
protections of the Act to this species and its designated critical
habitat.
DATES: This rule is effective July 11, 2022.
ADDRESSES: This final rule is available on the internet at https://www.regulations.gov. Comments and materials we received, as well as
supporting documentation we used in preparing this rule, are available
for public inspection at https://www.regulations.gov at Docket No. FWS-
R2-ES-2020-0130.
For the critical habitat designation, the coordinates or plot
points or both from which the maps are generated are included in the
decision file and are available at https://www.regulations.gov at
Docket No. FWS-R2-ES-2020-0130.
FOR FURTHER INFORMATION CONTACT: Heather Whitlaw, Arizona Ecological
[[Page 35432]]
Services Field Office, 9828 North 31st Ave. C3, Phoenix, AZ 85051-2517;
telephone 602-242-0210. Individuals in the United States who are deaf,
deafblind, hard of hearing, or have a speech disability may dial 711
(TTY, TDD, or TeleBraille) to access telecommunications relay services.
Individuals outside the United States should use the relay services
offered within their country to make international calls to the point-
of-contact in the United States.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, a species warrants
listing if it meets the definition of an endangered species (in danger
of extinction throughout all or a significant portion of its range) or
a threatened species (likely to become endangered in the foreseeable
future throughout all or a significant portion of its range). We have
determined that the Arizona eryngo meets the definition of an
endangered species; therefore, we are listing it as such and
designating critical habitat for it. Both listing a species and
designating critical habitat can be completed only by issuing a rule
through the Administrative Procedure Act rulemaking process.
What this document does. This rule makes final the listing of the
Arizona eryngo as an endangered species and the designation of critical
habitat for the species under the Act. We are designating critical
habitat in two units, on private and public property, totaling 12.7
acres (5.1 hectares) in Pima and Cochise Counties, Arizona.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined that the Arizona eryngo is
primarily at risk of extinction due to habitat changes: physical
alteration of cienegas, water loss, and changes in co-occurring
vegetation, all of which are exacerbated by the effects of climate
change (Factors A).
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary) to designate critical habitat concurrent with listing to
the maximum extent prudent and determinable. Section 3(5)(A) of the Act
defines critical habitat as (i) the specific areas within the
geographical area occupied by the species, at the time it is listed, on
which are found those physical or biological features (I) essential to
the conservation of the species and (II) which may require special
management considerations or protections; and (ii) specific areas
outside the geographical area occupied by the species at the time it is
listed, upon a determination by the Secretary that such areas are
essential for the conservation of the species. Section 4(b)(2) of the
Act states that the Secretary must make the designation on the basis of
the best scientific data available and after taking into consideration
the economic impact, the impact on national security, and any other
relevant impacts of specifying any particular area as critical habitat.
Previous Federal Actions
Please refer to the March 4, 2021, proposed listing and critical
habitat rule for the Arizona eryngo (86 FR 12563) for a detailed
description of previous Federal actions concerning this species.
Supporting Documents
A species status assessment (SSA) team prepared an SSA report for
the Arizona eryngo. The SSA team was composed of Service biologists, in
consultation with other species experts. The SSA report represents a
compilation of the best scientific and commercial data available
concerning the status of the species, including the impacts of past,
present, and future factors (both negative and beneficial) affecting
the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review of
listing actions under the Act, we sought peer review of the SSA report.
The Service sent the SSA report to eight independent peer reviewers and
received four responses. The purpose of peer review is to ensure that
our listing determinations and critical habitat designations are based
on scientifically sound data, assumptions, and analyses. The peer
reviewers have expertise in the biology, habitat, and threats to the
species. The Service also sent the SSA report to 16 partners, including
scientists with expertise in wetland management and conservation and
plant ecology, for review. We received review from eight partners
(Federal, State, and County governments, and universities).
Summary of Changes From the Proposed Rule
Based on information we received in the comments regarding proposed
critical habitat, we are excluding all of proposed Unit 3 (Agua
Caliente) from the critical habitat designation for the Arizona eryngo.
This exclusion results in a decrease of approximately 0.33 acres (0.13
hectares) from the areas we proposed to designate as critical habitat
for the species.
Summary of Comments and Recommendations
In the March 4, 2021, proposed rule to list the Arizona eryngo as
an endangered species and designate critical habitat under the Act (86
FR 12563), we requested that all interested parties submit written
comments on the proposal by May 3, 2021. We also contacted appropriate
Federal and State agencies, scientific experts and organizations, and
other interested parties and invited them to comment on the proposal.
Newspaper notices inviting general public comment were published in the
Arizona Daily Star. We did not receive any requests for a public
hearing. All substantive information received during the comment period
has either been incorporated directly into this final determination or
is addressed below.
Peer Reviewer Comments
As discussed in Supporting Documents above, we received comments
from four peer reviewers on the draft SSA report. We reviewed all
comments we received from the peer reviewers for substantive issues and
new information regarding the information contained in the SSA report.
The peer reviewers generally concurred with our methods and
conclusions, and provided additional information, clarifications, and
suggestions, including updates to the taxonomy of Eryngium,
clarifications in terminology and discussions of genetic diversity, and
other editorial suggestions. There was one comment on distribution
records of the species in Mexico, which were further clarified in the
SSA report for the species. Otherwise, no substantive changes to our
analysis and conclusions within the SSA report were deemed necessary,
and peer reviewer comments are addressed in version 1.0 of the SSA
report, which was made available for public review at https://www.regulations.gov under Docket No. FWS-R2-ES-2020-0130 when the March
4, 2021, proposed rule published.
[[Page 35433]]
Public Comments
(1) Comment: Several commenters requested that additional habitat
be evaluated for designation as unoccupied critical habitat.
Our response: When designating critical habitat, we first evaluate
areas occupied by the species and will only consider unoccupied areas
to be essential where a critical habitat designation limited to
geographical areas occupied would be inadequate to ensure the
conservation of the species. We are not designating any areas currently
unoccupied by Arizona eryngo because we cannot with reasonable
certainty determine whether they will be essential for the conservation
of the species. For long-term viability, the species will require the
establishment and protection of additional resilient populations across
its historical range to reduce its risk of extinction. While the
species may need these areas, we do not have sufficient information at
this time to identify specific locations outside the known historical
distribution that have the potential conditions necessary to support
the species or whether they would contribute to conservation. As has
been recently demonstrated, attempts to establish the species at
unoccupied locations thought to have appropriate habitat (e.g., Agua
Caliente) have not been successful. Thus, at this time, we are unable
to identify which cienegas not currently occupied by Arizona eryngo
will be suitable for the reintroduction of the species at this time.
(2) Comment: Several commenters requested that we evaluate Las
Cienegas National Conservation Area, St. David Cienega, and Historic
Canoa Ranch as critical habitat.
Our response: Recent efforts have been made to establish the
species at additional locations that were not historically occupied
(e.g., Las Cienegas National Conservation Area, St. David Cienega,
Historic Canoa Ranch). We support these efforts to increase species
redundancy (i.e., increase the number of populations of Arizona
eryngo). As required by the Act, we proposed as critical habitat the
specific areas within the geographical area occupied by the species at
the time of listing that contain the physical or biological features
essential to the conservation of the species, which may require special
management considerations or protection.
We have more clearly defined what it means for an area to be
occupied by Arizona eryngo (see Criteria Used To Identify Critical
Habitat, below) to mean the presence of mature adult plants. Recent
introductions have consisted of scattered seed or plantings of young
plants, most of which did not survive. Without survival and
recruitment, it is difficult to determine whether these sites provide
the conditions that would support the species and contribute to long-
term conservation. Because we do not intend to designate as critical
habitat in areas that will not contribute to the conservation of the
species, defining ``occupied'' in this manner will ensure only those
areas with a significant likelihood of success will be included as
critical habitat. Using this definition, Las Cienegas National
Conservation Area, St. David Cienega, and Historic Canoa Ranch are not
considered occupied by Arizona eryngo at this time. Section
4(a)(3)(A)(ii) of the Act allows us from time-to-time to revise
critical habitat designations, as appropriate. Therefore, if we become
aware of additional locations that meet the definition of critical
habitat in the future, then we may revise critical habitat at that
time.
(3) Comment: Several commenters requested the removal of Agua
Caliente as critical habitat due to lack of physical or biological
features essential to the conservation of the species present at this
site and provided information on land-use and water diversion history
for Agua Caliente Spring. This included Pima County, which owns Agua
Caliente Park where this unit is located.
Our response: In our designation of critical habitat, we identified
that Agua Caliente had the physical and biological features necessary
for the conservation of the species. It contains two (saturated soils
and areas of open canopy) of the three physical or biological features
essential to the conservation of the Arizona eryngo. However, based on
recent information on the status of the population, we are no longer
certain the physical and biological features present at Agua Caliente
are sufficient to support the species. Our analysis determined that
excluding proposed Unit 3 (Agua Caliente) outweighs the benefit of
inclusion and will not result in the extinction of the species.
(4) Comment: A commenter requested that in the interest of Fort
Huachuca, Lewis Springs be excluded from critical habitat under section
4(a)(3)(B) of the Act due to economic impacts; however, the commenter
did not provide any specific information as to what these economic
impacts entailed.
Our response: Under section 4(a)(3)(B) of the Act, we do not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an integrated natural resources management
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if
we determine that such plan provides a benefit to the species for which
critical habitat is proposed for designation. With regard to critical
habitat at Lewis Springs, we cannot exempt this area from critical
habitat under the Act's section 4(a)(3)(B) because it is not owned or
controlled by the Department of Defense, nor designated for its use,
and is not subject to an integrated natural resources management plan.
Because the commenter references economic impacts, we considered
whether they intended their comment to recommend that these lands be
excluded under section 4(b)(2) rather than section 4(a)(3)(B). Based on
our economic analysis, the estimated annual incremental costs of
consultations for the Lewis Springs unit will be $4,000. Because these
costs are relatively minor, and the commenter did not provide any
specific information regarding a basis for exclusion, we did not
conduct an exclusion analysis.
(5) Comment: A commenter stated we must consider impacts to local
governments and national defense and security, including economic
impacts that would result from the proposed listing and critical
habitat designation.
Our response: With regard to considering impacts of listing the
Arizona eryngo, in making a determination as to whether a species meets
the Act's definition of an endangered or threatened species, under
section 4(b)(1)(A) of the Act the Secretary is to make that
determination based solely on the basis of the best scientific and
commercial data available. The question of whether or not there may be
impacts caused by the listing cannot by law enter into the
determination. However, we conducted an evaluation of economic and
other impacts in association with the designation of critical habitat
under section 4(b)(2) of the Act (IEc 2020, entire). Therefore, we
considered the potential economic impacts of the critical habitat
designation, including the potential benefits of such designation.
Costs of the critical habitat designation would manifest through
Section 7 consultations on federally owned lands, with the total
anticipated cost of these consultations over a 10-year period being no
more than $36,000 (IEc 2020, p. 13). As the critical habitat
designations do not occur on military owned lands, it will not have an
effect on national security. The economic analysis predicted the
critical habitat designation was unlikely to trigger
[[Page 35434]]
additional State or local regulations (IEc 2020, p. 17).
(6) Comment: A commenter questioned the accuracy of our economic
analysis and requested that an updated economic analysis be conducted
that includes cumulative effects, fiscal burdens, and a quantification
of impacts to water users.
Our response: Our economic analysis represents our best assessment
of what the economic impacts may be of the critical habitat designation
for the Arizona eryngo. Section 4(b)(2) of the Act requires the
consideration of potential economic impacts associated with the
designation of critical habitat. The regulatory effect of critical
habitat designation under the Act directly impacts only Federal
agencies, as a result of the requirement that those agencies avoid
``adverse modification'' of critical habitat. Specifically, section
7(a)(2) of the Act states that each Federal agency shall, in
consultation with and with the assistance of the Secretary, insure that
any action authorized, funded, or carried out by such agency is not
likely to jeopardize the continued existence of any endangered species
or threatened species or result in the destruction or adverse
modification of habitat of such species which is determined by the
Secretary to be critical habitat.
This requirement is the direct regulatory impact of a critical
habitat designation and serves as the foundation of our economic
analysis. We define it as an ``incremental impact'' because it is an
economic impact that is incurred above and beyond the baseline impacts
that may stem from the listing of the species (for example, costs
associated with avoiding take under section 9 of the Act); thus, it
incrementally adds to those baseline costs. However, in most cases, and
especially where the habitat in question is already occupied by the
listed species, if there is a Federal nexus, the action agency already
consults with the Service to ensure its actions will not jeopardize the
continued existence of the species; thus, the additional costs of
consultation to further ensure the action will not destroy or adversely
modify critical habitat are usually relatively minimal. Because the Act
provides for the consideration of economic impacts associated only with
the designation of critical habitat, and because the direct regulatory
effect of critical habitat is the requirement that Federal agencies
avoid destruction or adverse modification of critical habitat, the
direct economic impacts of a critical habitat designation in occupied
areas are generally limited to the costs of consultations on actions
with a Federal nexus, and rest squarely on Federal action agencies. The
economic assessment did not find that designating critical habitat
would have additional economic impacts beyond the costs of
consultations (IEc 2020, entire).
(7) Comment: A comment was made that we failed to comply with the
Data Quality Act (DQA), the Information Quality Guidelines,
Presidential memoranda, and Secretarial orders on scientific integrity
and transparency, and more time is required to collect data on the
species to comply with the DQA.
Our response: In making a determination as to whether a species
meets the Act's definition of an endangered species or a threatened
species, under section 4(b)(1)(A) of the Act, the Secretary is to make
that determination based solely on the basis of the best scientific and
commercial data available. In addition, under section 4(b)(6)(A), the
Act requires the Service to publish a final rule within 1 year from the
date we propose to list a species, with certain exceptions. We are
obligated to and have followed both of the aforementioned statutory
requirements. Additionally, in accordance with the Information Quality
Act, also referred to as the Data Quality Act (DQA) (Pub. L. 106-554),
the Service has guidelines in place for use and review of data and
publications. The Service has complied with these requirements.
(8) Comment: A comment was made that listing will further harm the
species and hamper research, and that we must consider the benefits
gained by not listing the species and weigh these against the dangers
of an incorrect listing.
Our response: In making a determination as to whether a species
meets the Act's definition of an endangered species or a threatened
species, under section 4(b)(1)(A) of the Act, the Secretary is to make
that determination based solely on the basis of the best scientific and
commercial data available. The question of whether or not there may be
some negative or positive outcome to the listing cannot by law enter
into the determination. On and after the effective date of this rule
(see DATES, above), we are available to support and guide researchers
in applying for recovery permits issued under section 10(a)(1)(A) of
the Act to conduct research and implement actions to recover the
species.
(9) Comment: Commenters requested a 90-day extension of the public
comment period, and a commenter requested a 5-year extension on the
final rule to gather more scientific information on the species,
specifically potential sites in Mexico.
Our response: We consider the 60-day comment period for the March
4, 2021, proposed rule to have provided the public a sufficient
opportunity for submitting comments on our proposal. In addition, as
noted in our response to (7) Comment, above, the Act requires the
Service to publish a final rule within 1 year from the date we propose
to list a species. This 1-year timeframe can only be extended if there
is substantial disagreement regarding the sufficiency or accuracy of
the available data relevant to the determination or revision concerned,
but only for 6 months and only for purposes of soliciting additional
data. Based on the comments we received and data evaluated, we did not
identify substantial disagreement regarding the sufficiency or accuracy
of the data. The comments expressing disagreement requested time to
collect new data to inform this finding but did not provide conflicting
or additional data that we did not consider in the proposed rule. Per
section 4(b) of the Act and the Interagency Policy on Information
Standards under the Act, we considered the best scientific and
commercial data available regarding the Arizona eryngo to evaluate its
potential status under the Act. We solicited peer review of our
evaluation of the available data, and our peer reviewers supported our
analysis. Science is a cumulative process, and the body of knowledge is
ever-growing. In light of this, the Service will always take new
research into consideration. If plausible new research supports
amendment or revision of this rule in the future, the Service will
modify the rule consistent with the Act and our established work
priorities at that time.
(10) Comment: A commenter requested that we consider a rule issued
under section 4(d) of the Act for this species that would facilitate
propagation by nurseries and transportation of Arizona eryngo.
Our response: Section 4(d) of the Act directs the Service to issue
regulations deemed necessary and advisable to provide for the
conservation of threatened species. It allows the Service to promulgate
rules for species listed as threatened (not endangered) that provide
flexibility in implementing the Act. We are listing the Arizona eryngo
as an endangered species; thus, we cannot apply a rule issued under
section 4(d) of the Act for this species. However, a section
10(a)(1)(A) permit may be requested to support scientific research or
propagation.
(11) Comment: A commenter stated that the Arizona eryngo was
[[Page 35435]]
photographed in 2019 in juniper oak pine woodland in Sonora and asked
what is known of the species range in oak woodlands.
Our response: We contacted the observer who documented the specimen
in Sonora because the species photographed did not appear to be Arizona
eryngo. The observer subsequently visited the University of Arizona
Herbarium to compare the species in question to specimens of Arizona
eryngo. Upon careful examination, the observer determined that the
species documented in the pine-oak woodland in Sonora was E.
longifolium. SEINet now reflects this updated information (Record ID:
e9c3315c-828f-4210-8fcd-d24451c712dd).
(12) Comment: A commenter inquired about the distribution of
Arizona eryngo in Mexico, asked who has searched for the species there,
and questioned the assertion of Stromberg et al. 2020 (entire) that
reports of the species farther south in Mexico are likely not valid.
Our response: A researcher from Mexico, who received funding under
the Act's section 6, searched 55 locations in Sonora and Chihuahua for
six rare plants, including the Arizona eryngo. He found the species at
2 of 55 sites (S[aacute]nchez Escalante et al. 2019), which were the
Rancho Agua Caliente and Ojo Varele[ntilde]o sites discussed in the SSA
report. This combined with Stromberg et al. 2020 (entire) represents
the best scientific and commercial data available on the species'
distribution in Mexico.
I. Final Listing Determination
Background
A thorough review of the taxonomy, life history, and ecology of the
Arizona eryngo (Eryngium sparganophyllum) is presented in the SSA
report, version 1.0 (Service 2020). The Arizona eryngo is an herbaceous
perennial flowering plant in the Apiaceae (carrot) family that is
native to Arizona and New Mexico in the United States, and to Sonora
and Chihuahua in Mexico. The species occurs in moist, organic alkali
soils found in spring-fed cienegas (aridland wetlands) supported by
adequate groundwater.
Arizona eryngo grows to a height of about 1.5 meters (m) (5 feet
(ft)) with long, linear, parallel-veined leaves that emerge from a
basal rosette. The plant is conspicuous when flowering in June through
September (Stromberg et al. 2020, p. 179; New Mexico Rare Plants 2013,
p. 1). The flowers are cream-colored and clustered in dense heads. Dry
fruits ripen in September and October. The species is believed to live
well over 10 years, and many pollinators have been documented
interacting with the species. Arizona eryngo reproduces through
pollination, creating genetically unique individuals, as well as
vegetatively via rhizomes (underground stems) producing clones, which
are genetically identical (Stromberg et al. 2020, p. 179).
The Arizona eryngo only occurs in spring-fed cienega wetlands and
grows best in full sun in areas with few nonnative plant species,
limited woody vegetation, or other vegetation that may shade or
otherwise outcompete it. The species has been found in conditions from
standing water up to 2 centimeters (cm) (0.8 inches (in)) deep to soil
that is dry at the surface but is moist to saturated several
centimeters into the soil (Stromberg et al. 2020, p. 177). It is
hypothesized that flowering is determined, in part, by soil moisture
availability (i.e., plants do not flower in drier conditions when the
plants are more stressed) and that ramets (clones) are produced during
drier periods (Li 2019, p. 8; Stromberg et al. 2020, p. 179).
Distribution of Arizona eryngo within cienegas appears to be associated
with water availability; drier conditions favor the growth of trees
that outcompete the species, and very wet conditions (i.e., perennially
standing water) favor the growth of bulrush (Schoenoplectus americanus)
that similarly outcompetes Arizona eryngo (Li 2019, p. 4). Soils
inhabited by Arizona eryngo are high in organic matter, saline, and
alkaline, and have salts on soil surfaces in the seasonally dry
periphery (Stromberg et al. 2020, p. 177).
The Arizona eryngo is known historically from six sites: three
sites in Arizona and one in New Mexico in the United States, and one
site in Sonora and one site in Chihuahua in Mexico (S[aacute]nchez
Escalante et al. 2019, pp. 16-17; Stromberg et al. 2020, p. 175). Given
the historical distribution of functional aridland cienegas (greater
than 95 percent of the historical area of cienegas in the southwestern
United States and northwestern Mexico is now dry (Cole and Cole 2015,
p. 36)), it is likely that Arizona eryngo populations were historically
more abundant, occurred closer to one another, and were more connected
(through pollination) than they are currently.
The species has been extirpated from one site in Arizona and one
site in New Mexico but remains extant at the other four sites (two in
Arizona; one in Sonora, Mexico; and one in Chihuahua, Mexico).
Additionally, efforts have been on-going to reintroduce the species to
the historical site in Arizona from which it was extirpated (Agua
Caliente) and to introduce the species to new sites (Historic Canoa
Ranch in Pima County, Arizona, and Las Cienegas National Conservation
Area in Pima and Santa Cruz Counties, Arizona) within its general
historical range (Li 2021a, p. 3; Li 2021b, pp. 6-12). A handful of
plants now exist at some of these reintroduction sites, such as Agua
Caliente, but these efforts have not yet been successful at
establishing viable populations. With the exception of the reintroduced
plants at Agua Caliente, which is about 6 kilometers (km) (3.7 miles
(mi)) from the La Cebadilla population, other sites are about 90 to 335
km (56 to 208 mi) apart from one another.
Reports of the species farther south in the Mexican states of
Durango, Jalisco, Nayarit, Zacatecas, Michoac[aacute]n, and Guerrero
are likely not valid because the herbarium specimen from Durango,
Mexico, is morphologically different from northern specimens (Stomberg
et al. 2019, p. 7). Additionally, a report of the species occurring in
Zacatecas, Nayarit, and Jalisco lacks supporting herbaria records
(Stromberg et al. 2020, p. 179), and specimens collected from
Michoac[aacute]n and Guerrero appear to be another distinct taxon due
to differences in flower color, habitat, elevation, and flowering time
(Stromberg et al. 2020, p. 179). Because the species is obvious (tall
with conspicuous flowers and locally abundant) and most cienegas,
particularly ones still extant in Arizona and New Mexico, have been
surveyed (AGFD 2019, p. 7), it is unlikely that new populations will be
found. The six historical and current populations are discussed in
greater detail below:
Las Playas, New Mexico, United States (Extirpated)--The species
historically occurred at Playas or Las Playas Springs in the Playas
Basin, east of the Animas Mountains in Hidalgo County, but it has not
been found since 1851, and is believed to be extirpated (Sivinski 2018,
p. 21; Stromberg et al. 2020, p. 176). The springs were diminished, and
Las Playas was found primarily dry by the mid to late 1950s (Sivinski
2018, p. 27; Stromberg et al. 2020, p. 176). The cienega at Las Playas
is now considered dead (Sivinski 2018, p. 8) due to agricultural and
industrial (i.e., copper mining) dewatering (Stromberg et al. 2020, p.
176). ``Dead cienegas'' are historical cienegas that no longer have
groundwater at or near the ground surface and likely have water tables
so severely depleted that restoration, given today's techniques
[[Page 35436]]
and economics, is not feasible (Sivinksi 2018, p. 14).
Agua Caliente, Arizona, United States (Extirpated)--Arizona eryngo
historically occurred at the Agua Caliente Ranch east of Tucson in Pima
County, Arizona, within the Santa Cruz River Basin (Stromberg et al.
2020, p. 176). This population was extirpated likely due to multiple
manipulations of the site that eliminated cienega habitat, including,
but not limited to, water diversion and vegetation clearing for
agricultural activities, pond impoundment, groundwater pumping, and
spring modification (Stromberg et al. 2020, p. 177; SWCA 2002, p. 11).
The property is now owned by Pima County Natural Resources, Parks
and Recreation and is managed as a regional park (Pima County Parks and
Recreation Department 1989, p. 2; Friends of Agua Caliente 2020,
entire). Agua Caliente Regional Park includes human-made ponds that
were once fed by water channeled from the springs. As a result of
reduced spring flows and extended drought, in 2004, Pima County began
pumping groundwater to maintain the main pond (Pond 1), a warm spring
(Pima County 2021, p. 2). Restoration of Pond 1, which included the use
of soil sealant to reduce seepage and conserve water, began in 2019,
and was completed in 2020 (Pima County 2020a, entire). As part of the
restoration, select palm trees (Phoenix spp.) and invasive cattails
(Typha spp.) were removed to encourage growth of native species, and a
small wetland on the northwest side of Pond 1 was created (Pima County
2020a, entire).
Experimental reintroductions of Arizona eryngo began in 2017, using
plants grown in a nursery with seeds collected from La Cebadilla
(Fonseca 2018, entire; Stromberg et al. 2020, p. 182). The initial
reintroduction effort in 2017 of 20 plants had limited success due to
javelina (Tayassu tajacu) damage, as well as placement of the plants at
sites where they experienced water stress (Fonseca 2018, entire). The
second effort in 2018 of 15 plants had improved success, but a number
of plants were eaten by gophers (Thomomys bottae) (Li 2019, p. 6) or
died of other causes. More recent reintroductions have resulted in the
establishment of additional plants, including in the small wetland and
wildlife island of Pond 1; however, efforts have not yet resulted in
the establishment of a self-sustaining Arizona eryngo population.
La Cebadilla, Arizona, United States (Extant)--Arizona eryngo
occurs in the La Cebadilla Cienega adjacent to the Tanque Verde Wash
east of Tucson in Pima County, Arizona, within the Santa Cruz River
basin (Stromberg et al. 2020, p. 177). The cienega is located on lands
owned by La Cebadilla Estates and the Pima County Regional Flood
Control District; the majority of plants occur on the privately owned
portion of the cienega. In 2019, Arizona eryngo was documented in a
number of colonies with a total spatial extent of 0.4 hectares (1.11
acres) (Li 2020a, p. 1). Some colony boundaries are defined by the
presence of bulrush and tree canopy (Li 2019, p. 1).
The Arizona eryngo population at La Cebadilla is estimated to be
about 30,000 aggregates--groups of clones, which are genetically
identical individuals that result from vegetative reproduction (Li
2020b, p. 1). Each clone has a unique basal stem, and multiple clones
can form a clustered aggregate that resembles an individual plant (Li
2020a, p. 2). While this is the largest of the four extant populations,
the plants occur in a very confined space.
The homeowners' association of La Cebadilla Estates manages the
cienega (the portion not owned by the Pima County Regional Flood
Control District) and nearby La Cebadilla Lake (also referred to as a
pond, to the west of the cienega). The homeowners' association has
enacted covenants that prevent development of the cienega or sale to
private developers (La Cebadilla Estates 2005, entire). The spring is
located on the western edge of the Cienega, and a concrete spring box
diverts some water to sustain the lake (Fonseca 2019, p. 2; Stromberg
et al. 2020, p. 177). Pima County Regional Flood Control District
manages their portion of the cienega as natural open space, which has a
restrictive covenant that limits development and protects natural
resources on the property. Both La Cebadilla Estates and Pima County
Regional Flood Control District are supportive of continued
conservation of the cienega and have implemented or authorized
conservation actions at the site.
Lewis Springs, Arizona, United States (Extant)--Arizona eryngo
occurs in the Lewis Springs Cienega just to the east of the San Pedro
River in Cochise County, within the San Pedro River Basin (Stromberg et
al. 2020, p. 177). The cienega is located within the San Pedro Riparian
National Conservation Area (SPRNCA) managed by the Bureau of Land
Management (BLM). The San Pedro riparian area, containing about 64 km
(40 mi) of the upper San Pedro River, was designated by Congress as a
National Conservation Area in 1988. The primary purpose for the
designation is to conserve, protect, and enhance the desert riparian
ecosystem, a rare remnant of what was once an extensive network of
similar riparian systems throughout the Southwest.
The Lewis Springs Complex currently has five groundwater outflows
and is comprised of multiple elongated wetlands generally oriented
northwest-southeast along a slope, totaling 1.2 hectares (3 acres)
(Radke 2013, entire; Simms 2019, entire; Stromberg et al. 2020, p. 177;
Li 2020a, p. 2). As of September 2019, four of the eight wetlands
support Arizona eryngo (Simms 2019, entire). Within these four
wetlands, Arizona eryngo occurs in six colonies with discrete
boundaries, the spatial extent of which was about 0.04 hectares (0.1
acres) in 2019 (Li 2020a, p. 1). Population estimates have been over
1,000 plants in recent years (Stromberg et al. 2020, p. 177; Li 2020a,
p. 1; Li 2020b, p. 1), with the most recent estimate of 1,813 plants
(Li 2020b, p. 1).
BLM has conducted some removal of the nonnative Johnsongrass
(Sorghum halepense) at Lewis Springs and is planning for additional
removal of the species. BLM is also planning experimental removal of
the native upland plant baccharis (Baccharis spp.) at Lewis Springs, as
well as establishment of additional populations and/or subpopulations
of Arizona eryngo at suitable sites within Lewis Springs and the
SPRNCA. BLM has collected seeds for propagation, banking, and seeding
trials, and has conducted one seeding trial at Lewis Springs.
Rancho Agua Caliente, Sonora, Mexico (Extant)--Arizona eryngo
occurs in the Agua Caliente Cienega on the privately owned Rancho Agua
Caliente east of Esqueda in the municipality of Nacozari de
Garc[iacute]a (S[aacute]nchez Escalante et al. 2019, p. 16; Stromberg
et al. 2020, p. 179). Rancho Agua Caliente is an active cattle ranch.
Based on aerial photographs, the cienega appears to be about 5 hectares
(12.3 acres) (Stromberg et al. 2020, p. 179); however, it may only be
about 1.5 hectares (3.7 acres) (S[aacute]nchez Escalante 2019, pers.
comm.).
This cienega is the only known site for Arizona eryngo in Sonora.
In 2018, hundreds of Arizona eryngo, including juveniles, occurred
along the marsh near the spring within a nearly 1-hectare (2.5-acres)
area (S[aacute]nchez Escalante et al. 2019, p. 16; S[aacute]nchez
Escalante 2019, pers. comm.). The estimated area occupied by Arizona
eryngo is larger than the other sites, while the population estimate is
quite low, thus indicating the population is more sparse or patchy than
La Cebadilla or Lewis Springs. Based on photography of the
[[Page 35437]]
site, it appears that Rancho Agua Caliente currently supports areas
with a range of soil moisture (from standing water to dry soils) and
open sun conditions.
Ojo Varele[ntilde]o, Chihuahua, Mexico (Extant)--Arizona eryngo
occurs at a privately owned hot springs spa, El Ojo Varele[ntilde]o,
located northwest of the municipality of Casas Grandes in Chihuahua
(S[aacute]nchez Escalante et al. 2019, p. 9; Stromberg et al. 2020, pp.
178). The site is within the San Miguel River Basin at the base of the
Piedras Verdes Mountains (Stromberg et al. 2020, p. 178). The extent of
the cienega is currently about 1 hectare (2.5 acres) and supports about
56 adult plants (S[aacute]nchez Escalante et al. 2019, p. 17) that
occupy an area of about 0.075 hectares (0.18 acres) (S[aacute]nchez
Escalante 2019, pers. comm.). No juveniles were documented.
Based on photography of the site, it appears that Ojo
Varele[ntilde]o currently supports areas with a range of soil moisture
(from standing water to dry soils) and sunlight conditions (from open
sun to highly shaded). The nonnative giant reed (Arundo donax) invasion
at the site is creating conditions with high amounts of shade and
little to no space for other plants. Springflow is collected in
concrete spa ponds (S[aacute]nchez Escalante et al. 2019, p. 28), which
likely affects the natural hydrology of the site.
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species is an endangered species or a threatened species. The
Act defines an ``endangered species'' as a species that is in danger of
extinction throughout all or a significant portion of its range, and a
``threatened species'' as a species that is likely to become an
endangered species within the foreseeable future throughout all or a
significant portion of its range. The Act requires that we determine
whether any species is an endangered species or a threatened species
because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition 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 Act's definition of an ``endangered
species'' or a ``threatened species'' only after conducting this
cumulative analysis and describing the expected effect on the species
now and in the foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as the
Service can reasonably determine that both the future threats and the
species' responses to those threats are likely. In other words, the
foreseeable future is the period of time in which we can make reliable
predictions. ``Reliable'' does not mean ``certain''; it means
sufficient to provide a reasonable degree of confidence in the
prediction. Thus, a prediction is reliable if it is reasonable to
depend on it when making decisions.
It is not always possible or necessary to define foreseeable future
as a particular number of years. Analysis of the foreseeable future
uses the best scientific and commercial data available and should
consider the timeframes applicable to the relevant threats and to the
species' likely responses to those threats in view of its life-history
characteristics. Data that are typically relevant to assessing the
species' biological response include species-specific factors such as
lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent a decision by
the Service on whether the species should be listed as an endangered or
threatened species under the Act. It does, however, provide the
scientific basis that informs our regulatory decisions, which involve
the further application of standards within the Act and its
implementing regulations and policies. The following is a summary of
the key results and conclusions from the SSA report; the full SSA
report can be found at Docket FWS-R2-ES-2020-0130 on https://www.regulations.gov.
To assess Arizona eryngo's viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency supports the ability of the species to withstand
environmental and demographic stochasticity (for example, wet or dry,
warm or cold years), redundancy supports the ability of the species to
withstand catastrophic events (for example, droughts, large pollution
events), and representation supports the ability of the species to
adapt over time to long-term changes in the environment (for example,
climate changes). In general, the more resilient and redundant a
species is and the more representation it has, the more likely it is to
sustain populations over time, even under changing environmental
conditions. Using these principles, we identified the species'
ecological requirements for survival and reproduction at the
individual, population, and species levels, and
[[Page 35438]]
described the beneficial and risk factors influencing the species'
viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time. We use this information to inform our regulatory
decision.
Summary of Biological Status and Threats
In this discussion, we review the biological condition of the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability. We note that, by using the
SSA framework to guide our analysis of the scientific information
documented in the SSA report, we have not only analyzed individual
effects on the species, but we have also analyzed their potential
cumulative effects. We incorporate the cumulative effects into our SSA
analysis when we characterize the current and future condition of the
species. To assess the current and future condition of the species, we
undertake an iterative analysis that encompasses and incorporates the
threats individually and then accumulates and evaluates the effects of
all the factors that may be influencing the species, including threats
and conservation efforts. Because the SSA framework considers not just
the presence of the factors, but to what degree they collectively
influence risk to the entire species, our assessment integrates the
cumulative effects of the factors and replaces a standalone cumulative
effects analysis.
Using various timeframes and the current and projected future
resiliency, redundancy, and representation, we describe the species'
levels of viability over time. For the Arizona eryngo to maintain
viability, its populations or some portion thereof must be resilient. A
number of factors influence the resiliency of Arizona eryngo
populations, including occupied area, abundance, and recruitment.
Elements of the species' habitat that determine whether Arizona eryngo
populations can grow to maximize habitat occupancy influence those
factors, thereby influencing the resiliency of populations. These
resiliency factors and habitat elements are discussed in detail in the
SSA report and summarized here.
Species Needs
Abundance
Larger plant populations have a lower risk of extinction than
smaller populations (Menges 2000, p. 78). Small populations are less
resilient and more vulnerable to the effects of demographic,
environmental, and genetic stochasticity and have a higher risk of
extinction than larger populations (Matthies et al. 2004, pp. 481,
485). Small populations may experience increased inbreeding, loss of
genetic variation, and ultimately a decreased potential to adapt to
environmental change (Matthies et al. 2004, p. 481). When rare plant
populations are very small (fewer than 100 individuals), they may
suffer from inbreeding depression (Maschinski and Albrecht 2017, p.
392). Furthermore, fewer pollinators visit plants in small and isolated
populations, which may lead to reduced pollination and lowered
fecundity (Matthies et al. 2004, p. 482).
For populations of Arizona eryngo to be resilient, abundance should
be high enough that local stochastic events do not eliminate all
individuals, allowing the overall population to recover from any one
event. A greater number of individuals in a population increases the
chance that a portion of the population will survive. The necessary
abundance or minimum viable population (MVP) size for Arizona eryngo is
unknown; however, estimations can be attained from literature. For
example, Pavlik (1996, p. 137) recommends MVP sizes ranging from 50
individuals to 2,500 individuals for the conservation of rare plants,
depending on various life-history characteristics of the taxon. Some of
the Arizona eryngo's life-history characteristics indicate that an MVP
may require higher abundance, while other characteristics indicate that
lower abundances may be sufficient. For example, the species is a
perennial and commonly produces ramets, which means that fewer
individuals are needed to achieve an MVP. Conversely, it is an
herbaceous plant, which means that an MVP may require higher abundance.
The other characteristics are unknown for this species. Based on our
current understanding of the species' life history, we conclude that an
initial MVP in the middle of the spectrum provided by Pavlik (1996, p.
137) is appropriate. Therefore, a population size of 1,225 may be
needed to achieve high resiliency for the Arizona eryngo.
Determinations of MVP usually take into account the effective
population size, rather than total number of individuals; 10
genetically identical individuals (for example, clones or ramets) would
have an effective population size of one. In the case of the Arizona
eryngo, we have estimates of abundance of individuals for each
population, but we do not know the ratio of ramets to genetically
unique individuals, although evidence indicates the species is highly
clonal. In cases like this, Tependino (2012, p. 946) suggests adjusting
the stem counts of rare clonal species to adjust for the inflated
population size from the inclusion of ramets. Therefore, to account for
the clonal nature of the Arizona eryngo, to estimate our final MVP we
added 50 percent to the estimated MVP, which resulted in a total of
about 1,840 plants needed to be a highly resilient population.
Recruitment
Arizona eryngo populations must also reproduce and produce
sufficient amounts of seedlings and ramets such that recruitment equals
or exceeds mortality. Ideally, we would know key demographic parameters
of the plant (i.e., survival, life expectancy, lifespan, the ratio of
ramets to genetically unique individuals) to estimate the percentage of
juveniles required in a population to achieve population stability or
growth. Because we currently do not know any of these parameters, we
are using the presence of juveniles as an important demographic factor
influencing resiliency, because it reflects successful recruitment.
Current population size and abundance reflects previous influences
on the population and habitat, while reproduction and recruitment
reflect population trends that may be stable, increasing, or decreasing
in the future. For example, a large, dense population of Arizona eryngo
that contains mostly old individuals may be able to withstand a single
stochastic event over the short term, but it is not likely to remain
large and dense into the future, as there are few young individuals to
sustain the population over time. A population that is less dense but
has many young individuals may be likely to grow denser in the future,
or such a population may be lost if a single stochastic event affects
many seedlings at once. Therefore, the presence of young individuals is
an important
[[Page 35439]]
indicator of population resiliency into the future.
Occupied Area
Highly resilient Arizona eryngo populations must occupy cienegas
large enough such that stochastic events and environmental fluctuations
that affect individual plants or colonies do not eliminate the entire
population. Repopulation through seed dispersal and germination and
ramet production within the cienega can allow the population to recover
from these events.
Larger functional cienegas are likely to support larger populations
of Arizona eryngo and are more likely to provide patches of suitable
habitat when small stochastic events and environmental fluctuations
occur. For example, during drought years, areas closer to spring seeps
and possibly areas with natural depressions (i.e., topographic
variation) may retain more moisture throughout the year than areas
farther away from seeps and slightly higher in elevation. Conversely,
during years with heavy rainfall, slightly higher elevation areas may
retain moist soils that are not inundated year-round, providing
suitable habitat for the species.
Areas currently occupied by Arizona eryngo range from about 0.04
hectares (0.1 acre) to 0.9 hectares (2.2 acres). Based on historical
and current estimates of cienega size and area occupied by Arizona
eryngo, we approximate that at minimum a resilient Arizona eryngo
population should occupy greater than 1 hectare (2.5 acres) within a
functional cienega.
Soil Moisture
Arizona eryngo populations also need moist to saturated soils year-
round. Arizona eryngo has been documented in standing water up to 2
centimeters to soil that is dry at the surface but saturated several
centimeters into the soil (Stromberg et al. 2020, p. 177). It is
hypothesized that flowering is determined, in part, by soil moisture
availability (i.e., plants do not flower in drier conditions when the
plants are more stressed) and that ramets are produced during drier
periods (Li 2019, p. 8; Stromberg et al. 2020, p. 179). Seedling
recruitment may be episodic, with greater recruitment success in wetter
years. Soils must remain sufficiently moist for successful seedling
recruitment, particularly in the hottest/driest time of the year
(normally May/June). If soils become too dry, other more drought-
tolerant species are likely to encroach and outcompete the Arizona
eryngo (Simms 2019, p. 6; Li 2019, p. 1), or if or if it becomes very
dry such that the roots are not in moist soil, the plant is likely to
die. If the soil is inundated with water (such that there is standing
water on the surface) for too long, other species that grow more
aggressively in mesic conditions are likely to outcompete the Arizona
eryngo (Li 2020, p. 2).
Sunlight
Highly resilient Arizona eryngo populations require full sun. Under
canopy cover, the species grows less densely, and flowering is reduced.
Tall native and nonnative vegetation appears to outcompete and suppress
growth of the Arizona eryngo. Additionally, dense vegetation appears to
hinder seedling recruitment (Li 2021b, pp. 3-4). While these species
may compete for sunlight, water, and nutrients, lack of sunlight may be
a primary factor driving the absence or decreased abundance of the
Arizona eryngo.
Risk Factors for the Arizona Eryngo
We reviewed the potential risk factors (i.e., threats, stressors)
that could be affecting the Arizona eryngo now and in the future. In
this final rule, we will discuss only those factors in detail that
could meaningfully impact the status of the species. Those risks that
are not known to have effects on Arizona eryngo populations, such as
overutilization for commercial and scientific purposes and disease, are
not discussed here but are evaluated in the SSA report. The primary
risk factors affecting the status of the Arizona eryngo are: (1)
Physical alteration of cienegas (Factor A), (2) water loss (Factor A),
and (3) changes in co-occurring vegetation (Factor A). These factors
are exacerbated by the ongoing and expected effects of climate change.
Direct harm or mortality due to herbivory or trampling (Factor C) may
also affect individuals and the seedbank, but not at levels likely to
affect species viability.
Physical Loss and Alteration of Cienega Habitat
Historically, cienegas were more common and larger than they are
today. Greater than 95 percent of the historical area of cienegas in
the southwestern United States and northwestern Mexico is now dry (Cole
and Cole 2015, p. 36). Functional cienegas were much more common prior
to the late 1800s, as evidenced by pollen and fire records, General
Land Office survey notes, and early trapper and settler diaries
(Hendrickson and Minckley 1985, p. 131; Fonseca 1998, p. 111; Cole and
Cole 2015, p. 36; Brunelle et al. 2018, p. 2). Estimates of cienega
abundance in the International Four Corners Region of the Southwest
(Arizona, Sonora, New Mexico, and Chihuahua) vary from hundreds to
thousands (Cole and Cole 2015, p. 36; Sivinski 2018, entire). Of the
155 cienegas that Cole and Cole (2015, p. 36) identified in the
International Four Corners Region, 87 (56 percent) are either dead or
so severely compromised that there is no prospect for their
restoration. In addition to the reduced abundance of cienegas in the
International Four Corners Region, the remaining cienegas are greatly
reduced in size, and due to many being severely incised, they are more
similar to creeks than marshes (Cole and Cole 2015, p. 36).
A number of complex factors, many of which are interrelated, led to
the historical loss and degradation of cienegas and continue to
contribute to this loss today. The primary factors include intensive
grazing of domestic livestock, the removal of beavers (Castor
canadensis) from regional streams and rivers, and agricultural
recontouring (Minckley et al. 2013a, p. 214; Cole and Cole 2015, p.
32). Intensive overgrazing by sheep and cattle from the late 1500s to
the late 1800s led to barren soil, erosion, headcutting (erosional
feature in a stream that contributes to lowering the water table of the
surrounding system), and increased frequency of or intensity of
destructive floods, all leading to the alteration or complete
destruction (complete loss of ecological function) of cienegas
(Minckley et al. 2013a, p. 214; Cole and Cole 2015, p. 32). Beaver
dams, once numerous within the range of the Arizona eryngo, slowed
water and created pools and wetlands along water courses, and enhanced
groundwater recharge; however, high levels of beaver trapping in the
1800s resulted in increased erosion and channel cutting of these once
complex, shallow wetlands (Gibson and Olden 2014, p. 395; Cole and Cole
2015, p. 32). Additionally, early settlers recontoured (e.g., diverted,
dammed, channelized) cienegas for agricultural, mining, disease
control, and other purposes; this resulted in further channelization
and concentrated flow, greatly reducing the size of cienegas and
further lowering the water table (Cole and Cole 2015, p. 32; Minckley
et al. 2013b, p. 78).
We expect that Arizona eryngo populations were more widespread and
occurred at historical cienegas that have lost their ecological
function due to physical alteration, such that populations were more
abundant, occurred closer to one another, and were more connected
(through pollination and seed dispersal) than they are currently. As a
result of these
[[Page 35440]]
lost cienegas, the four extant Arizona eryngo populations are now
disjunct.
Although grazing was one cause of the loss of historical cienega
habitat, grazing and trampling by livestock occur only occasionally at
the remaining Arizona eryngo populations. No grazing is authorized at
Lewis Springs, and we are not aware of any grazing occurring at La
Cebadilla and Ojo Varele[ntilde]o. Trespass livestock could enter Lewis
Springs and affect habitat in the cienega; although there was no
evidence of cattle in 2018 or 2019, there was evidence (i.e., scat and
light trailing) of a trespass horse in the area when Service biologists
visited the site in 2019. Cattle are present at Rancho Agua Caliente,
Sonora, and the habitat is somewhat disturbed by cattle (S[aacute]nchez
Escalante et al. 2019, p. 16). Livestock (e.g., livestock trailing and
gathering) can trample vegetation and expose and compact soil,
resulting in habitat erosion and altered hydrological function, but the
effects of livestock are dependent on many factors such as the
intensity, duration, and timing of grazing. In the absence of other
forms of disturbance (e.g., fire), it is possible that selective, well-
managed livestock grazing in the winter or spring could create habitat
disturbance and open sun conditions favoring Arizona eryngo seedling
establishment.
Other physical alterations that occurred in the past likely
continue to affect extant populations of Arizona eryngo through changes
in the natural hydrology of cienegas supporting the species. For
example, a berm that has been present at La Cebadilla since at least
1941, as well as various houses and roads adjacent and near the
cienega, all affect the natural hydrology of the site. Similarly, the
railroad that runs parallel to Lewis Springs likely affects the
hydrology of the cienega. Unlike the historical physical alterations
that severely degraded cienegas, these alterations (berm, railroad,
houses, etc.) have not destroyed cienega function.
Water Loss
Water loss in cienegas poses a significant threat to the Arizona
eryngo. Causes of water loss are complex, but the primary causes at
cienegas historically or currently supporting Arizona eryngo are: (1)
Groundwater pumping/withdrawal, (2) spring modification, (3) water
diversion, and (4) drought. These stressors are all exacerbated by
climate change. Groundwater pumping or withdrawal leads to aquifer
depletion and no or reduced outflow from springheads. Modification of
springheads reduces or eliminates springflow. Water diverted from
springheads reduces or eliminates the amount of water supporting the
cienega. Drought and warming also reduce springflow and the amount of
water in cienegas. Reduction in winter rain particularly leads to
reduced aquifer recharge. Climate change is expected to exacerbate
drought conditions, increase surface temperatures and
evapotranspiration, and reduce winter precipitation, all of which may
lead to a reduction in aquifer recharge and increased cienega drying.
Water loss in cienegas reduces the quantity and quality of habitat
for the Arizona eryngo. The species requires very moist to saturated
soils and possibly some standing water for seed germination. As water
is lost from cienegas, soils become drier, reducing habitat quality and
allowing woody and/or invasive vegetation to establish, further
reducing available habitat.
Water loss from cienegas caused the extirpation of the species at
two of the six cienegas known to historically support the Arizona
eryngo (Las Playas in New Mexico, and Agua Caliente in Arizona), and
all populations continue to be exposed to water loss. The sources of
water loss are discussed further below.
Groundwater withdrawal--The population at Las Playas was extirpated
primarily due to groundwater pumping for agriculture and the Playas
Smelter that caused the desiccation of the spring (Sivinski 2018, p.
27; Stromberg et al. 2020, p. 176). Groundwater withdrawal is also
occurring near Lewis Springs, La Cebadilla, and Agua Caliente. The use
of groundwater for agriculture, industry, and urban and rural
development has enabled significant human population growth in the arid
Southwest. Increased groundwater withdrawal can reduce or eliminate
springflow, thereby eliminating wetlands altogether (Johnson et al.
2016, p. 52).
The largest municipalities in the Sierra Vista subwatershed, within
which Lewis Springs occurs, are Sierra Vista, Bisbee, Tombstone, and
Huachuca City. Within these areas, the human population is increasing,
as is development distributed in rural parts of the subwatershed (Leake
et al. 2008, p. 1). This growing population is dependent on groundwater
to meet its water consumption needs. Water outflow from the
subwatershed, including water withdrawn by pumping, exceeds natural
inflow to the regional aquifer within the subwatershed (Leake et al.
2008, p. 2). As a result, groundwater levels in parts of the
subwatershed are declining, and groundwater storage is being depleted
(i.e., a negative water budget).
Groundwater pumping in the area of Lewis Springs, up to several
kilometers away, may be affecting the regional groundwater flow to the
wetlands along the San Pedro River, including Lewis Springs (Stromberg
et al. 2020, p. 181). The continued decline of groundwater levels
upgradient from perennial river reaches will eventually diminish the
base flow of the San Pedro River and impact the riparian ecosystem
within the SPRNCA (Leake et al. 2008, p. 2). This groundwater use over
the past century has been so profound that the effects of pumping over
the past century will eventually capture and eliminate surface flow
from the river, even if all groundwater pumping were to stop (Gungle et
al. 2016, p. 29). Models show the area of Lewis Springs as being one of
the areas of greatest groundwater loss in the basin (Leake et al. 2008,
p. 14).
The aquifer supporting the La Cebadilla Springs could be reduced
from numerous private wells (including the Tanque Verde Guest Ranch)
producing water from the aquifer that feeds the springs (Eastoe and
Fonseca 2019, pers. comm.). It is unknown how quickly pumping a mile or
two away from the springs might affect the springs themselves (Eastoe
and Fonseca 2019, pers. comm.).
We do not have information on the source of water supplying the
springs or about the amount of groundwater use at Rancho Agua Caliente
or Ojo Varele[ntilde]o, both in Mexico.
Spring modification--The Arizona eryngo population at Agua Caliente
was extirpated due to a number of manipulations of the site that
eliminated cienega habitat, including, but not limited to, water
diversion and vegetation clearing for agricultural activities, pond
impoundment, groundwater pumping, and spring modification (i.e., the
springs were blasted in the 1930s and again in the 1960s) that
significantly decreased the water flow (Stromberg et al. 2020, p. 177;
Pima County 2021, p. 16; Friends of Agua Caliente 2020, entire; SWCA
2002, p. 11).
Water diversion--The Arizona eryngo population at La Cebadilla has
been exposed to water diversion for many decades; this diversion may
have led to a reduction in the size of the cienega, but enough water
still flows to maintain the cienega and support the largest documented
population (Fonseca 2019, p. 2; Stromberg et al. 2020, p. 177). Cienega
habitat was eliminated from Agua Caliente due to multiple
manipulations, including diversion of spring water via canals and pipes
for agricultural purposes and pond
[[Page 35441]]
impoundment (Pima County 2021, p. 16).
Less is known about water loss associated with the cienegas
supporting the Arizona eryngo in Mexico, but we are aware that the
municipality of Casas Grandes is interested in installing a pipeline
from the spring at El Ojo Varele[ntilde]o to supply water to the
Universidad Tecnol[oacute]gica de Casas Grandes. Currently at Ojo
Varele[ntilde]o, springflow is collected in concrete spa ponds, which
likely affects the natural hydrology of the site.
Drought and warming--All Arizona eryngo populations are exposed to
drought, as well as warming temperatures from climate change. Decreased
precipitation and increased temperatures due to climate change will
exacerbate declines in surface and groundwater levels, which will cause
further drying of cienega habitat required by the Arizona eryngo.
Climate models indicate that the transition to a more arid climate
is already underway and predict that in this century the arid regions
of the southwestern United States will become drier (i.e., decreased
precipitation) and warmer (i.e., increased surface temperatures), and
have fewer frost days, decreased snow pack, increased frequency of
extreme weather events (heat waves, droughts, and floods), declines in
river flow and soil moisture, and greater water demand by plants,
animals, and humans (Archer and Predick 2008, p. 23; Garfin et al.
2013, pp. 5-6). Increasing dryness in the southwestern United States
and northern Mexico is predicted to occur as early as 2021-2040 (Seager
et al. 2007, p. 1181). Climate modeling of the southwestern United
States shows consistent projections of drying, primarily due to a
decrease in winter precipitation (Collins et al. 2013, p. 1080). For
both Pima and Cochise Counties, where the La Cebadilla and Lewis
Springs populations occur, the average daily maximum temperature, under
both lower (i.e., representative concentration pathway (RCP) 4.5) and
higher (i.e., RCP 8.5) emissions scenarios, will increase by mid-
century (Climate Explorer 2020).
Climate change over the 21st century is projected to reduce
renewable surface water and groundwater resources in most dry
subtropical regions (IPCC 2014, p. 69). Over the next 100 years,
groundwater recharge in the San Pedro basin is expected to decrease 17
to 30 percent, depending on the climate scenario considered (Serrat-
Capdevila et al. 2007, p. 63), and average annual base flow will be
half the base flow in 2000. As the area gets drier, the San Pedro
aquifer groundwater overdraft will become more severe as recharge
declines and groundwater pumping increases (Meixner et al. 2016, p.
135). For the purposes of our analysis, we chose RCP 4.5 and RCP 8.5
(IPCC 2014, p. 8) to assess future condition of the Arizona eryngo.
These climate scenarios were incorporated into our future scenarios of
the status of the Arizona eryngo in the SSA report.
Summary of water loss--In summary, water loss has caused the
extirpation of two of six known populations of the Arizona eryngo and
has affected the current viability of all extant populations. Both
extant U.S. populations are exposed to water loss through groundwater
withdrawal, and one of these (La Cebadilla) is also exposed to spring
diversion. Groundwater withdrawal, particularly when exacerbated by
climate change, is a primary threat to the survival of the Arizona
eryngo at Lewis Springs and La Cebadilla. Less is known about water
loss associated with the two populations in Mexico, but spring
diversion is proposed at one site supporting the Arizona eryngo, and it
is likely that the species is vulnerable to groundwater withdrawal.
Drought and warming as a result of climate change affects all
populations, particularly when combined with groundwater withdrawal and
diversion.
Change in Vegetation at Cienegas
The invasion of vegetation that reduces full sun conditions poses a
threat to the Arizona eryngo. Changes in vegetation at cienegas are
primarily from fire suppression, introduction of nonnative plant
species, decreased flood events, and changes in hydrology and climate.
Prior to the arrival of European settlers, burning of cienegas by
indigenous people was frequent enough to exclude most woody plants
(e.g., hackberry (Celtis spp.), buttonbush (Cephalanthus spp.),
cottonwood (Populus spp.), ash (Fraxinus spp.), and willow (Salix
spp.)) and suppress bulrush from cienegas and promote growth of native
grasses (Davis et al. 2002, p. 1; Cole and Cole 2015, p. 32). Extant
cienegas now have less diversity of annual and disturbance-adapted
native understory species and an increase in native woody, clonal, and
nonnative plants (Stromberg et al. 2017, p. 10). As water levels in
cienegas decrease, woody plants invade without regular disturbance
(e.g., fires, floods) to the system (Huxman and Scott 2007, p. 1).
Shifts from herbaceous wetland vegetation to more deeply rooted
riparian trees have been well documented at wetlands with lowered water
tables (Stromberg et al. 2020, p. 182). These woody plants shade out
Arizona eryngo and cause water level declines in cienegas through
increased evapotranspiration, particularly in the summer (Johnson et
al. 2016, p. 83).
Invasive, nonnative plants (e.g., giant reed, Johnsongrass) are of
concern because they often quickly colonize an area and aggressively
compete with native species such as the Arizona eryngo for sunlight,
water, and nutrients. Giant reed is a fast-growing, tall (up to 6
meters (m) (20 feet (ft)), perennial, hydrophytic (water-loving) grass
that grows in riparian areas, streams, irrigation ditches, and
wetlands. It is an aggressive invader that rapidly spreads into a thick
monoculture that outcompetes and shades out other vegetation (Frandsen
1997, p. 245; DiPietro 2002, p. 9). Giant reed is fire-adapted and
resprouts from extensive underground rhizomes even after very hot fires
that kill native vegetation (DiPietro 2002, p. 9). Additionally, it
uses large amounts of water, thereby reducing the amount of water
available for native vegetation (DiPietro 2002, p. 10).
Johnsongrass is a fast-growing, tall, invasive perennial grass that
thrives in a variety of environments and climates (Peerzada et al.
2017, p. 2). It mostly grows at moist sites (e.g., irrigation canals,
cultivated fields, field edges, pastures), and in Arizona, it is known
as a riparian weed in the Sonoran and Chihuahuan Deserts. Johnsongrass
impacts the growth of native plants; it is difficult to control and has
become resistant to herbicides, particularly glyphosate (Peerzada et
al. 2017, p. 2).
At three of four cienegas supporting the Arizona eryngo (Lewis
Springs, La Cebadilla, and Ojo Varele[ntilde]o), an increase in woody
vegetation and nonnative plant species has been documented. This
vegetation is outcompeting the Arizona eryngo for sunlight and space,
likely causing a decrease in population size and extent at these sites.
At Lewis Springs, Johnsongrass is aggressively invading and appears to
be suppressing Arizona eryngo, particularly in the drier areas of the
wetlands (Li 2019, entire; Simms 2019, entire). Johnsongrass has been
present at this site since at least 2009. In the drier areas of the
wetlands, baccharis is encroaching and appears to be suppressing
Arizona eryngo; no Arizona eryngo plants have been found growing in the
understory of baccharis (Li 2019, entire; Simms 2019, entire). At La
Cebadilla, aerial imagery indicates that mesquite (Prosopis spp.) is
invading the cienega, and cottonwood also appears to be shading out
Arizona
[[Page 35442]]
eryngo (Fonseca 2019, entire). Velvet ash (Fraxinus velutina) trees are
invading the cienega and shading out Arizona eryngo as well (Li 2020b,
p. 3). At Ojo Varele[ntilde]o, many nonnative plant species also occur,
with a particularly aggressive invasion of giant reed (S[aacute]nchez
Escalante et al. 2019, pp. 9-10).
In summary, nonnative Johnsongrass and giant reed are likely to
continue to aggressively invade Lewis Springs and Ojo Varele[ntilde]o.
These nonnative plant species may contribute to the near-term
extirpation of Arizona eryngo populations at these sites. Woody
vegetation encroachment at La Cebadilla and Lewis Springs is also
likely to continue, further degrading habitat conditions.
Direct Harm and Mortality
Livestock, such as cattle and horses, and native herbivores (both
invertebrate and vertebrate) may cause harm or mortality to Arizona
eryngo plants through trampling, herbivory, or uprooting. Because
mature plants have large, fibrous leaves, cattle are more likely to
consume young plants at an early growth stage. As discussed above,
cattle are present at Rancho Agua Caliente, and trespass cattle and
horses could enter Lewis Springs and trample plants, consume flowers,
and reduce the seedbank of the Arizona eryngo. To our knowledge, no
livestock are present at La Cebadilla or Ojo Varele[ntilde]o. At the
Agua Caliente reintroduction site in Arizona, javelina uprooted and
killed young plants, and gophers ate young reintroduced plants (Fonseca
2018, p. 1; Li 2019, p. 6).
Many invertebrates have been observed on Arizona eryngo plants at
La Cebadilla and Lewis Springs (Stromberg et al. 2020, p. 175; Li 2019,
p. 2; Simms 2019, p. 1). Some of these invertebrates may be floral
herbivores, but they do not appear to be of concern for the species'
viability.
In summary, while herbivory and trampling may harm individual
Arizona eryngo plants and the seedbank, they are not significant
threats to the species.
Summary
Our analysis of the past, current, and future influences on the
needs of the Arizona eryngo for long-term viability revealed that there
are two that pose the greatest risk to future viability: water loss
(groundwater withdrawal and water diversion) and invasion of nonnative
and woody plant species, both of which are exacerbated by drought and
warming caused by climate change. Water loss reduces the availability
of moist soils, and nonnative and woody plant species outcompete
Arizona eryngo for sunlight, space, and water, thereby reducing the
quantity and quality of habitat.
Species Condition
Here we discuss the current condition of the Arizona eryngo, taking
into account the risks to those populations that are currently
occurring. We consider climate change to be currently occurring and
exacerbating effects of drought, warming, groundwater withdrawal,
diversion, and invasion of nonnative and woody plant species. In the
SSA report, for each population, we developed and assigned condition
categories for three population factors and two habitat factors that
are important for viability of the Arizona eryngo. The condition scores
for each factor were then used to determine an overall condition of
each population: high, moderate, low, or functionally extirpated. These
overall conditions translate to our presumed probability of persistence
of each population, with populations in high condition having the
highest presumed probability of persistence over 30 years (greater than
90 percent), populations in moderate condition having a presumed
probability of persistence that falls between 60 and 90 percent, and
populations in low condition having the lowest probability of
persistence (between 10 and 60 percent). Functionally extirpated
populations are not expected to persist over 30 years or are already
extirpated.
Overall, there are four remaining populations of Arizona eryngo,
all restricted to small cienegas in the Sonoran and Chihuahuan Deserts
in Arizona and Mexico. Historically, Arizona eryngo populations were
likely connected to one another, but today they are small and isolated
due to cienega loss throughout the region. Repopulation of extirpated
locations is extremely unlikely without human assistance. Two
populations are currently in moderate condition and two are in low
condition, and two have been extirpated. The four extant populations
are described below.
La Cebadilla
La Cebadilla contains the largest population of the Arizona eryngo,
with a population estimate of over 30,000 individuals. However, this
population occurs in a very small area; the occupied area is
approximately 0.04 hectares (1.1 acres), and the population depends on
stable groundwater to maintain springflow into the cienega. The cienega
has been altered by increased presence of trees, bank erosion, pasture
grading, utility construction, and subdivision development (Fonseca
2019, p. 3). Historical images indicate that the cienega was more
extensive in 1941, with fewer trees on some margins of the cienega and
no forest on the southern margin of the cienega (Fonseca 2019, p. 1).
Due to the encroachment of woody vegetation, this site has varied
sunlight conditions, with more shade currently than in the past.
The cienega has been shrinking, indicating the aquifer is being
depleted (Fonseca 2019, pers. comm.). The aquifer supporting the La
Cebadilla springs supports numerous private wells (including the Tanque
Verde Guest Ranch) (Eastoe and Fonseca 2019, pers. comm.). In addition
to groundwater use, aquifer depletion could also result from increased
evapotranspiration of tree cover and stream channel adjustments.
La Cebadilla Estates and the Pima County Regional Flood Control
District (PCRFCD) are committed to the conservation of the unique
ecological diversity of La Cebadilla cienega and are working to reduce
woody vegetation. The homeowners' association of La Cebadilla Estates
manages their portion of the cienega as common property for the common
use and enjoyment of its members. Under an agreement with Partners for
Fish and Wildlife, in 2021, La Cebadilla Estates supported the
experimental removal of young velvet ash trees encroaching on the
cienega, which was successful at improving conditions for Arizona
eryngo (Li 2021b, p. 1).
PCRFCD manages their portion of the cienega as natural open space,
which has a restrictive covenant that limits development and protects
natural resources on the property. PCRFCD has implemented actions to
conserve Arizona eryngo at La Cebadilla, such as removing parts of a
fallen cottonwood tree that were covering Arizona eryngo (Li 2020b, p.
2), and is planning additional actions.
Because of the small extent of the population and the encroachment
of woody vegetation, the Arizona eryngo population is currently in
moderate condition and is at risk of extirpation from decreased
springflow due to continuing loss of groundwater from the aquifer.
Lewis Springs
The population of Arizona eryngo in Lewis Springs, estimated at
1,813 plants, occurs along a very narrow cienega parallel to a
railroad, occupying about 0.04 hectares (0.1 acres) (Li 2020a, p. 1).
In 2005, there were more than a
[[Page 35443]]
dozen springs and seeps in the wetland complex; as of 2019, some of the
wetland patches appear to be drying, with soil drier at several sites
than it had been in 2005 (Simms 2019, entire). The water source of
Lewis Springs Cienega is supplied by mountain front recharge (westward
flow from the Mule Mountains and eastward flow from the Huachuca
Mountains) (Baillie et al. 2007, p. 7; Stromberg et al. 2020, p. 177).
Groundwater pumping up to several kilometers away may be affecting the
regional groundwater flow to the wetlands along the San Pedro River,
including Lewis Springs (Stromberg et al. 2020, p. 181).
Nonnative Johnsongrass is aggressively invading Lewis Springs and
appears to be suppressing Arizona eryngo, particularly in the drier
areas of the cienega (Simms 2019, p. 22; Li 2020a, p. 2). Similarly,
baccharis has been invading and appears to be suppressing Arizona
eryngo, as no Arizona eryngo plants were found growing in the
understory of baccharis (Simms 2019, p. 6; Li 2019, p. 1). In the
wetter areas of the cienega where the soil is saturated and surface
water is generally present, common spikerush (Eleocharis palustris) and
bulrush appear to suppress Arizona eryngo (Li 2020a, p. 2).
BLM has conducted some removal of Johnsongrass at Lewis Springs and
is currently planning for additional removal of the species. BLM is
also planning experimental removal of baccharis shrubs at Lewis
Springs, and they are considering establishment of additional
populations and/or subpopulations of Arizona eryngo at suitable sites
within Lewis Springs and the SPRNCA. BLM is also collecting seeds for
propagation and banking.
Because of the moderate population size, extremely small population
extent, decreasing springflow and increased drying of soils, and plant
species invasion, Lewis Springs is currently in moderate condition. The
population is currently at risk of extirpation from drying due to
drought, groundwater pumping, and invasion of nonnative Johnsongrass.
Rancho Agua Caliente, Mexico
The Arizona eryngo population at Rancho Agua Caliente occupies
about 1 ha (2.5 acres). The population is estimated to be several
hundred plants, including juveniles (S[aacute]nchez Escalante et al.
2019, p. 16; S[aacute]nchez Escalante 2019, pers. comm.). This cienega
is the only known population of Arizona eryngo in Sonora.
Rancho Agua Caliente is an active cattle ranch, and Arizona eryngo
habitat is somewhat disturbed by cattle (S[aacute]nchez Escalante et
al. 2019, p. 16), which may help create open sun conditions for the
species. We have no information on the groundwater source for the
spring.
Because of the small numbers of individuals at Rancho Agua
Caliente, the population is currently in low condition and is at risk
of extirpation due to drought and drying of habitat.
Ojo Varele[ntilde]o, Mexico
The Arizona eryngo population at Ojo Varele[ntilde]o contains about
56 adult plants (S[aacute]nchez Escalante et al. 2019, p. 17) in a
0.075-hectare (0.18-acre) area (S[aacute]nchez Escalante 2019, pers.
comm.). No juveniles have been documented at this site.
Giant reed has been aggressively invading Ojo Varele[ntilde]o
(S[aacute]nchez Escalante et al. 2019, p. 10), and it appears that the
site has variable soil moisture and sunlight conditions. The giant reed
invasion is creating conditions with high amounts of shade and little
to no space for other plants. Springflow is collected in concrete spa
ponds (S[aacute]nchez Escalante et al. 2019, p. 28), which likely
affects the natural hydrology of the site. Currently, we do not have
information on the source of water supplying the springs or the amount
of groundwater use at this site.
Because of the very low population numbers and the lack of
juveniles, the population of Arizona eryngo at Ojo Varele[ntilde]o is
currently in low condition. A small change in the water levels at the
cienega or further invasion by giant reed could cause the extirpation
of the population in the near future.
Conservation Efforts and Regulatory Mechanisms
Conservation efforts are occurring at multiple sites supporting
Arizona eryngo. As discussed above, for example, at Lewis Springs, BLM
has been assessing and planning the removal of nonnative and select
woody vegetation and has conducted some removal of Johnsongrass. BLM
has collected seeds for propagation, banking, and seeding trials, and
has conducted one seeding trial at Lewis Springs. Additionally, BLM has
introduced Arizona eryngo to the Las Cienegas National Conservation
Area. Pima County has been working to reintroduce Arizona eryngo to
Agua Caliente and introduce it to Canoa Ranch. La Cebadilla Estates has
been supportive of various survey, monitoring, and conservation actions
on their property. These conservation efforts have significantly
contributed to our knowledge of Arizona eryngo and conservation of the
species; however, at this time, these efforts are inadequate to prevent
the need for listing because major threats, such as water loss and
drought and climate change, are still present.
Determination of Arizona Eryngo's Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines an ``endangered species'' as a
species in danger of extinction throughout all or a significant portion
of its range, and a ``threatened species'' as a species likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether a species meets the definition of endangered species
or threatened species because of any of the following factors: (A) The
present or threatened destruction, modification, or curtailment of its
habitat or range; (B) overutilization for commercial, recreational,
scientific, or educational purposes; (C) disease or predation; (D) the
inadequacy of existing regulatory mechanisms; or (E) other natural or
manmade factors affecting its continued existence.
Status Throughout All of Its Range
After evaluating threats to the species and assessing the
cumulative effect of the threats under the section 4(a)(1) factors, we
found that the Arizona eryngo has declined in abundance and
distribution. At present, most of the known populations exist in very
low abundances, and all populations occur in extremely small areas.
Furthermore, existing available habitats are reduced in quality and
quantity, relative to historical conditions. Our analysis revealed
three primary threats that caused these declines and pose a meaningful
risk to the viability of the species. These threats are primarily
related to habitat changes (Factor A from the Act): Physical alteration
of cienegas, water loss, and changes in co-occurring vegetation, all of
which are exacerbated by the effects of climate change.
Because of historical and current modifications of cienegas and
groundwater withdrawals from the aquifers supporting occupied cienegas,
Arizona eryngo populations are now fragmented and isolated from one
another and unable to recolonize following extirpations. These
populations are largely in a state of
[[Page 35444]]
chronic degradation due to water loss and changes in co-occurring
vegetation, affecting soil moisture and open canopy conditions and
limiting the species' resiliency. Given the high risk of a catastrophic
drought or groundwater depletion, both of which are exacerbated by
climate change, all Arizona eryngo populations are at a high or
moderate risk of extirpation. Historically, the species, with a larger
range of likely interconnected populations, would have been more
resilient to stochastic events because even if some populations were
extirpated by such events, they could be recolonized over time by
dispersal from nearby surviving populations. This connectivity, which
would have made for a highly resilient species overall, has been lost,
and with two populations in low condition and two in moderate
condition, the remnant populations are all at risk of loss.
Our analysis of the Arizona eryngo's current conditions, using the
best available information, shows that the Arizona eryngo is in danger
of extinction throughout all of its range due to the severity and
immediacy of threats currently impacting the species. We find that a
threatened species status is not appropriate because of the Arizona
eryngo's currently contracted range, because the species' populations
are fragmented from one another, and because the threats to the species
are currently ongoing and occurring across its entire range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. We have determined that the Arizona eryngo is in danger of
extinction throughout all of its range and accordingly did not
undertake an analysis of any significant portions of its range. Because
the Arizona eryngo warrants listing as endangered throughout all of its
range, our determination is consistent with the decision in Center for
Biological Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020),
in which the court vacated the aspect of the Final Policy on
Interpretation of the Phrase ``Significant Portion of Its Range'' in
the Endangered Species Act's Definitions of ``Endangered Species'' and
``Threatened Species'' (79 FR 37578; July 1, 2014) that provided 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.
Determination of Status
Our review of the best available scientific and commercial
information indicates that the Arizona eryngo meets the Act's
definition of an endangered species. Therefore, we are listing the
Arizona eryngo as an endangered species in accordance with sections
3(6) and 4(a)(1) of the Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies and
the prohibitions against certain activities are discussed, in part,
below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The recovery planning process involves the
identification of actions that are necessary to halt or reverse the
species' decline by addressing the threats to its survival and
recovery. The goal of this process is to restore listed species to a
point where they are secure, self-sustaining, and functioning
components of their ecosystems.
Recovery planning consists of preparing draft and final recovery
plans, beginning with the development of a recovery outline and making
it available to the public within 30 days of a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions and describes the process to be used to
develop a recovery plan. Revisions of the plan may be done to address
continuing or new threats to the species, as new substantive
information becomes available. The recovery plan also identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Recovery teams (composed of
species experts, Federal and State agencies, nongovernmental
organizations, and stakeholders) are often established to develop
recovery plans. When completed, the recovery outline, draft recovery
plan, and the final recovery plan will be available on our website
(https://www.fws.gov/endangered), or from our Arizona Ecological
Services Field Office (see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
Following publication of this final rule, funding for recovery
actions will be available from a variety of sources, including Federal
budgets, State programs, and cost-share grants for non-Federal
landowners, the academic community, and nongovernmental organizations.
In addition, pursuant to section 6 of the Act, the States of Arizona
and New Mexico will be eligible for Federal funds to implement
management actions that promote the protection or recovery of the
Arizona eryngo. Information on our grant programs that are available to
aid species recovery can be found at: https://www.fws.gov/grants.
Please let us know if you are interested in participating in
recovery efforts for the Arizona eryngo. Additionally, we invite you to
submit any new information on this species whenever it becomes
available and any information you may have for recovery planning
purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is listed as an endangered or
threatened species and with respect to its critical habitat, if any is
designated. Regulations
[[Page 35445]]
implementing this interagency cooperation provision of the Act are
codified at 50 CFR part 402. 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 any
endangered or threatened species or destroy or adversely modify its
critical habitat. If a Federal action may affect a listed species or
its critical habitat, the responsible Federal agency must enter into
consultation with the Service.
Federal agency actions within the species' habitat that may require
conference or consultation or both as described in the preceding
paragraph include management and any other landscape-altering
activities on Federal lands administered by the BLM or groundwater use
by Fort Huachuca or other Federal agencies (or permitted or funded by a
Federal agency) within the hydrological influence of Lewis Springs or
La Cebadilla.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered plants.
The prohibitions of section 9(a)(2) of the Act, codified at 50 CFR
17.61, make it illegal for any person subject to the jurisdiction of
the United States to: import or export; remove and reduce to possession
from areas under Federal jurisdiction; maliciously damage or destroy on
any such area; remove, cut, dig up, or damage or destroy 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; deliver,
receive, carry, transport, or ship in interstate or foreign commerce,
by any means whatsoever and in the course of a commercial activity; or
sell or offer for sale in interstate or foreign commerce an endangered
plant. Certain exceptions apply to employees of the Service, the
National Marine Fisheries Service, other Federal land management
agencies, and State conservation agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered plants under certain circumstances. Regulations
governing permits are codified at 50 CFR 17.62. With regard to
endangered plants, a permit may be issued for scientific purposes or
for enhancing the propagation or survival of the species. There are
also certain statutory exemptions from the prohibitions, which are
found in sections 9 and 10 of the Act.
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 will or will not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a final listing
on proposed and ongoing activities within the range of a listed
species. Based on the best available information, the following actions
are unlikely to result in a violation of section 9, if these activities
are carried out in accordance with existing regulations and permit
requirements; this list is not comprehensive:
(1) Normal agricultural and silvicultural practices, including
herbicide and pesticide use, that are carried out in accordance with
any existing regulations, permit and label requirements, and best
management practices;
(2) Normal residential landscaping activities on non-Federal lands;
and
(3) Recreational use with minimal ground disturbance.
Based on the best available information, the following activities
may potentially result in a violation of section 9 of the Act if they
are not authorized in accordance with applicable law; this list is not
comprehensive:
(1) Unauthorized handling, removing, trampling, or collecting of
the Arizona eryngo on Federal land; and
(2) Removing, cutting, digging up, or damaging or destroying the
Arizona eryngo in knowing violation of any law or regulation of the
State of Arizona or in the course of any violation of a State criminal
trespass law.
Questions regarding whether specific activities would constitute a
violation of section 9 of the Act should be directed to the Arizona
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
II. Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation also does not allow the
government or public to access private lands. Such designation does not
require implementation of restoration, recovery, or enhancement
measures by non-Federal landowners. Where a landowner requests Federal
agency funding or authorization for an action that may affect a listed
species or critical habitat, the Federal agency would be required to
consult with the Service under section 7(a)(2) of the Act. However,
even if the Service were to conclude that the proposed activity would
result in destruction or adverse modification of the critical habitat,
the Federal action agency and the landowner are not required to abandon
the proposed activity, or to restore or recover the species; instead,
they must implement ``reasonable and prudent alternatives'' to avoid
destruction or adverse modification of critical habitat.
[[Page 35446]]
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat).
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. The implementing regulations at 50 CFR 424.12(b)(2) further
delineate unoccupied critical habitat by setting out three specific
parameters: (1) When designating critical habitat, the Secretary will
first evaluate areas occupied by the species; (2) the Secretary will
only consider unoccupied areas to be essential where a critical habitat
designation limited to geographical areas occupied by the species would
be inadequate to ensure the conservation of the species; and (3) for an
unoccupied area to be considered essential, the Secretary must
determine that there is a reasonable certainty both that the area will
contribute to the conservation of the species and that the area
contains one or more of those physical or biological features essential
to the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report and information developed during the
listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge.
As the regulatory definition of ``habitat'' reflects (50 CFR
424.02), habitat is dynamic, and species may move from one area to
another over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and (3) the prohibitions found in section 9 of the Act.
Federally funded or permitted projects affecting listed species outside
their designated critical habitat areas may still result in jeopardy
findings in some cases. These protections and conservation tools will
continue to contribute to recovery of this species. Similarly, critical
habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans
(HCPs), or other species conservation planning efforts if new
information available at the time of these planning efforts calls for a
different outcome.
Physical or Biological Features Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and
which may require special management considerations or protection. The
regulations at 50 CFR 424.02 define ``physical or biological features
essential to the conservation of the species'' as the features that
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, prey,
vegetation, symbiotic species, or other features. A feature may be a
single habitat characteristic or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity. For example,
physical features essential to the conservation of the species might
include gravel of a particular size required for spawning, alkaline
soil for seed germination, protective cover for migration, or
susceptibility to flooding or fire that maintains necessary early-
successional habitat characteristics. Biological features might include
prey species, forage grasses, specific kinds or ages of trees for
roosting or nesting, symbiotic fungi, or absence of particular level of
nonnative species consistent with conservation needs of the listed
species. The features may also be combinations of habitat
characteristics and may encompass the relationship between
characteristics or the necessary amount of a characteristic essential
to support the life history of the species.
In considering whether features are essential to the conservation
of the species, we may consider an appropriate quality, quantity, and
spatial and temporal arrangement of habitat characteristics in the
context of the life-history needs, condition, and status of the
species. These characteristics include, but are not limited to, space
for individual and population growth and for normal behavior; food,
water, air, light, minerals, or other nutritional or physiological
requirements; cover or shelter; sites for breeding, reproduction, or
rearing (or development) of offspring; and habitats that are protected
from disturbance.
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential to
the
[[Page 35447]]
conservation of the Arizona eryngo from studies of the species'
habitat, ecology, and life history as described below. Additional
information can be found in the SSA report (Service 2020, entire;
available on https://www.regulations.gov under Docket No. FWS-R2-ES-
2020-0130). We have determined that the following physical or
biological features are essential to the conservation of Arizona
eryngo:
(1) Cienegas within the Chihuahuan and Sonoran Deserts:
(a) That contain permanently moist to saturated, organic, alkaline
soils with some standing water in winter and that are moist at or just
below the surface in summer; and
(b) That have functional hydrological processes and are sustained
by springflow via discharge of groundwater.
(2) Areas of open canopy throughout the cienega.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection. The features essential to the conservation of this species
may require special management considerations or protection to reduce
the following threats: physical alteration of cienegas, water loss, and
changes in co-occurring vegetation. Management activities that could
ameliorate these threats include, but are not limited to: Use best
management practices (BMPs) to minimize erosion and sedimentation;
remove and control invasive, nonnative species (e.g., Johnsongrass)
that encroach on critical habitat; selectively manage woody vegetation
that encroaches on critical habitat; exclude livestock, or in some
instances where such management would further the conservation of
cienega habitat and the species, use highly managed grazing; avoid or
minimize groundwater withdrawal to maintain adequate springflow to
maintain cienegas; and avoid springflow diversion and springhead
modification to maintain springflow to cienegas.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat. Arizona eryngo is well-established
at two historical locations, Lewis Springs and La Cebadilla, has been
reintroduced at another historical location where it was extirpated
(Agua Caliente), and has been introduced at several cienegas lacking
historical records of occupancy. Introductions have recently been
initiated at several additional locations, with the spreading of seeds
and planting of seedlings. However, we do not consider these
introductions to result in occupancy until fully mature, reproductive
plants and production of seedlings have become established. Therefore,
areas occupied at the time of listing include three locations: Lewis
Springs, La Cebadilla, and Agua Caliente. Other sites, such as Las
Cienegas National Conservation Area and St. David Cienega, where
plantings or seed scattering recently occurred but no adult plants have
become established, are considered to be unoccupied. Because we lack
information on the environmental conditions of these (or any other)
unoccupied sites to help us determine whether they can support the
Arizona eryngo, we cannot determine that they will contribute to the
long-term conservation of the species. Therefore, we are not
designating any areas outside the geographical area occupied by the
species as critical habitat.
In summary, for areas within the geographic area occupied by the
species at the time of listing, we delineated critical habitat unit
boundaries using the following criteria:
Evaluate habitat suitability of cienegas within the geographic area
occupied at the time of listing, and retain those cienegas that contain
some or all of the physical or biological features that are essential
to support life-history processes of the species.
When determining critical habitat boundaries, we made every effort
to avoid including developed areas such as lands covered by buildings,
pavement, and other structures because such lands lack physical or
biological features necessary for the Arizona eryngo. The scale of the
maps we prepared under the parameters for publication within the Code
of Federal Regulations may not reflect the exclusion of such developed
lands. Any such lands inadvertently left inside critical habitat
boundaries shown on the maps of this rule have been excluded by text in
the rule and are not designated as critical habitat. Therefore, a
Federal action involving these lands will not trigger section 7
consultation with respect to critical habitat and the requirement of no
adverse modification unless the specific action will affect the
physical or biological features in the adjacent critical habitat.
We are designating as critical habitat areas that we have
determined are occupied at the time of listing (i.e., currently
occupied) and that contain one or more of the physical or biological
features that are essential to support life-history processes of the
species.
Units are designated based on one or more of the physical or
biological features being present to support the Arizona eryngo's life-
history processes. Some units contain all of the identified physical or
biological features and support multiple life-history processes. Some
units contain only some of the physical or biological features
necessary to support the Arizona eryngo's particular use of that
habitat.
The critical habitat designation is defined by the map or maps, as
modified by any accompanying regulatory text, presented at the end of
this document under Regulation Promulgation. We include more detailed
information on the boundaries of the critical habitat designation in
the preamble of this document. We will make the coordinates or plot
points or both on which each map is based available to the public on
https://www.regulations.gov at Docket No. FWS-R2-ES-2020-0130, and on
our internet site https://www.fws.gov/southwest/es/arizona/.
Final Critical Habitat Designation
We are designating approximately 12.7 acres (5.1 hectares) in two
units as critical habitat for the Arizona eryngo. The two units we
designate as critical habitat are: (1) Lewis Springs, and (2) La
Cebadilla. The critical habitat areas we list in the table below
constitute our current best assessment of areas that meet the
definition of critical habitat for the Arizona eryngo. Table 1 shows
the land ownership, size, and occupancy of the areas that meet the
definition of critical habitat for the Arizona eryngo.
[[Page 35448]]
Table 1--Areas That Meet the Definition of Critical Habitat for the Arizona Eryngo
[Area estimates reflect all land within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
Size of unit in acres
Critical habitat unit Land ownership by type (hectares) Occupied?
----------------------------------------------------------------------------------------------------------------
1. Lewis Springs..................... Federal (BLM).......... 9.6 (3.9).............. Yes.
2. La Cebadilla...................... Private, Pima County 3.1 (1.3).............. Yes.
Regional Flood Control
District.
Agua Caliente [proposed Unit 3]...... Pima County Natural N/A: Excluded from Yes.
Resources, Parks and designation under
Recreation. section 4(b)(2) of the
Act.
--------------------------------------------------------------------------
Total............................ ....................... 12.7 (5.2)............. .......................
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
We present brief descriptions of the two units we are designating,
and reasons why they meet the definition of critical habitat for
Arizona eryngo, below. For a description of proposed Unit 3 (Agua
Caliente), which we are excluding from this designation, please see
Exclusions Based on Other Relevant Impacts, later in this document.
Unit 1: Lewis Springs
Unit 1 consists of 9.6 acres (3.9 hectares) encompassing the
wetlands at Lewis Springs just to the east of the San Pedro River in
Cochise County, within the San Pedro River Basin. The unit is located
within the SPRNCA, which is owned and managed by the BLM to conserve,
protect, and enhance a rare remnant of desert riparian ecosystem. The
unit is occupied by the species and contains all the physical or
biological features essential to the conservation of the Arizona
eryngo. The Lewis Springs Unit is being affected by drought, nonnative
species invasion, woody vegetation encroachment, and ongoing human
demand for water resulting in declining groundwater levels. Therefore,
special management considerations may be required to reduce invasion of
nonnative species and encroachment of woody vegetation and to improve
groundwater levels to support continued springflow.
Unit 2: La Cebadilla
Unit 2 consists of 3.1 acres (1.3 hectares) of cienega habitat at
La Cebadilla Cienega, adjacent to the Tanque Verde Wash east of Tucson
in Pima County, within the Santa Cruz River Basin. The majority of the
unit is located on lands owned by La Cebadilla Estates, with a smaller
portion of the unit located on lands owned and managed by PCRFCD. The
homeowners' association of La Cebadilla Estates manages their portion
of the cienega as common property for the common use and enjoyment of
its members. PCRFCD manages their portion of the cienega as natural
open space, which has a restrictive covenant that limits development
and protects natural resources on the property. The La Cebadilla Unit
is occupied by the species and contains all the physical or biological
features essential to the conservation of the Arizona eryngo. The unit
is located in a rural neighborhood and is being affected by drought,
woody vegetation encroachment, and ongoing human demand for water
resulting in declining groundwater levels. Therefore, special
management may be required to reduce encroachment of woody vegetation
and to improve groundwater levels to support continued springflow.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species.
We published a final rule revising the definition of destruction or
adverse modification on August 27, 2019 (84 FR 44976). Destruction or
adverse modification means a direct or indirect alteration that
appreciably diminishes the value of critical habitat as a whole for the
conservation of a listed species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, Tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat--and actions
on State, Tribal, local, or private lands that are not federally
funded, authorized, or carried out by a Federal agency--do not require
section 7 consultation.
Compliance with the requirements of section 7(a)(2) is documented
through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood
of jeopardizing the continued existence of the listed species and/or
avoid the likelihood of destroying or adversely modifying critical
habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
[[Page 35449]]
Regulations at 50 CFR 402.16 set forth requirements for Federal
agencies to reinitiate formal consultation on previously reviewed
actions. These requirements apply when the Federal agency has retained
discretionary involvement or control over the action (or the agency's
discretionary involvement or control is authorized by law) and, if
subsequent to the previous consultation: (1) If the amount or extent of
taking specified in the incidental take statement is exceeded; (2) if
new information reveals effects of the action that may affect listed
species or critical habitat in a manner or to an extent not previously
considered; (3) if the identified action is subsequently modified in a
manner that causes an effect to the listed species or critical habitat
that was not considered in the biological opinion; or (4) if a new
species is listed or critical habitat designated that may be affected
by the identified action.
In such situations, Federal agencies sometimes may need to request
reinitiation of consultation with us, but the regulations also specify
some exceptions to the requirement to reinitiate consultation on
specific land management plans after subsequently listing a new species
or designating new critical habitat. See the regulations for a
description of those exceptions.
Application of the ``Adverse Modification'' Standard
The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat as a
whole for the conservation of the listed species. As discussed above,
the role of critical habitat is to support physical or biological
features essential to the conservation of a listed species and provide
for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate section
7(a)(2) of the Act by destroying or adversely modifying such habitat,
or that may be affected by such designation.
Activities that the Services may, during a consultation under
section 7(a)(2) of the Act, consider likely to destroy or adversely
modify critical habitat include, but are not limited to:
(1) Actions that would alter the hydrology of the cienega. Such
activities could include, but are not limited to, springflow diversion,
springhead modification, groundwater withdrawal, and physical
alteration of the cienega. These activities could change the
hydrological processes of the cienega, reducing or eliminating habitat
for the Arizona eryngo.
(2) Actions that promote the growth of nonnative plant species and
canopy cover. Such actions include, but are not limited to, planting of
nonnative plant species and woody vegetation, and seed spread through
livestock and tire treads. These activities could reduce or eliminate
habitat for the Arizona eryngo.
(3) Actions that result in further fragmentation of Arizona eryngo
habitat. Such actions include, but are not limited to, development of
fuel breaks, roads, and trails. These activities could reduce or
eliminate habitat for the Arizona eryngo.
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that the Secretary shall not designate as critical habitat any
lands or other geographical areas owned or controlled by the Department
of Defense (DOD), or designated for its use, that are subject to an
integrated natural resources management plan (INRMP) prepared under
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary
determines in writing that such plan provides a benefit to the species
for which critical habitat is proposed for designation. There are no
Department of Defense (DoD) lands with a completed INRMP within the
final critical habitat designation.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if she determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless she determines, based
on the best scientific data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. In making the determination to exclude a particular area, the
statute on its face, as well as the legislative history, are clear that
the Secretary has broad discretion regarding which factor(s) to use and
how much weight to give to any factor.
Under section 4(b)(2) of the Act, we may exclude an area from
designated critical habitat based on economic impacts, impacts on
national security, or any other relevant impacts. In considering
whether to exclude a particular area from the designation, we identify
the benefits of including the area in the designation, identify the
benefits of excluding the area from the designation, and evaluate
whether the benefits of exclusion outweigh the benefits of inclusion.
If the analysis indicates that the benefits of exclusion outweigh the
benefits of inclusion, the Secretary may exercise discretion to exclude
the area only if such exclusion would not result in the extinction of
the species. We describe below the process that we undertook for taking
into consideration each category of impacts and our analyses of the
relevant impacts.
Exclusions Based on Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. In order to consider economic impacts, we prepared
an incremental effects memorandum (IEM) and screening analysis which,
together with our narrative and interpretation of effects, we consider
our draft economic analysis (DEA) of the critical habitat designation
and related factors (IEc 2020, entire). The analysis, dated November
16, 2020 (IEc 2020, entire), was made available for public review from
March 4, 2021, through May 3, 2021 (see 86 FR 12563; March 4, 2021).
The DEA addressed probable economic impacts of critical habitat
designation for Arizona eryngo. Following the close of the March 4,
2021, proposed rule's comment period, we reviewed and evaluated all
information submitted during the comment period that may pertain to our
consideration of the probable incremental economic impacts of this
critical habitat designation. During the public comment period on the
proposed rule, we received a comment on our economic analysis, which we
address in our response to (6) Comment under Summary of Comments and
Recommendations, above. Additional information relevant to the probable
incremental economic impacts of critical habitat designation for the
Arizona eryngo is summarized below and available in the screening
analysis for the Arizona eryngo (IEc 2020, entire), available at
https://
[[Page 35450]]
www.regulations.gov. We are adopting the DEA as the final economic
analysis.
In occupied areas, any actions that may affect the species or its
habitat will also likely affect critical habitat, and it is unlikely
that any additional conservation efforts will be recommended to address
the adverse modification standard over and above those recommended as
necessary to avoid jeopardizing the continued existence of the Arizona
eryngo. Therefore, only administrative costs are expected as a result
of the critical habitat designation. While this additional analysis
will require time and resources by both the Federal action agency and
the Service, it is believed that, in most circumstances, these costs
will predominantly be administrative in nature and will not be
significant.
The probable incremental economic impacts of this critical habitat
designation for the Arizona eryngo are expected to be limited to
additional administrative effort as well as minor costs of conservation
efforts resulting from a small number of future section 7
consultations. Because both of the critical habitat units are occupied
by the species, incremental economic impacts of critical habitat
designation, other than administrative costs, are unlikely. At
approximately $5,300 or less per consultation, this designation is
expected to result in 12 to 17 consultations in 10 years for a maximum
total estimated cost of $36,000 over this time period (IEc 2020, p.
12). Thus, the annual administrative burden is unlikely to reach or
exceed $100 million in any single year; therefore, the economic impacts
are not significant. The Service considered the economic impacts of the
critical habitat designation. The Secretary is not exercising her
discretion to exclude any areas from this designation of critical
habitat for the Arizona eryngo based on economic impacts.
Exclusions Based on Impacts on National Security and Homeland Security
In preparing this rule, we determined that none of the lands within
the designated critical habitat for the Arizona eryngo are owned or
managed by the Department of Defense or Department of Homeland
Security, and, therefore, we anticipate no impact on national security
or homeland security. We did not receive any additional information
during the public comment period for the proposed critical habitat
designation regarding impacts of the designation on national security
or homeland security that would support excluding any specific areas
from the final critical habitat designation under authority of section
4(b)(2) and our implementing regulations at 50 CFR 424.19.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors, including whether there are
permitted conservation plans covering the species in the area such as
HCPs, safe harbor agreements, or candidate conservation agreements with
assurances (CCAAs), or whether there are non-permitted conservation
agreements and partnerships that would be encouraged by designation of,
or exclusion from, critical habitat. In addition, we look at the
existence of Tribal conservation plans and partnerships and consider
the government-to-government relationship of the United States with
Tribal entities. We also consider any social impacts that might occur
because of the designation.
When identifying the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive due to the
protection from destruction or adverse modification as a result of
actions with a Federal nexus, the educational benefits of mapping
essential habitat for recovery of the listed species, and any benefits
that may result from a designation due to State or Federal laws that
may apply to critical habitat.
When considering the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation, or in the continuation, strengthening, or
encouragement of partnerships. Additionally, continued implementation
of an ongoing management plan that provides equal to or more
conservation than a critical habitat designation would reduce the
benefits of including that specific area in the critical habitat
designation.
After identifying the benefits of inclusion and the benefits of
exclusion, we carefully weigh the two sides to evaluate whether the
benefits of exclusion outweigh those of inclusion. If our analysis
indicates that the benefits of exclusion outweigh the benefits of
inclusion, we then determine whether exclusion would result in
extinction of the species. If exclusion of an area from critical
habitat will result in extinction, we will not exclude it from the
designation.
Based on the information provided in the public comments, including
those from the landowner (Pima County) and the best scientific data
available, we evaluated whether lands in the proposed critical habitat
Unit 3 (Agua Caliente) are appropriate for exclusion from the final
designation under section 4(b)(2) of the Act. If the analysis indicates
that the benefits of excluding lands from the final designation
outweigh the benefits of designating those lands as critical habitat,
then the Secretary may exercise her discretion to exclude the lands
from the final designation. In the paragraphs below, we provide a
detailed balancing analysis of the areas being excluded under section
4(b)(2) of the Act.
Description of Proposed Unit 3: Agua Caliente
Proposed Unit 3 consists of three subunits totaling 0.3 acres (0.1
hectares), all within the Agua Caliente Regional Park. The park is
located east of Tucson in Pima County within the Santa Cruz River Basin
(Stromberg et al. 2020, p. 177) and is owned and managed by Pima County
Natural Resources, Parks and Recreation. The Arizona eryngo
historically occurred at this site, but the population was extirpated,
likely due to multiple manipulations of the site that eliminated
cienega habitat, including, but not limited to, water diversion and
vegetation clearing for agricultural activities, pond impoundment,
groundwater pumping, and spring modification (Stromberg et al. 2020, p.
177; SWCA 2002, p. 11). Reintroduction efforts for the species began in
2017, with 20 individuals planted that year and another 15 in 2018.
Most of these plants have died, with at most 1 to 3 individuals
maturing into adult plants. Seedling production has been observed on
occasions, but none have survived to reach reproductive maturity. The
limited success of this reintroduction and the comments provided by
Pima County raise uncertainty as to whether this site could be restored
to contain sufficient physical or biological features essential to the
conservation of the species. Soils at this site are saturated, and
there are areas of open canopy (two of three physical or biological
features we identified as essential to Arizona eryngo), but this is a
heavily manipulated waterway that does not function like an unaltered
cienega. It lacks functional hydrological processes, which ultimately
may limit the ability of the soils to maintain appropriate moisture
levels for the species. Even though this unit is currently occupied,
the limited recruitment and extensive die-off of reintroduced
individuals is evidence that the habitat may not be fully restorable at
this site.
[[Page 35451]]
Private or Other Non-Federal Conservation Plans or Agreements and
Partnerships, in General
We sometimes exclude specific areas from critical habitat
designations based in part on the existence of private or other non-
Federal conservation plans or agreements and their attendant
partnerships. A conservation plan or agreement describes actions that
are designed to provide for the conservation needs of a species and its
habitat, and may include actions to reduce or mitigate negative effects
on the species caused by activities on or adjacent to the area covered
by the plan. Conservation plans or agreements can be developed by
private entities with no Service involvement, or in partnership with
the Service.
We evaluate a variety of factors to determine how the benefits of
any exclusion and the benefits of inclusion are affected by the
existence of private or other non-Federal conservation plans or
agreements and their attendant partnerships when we undertake a
discretionary section 4(b)(2) exclusion analysis. A non-exhaustive list
of factors that we will consider for non-permitted plans or agreements
is shown below. These factors are not required elements of plans or
agreements, and all items may not apply to every plan or agreement.
(i) The degree to which the plan or agreement provides for the
conservation of the species or the essential physical or biological
features (if present) for the species.
(ii) Whether there is a reasonable expectation that the
conservation management strategies and actions contained in a
management plan or agreement will be implemented.
(iii) The demonstrated implementation and success of the chosen
conservation measures.
(iv) The degree to which the record of the plan supports a
conclusion that a critical habitat designation would impair the
realization of benefits expected from the plan, agreement, or
partnership.
(v) The extent of public participation in the development of the
conservation plan.
(vi) The degree to which there has been agency review and required
determinations (e.g., State regulatory requirements), as necessary and
appropriate.
(vii) Whether National Environmental Policy Act (NEPA; 42 U.S.C.
4321 et seq.) compliance was required.
(viii) Whether the plan or agreement contains a monitoring program
and adaptive management to ensure that the conservation measures are
effective and can be modified in the future in response to new
information.
Agua Caliente Protections, Including the Sonoran Desert Conservation
Plan
Pima County is a long-term conservation partner and leader, and
Pima County and the Service have a memorandum of understanding (MOU) to
work collaboratively and cooperatively to implement meaningful
conservation and mitigation as part of the Sonoran Desert Conservation
Plan (Pima County 2020b). A portion of Agua Caliente Regional Park is
identified in the Sonoran Desert Conservation Plan as an Important
Riparian Area and as a Biological Core Management Area. The western-
most parcel that includes Agua Caliente Wash is encumbered with a
restrictive covenant as mitigation land for the County's and Flood
Control District's Multi-Species Conservation Plan (MSCP) section 10
permit. The MSCP is the part of the Sonoran Desert Conservation Plan
that addresses endangered species compliance. Because the Arizona
eryngo was not listed when the MSCP was developed, it was not
explicitly included as part of the MSCP and so is not covered by the
section 10 permit. Therefore, we considered the conservation activities
Pima County has identified in the Sonoran Desert Conservation Plan in
assessing critical habitat designation for Agua Caliente.
The conservation goals of the MOU include ensuring the long-term
survival of the full spectrum of plants and animals that are indigenous
to Pima County through maintaining or improving the habitat conditions
and ecosystem functions necessary for their survival. Objectives under
this goal include:
(1) Promote recovery of federally listed and candidate species;
(2) Where feasible and appropriate, reintroduce and recover species
that have been extirpated from this region;
(3) Maintain or improve the status of unlisted species whose
existence in Pima County is vulnerable;
(4) Identify biological threats to the region's biodiversity posed
by introduced and nonnative species of plants and animals, and develop
strategies to reduce these threats and avoid additional invasive
species in the future;
(5) Identify causes that disrupt ecosystem functions within target
plant communities selected for their biological significance, and
develop strategies to reverse or mitigate them; and
(6) Promote long-term viability and mitigate for impacts to
species, environments, and biotic communities that have special
significance to people in this region because of their aesthetic or
cultural values, regional uniqueness, or economic significance.
These goals align with several of the factors we may consider for
basing an exclusion on a conservation plan.
As a designated County park, Agua Caliente is owned and managed by
Pima County for recreational opportunities, habitat, scenery, and
resource protection. Additionally, Agua Caliente Ranch Historic
Landscape is listed in the National Register of Historic Places, the
Arizona Register of Historic Places, and Pima County's Register of
Historic Places, which affords both recognition and certain
protections. The landscape of the County park includes certain trees,
buildings, and ponds that are contributing elements as a National
Register District, and Pima County designated the entire historic park
as a Sonoran Desert Conservation Plan ``Priority Cultural Resource'' to
be managed for preservation and conservation. Consequently, the County
has invested grant funds and bond funds in ensuring these resources are
protected and appropriately rehabilitated.
Benefits of Inclusion--Agua Caliente (Proposed Unit 3)
The principal benefit of including an area in critical habitat
designation is the requirement of Federal agencies to ensure that
actions that they fund, authorize, or carry out are not likely to
result in the destruction or adverse modification of any designated
critical habitat, which is the regulatory standard of section 7(a)(2)
of the Act under which consultation is completed. Federal agencies must
consult with the Service on actions that may affect a listed species,
and refrain from actions that are likely to jeopardize the continued
existence of such species. The analysis of effects to critical habitat
is a separate and different analysis from that of the effects to the
species. Therefore, the difference in outcomes of these two analyses
represents the regulatory benefit of critical habitat. For some cases,
the outcome of these analyses will be similar, because effects to
habitat will often result in effects to the species. However, the
regulatory standard is different, as the jeopardy analysis investigates
the action's impact to survival and recovery of the species, while the
adverse modification analysis investigates the action's effects to the
designated critical habitat's contribution to conservation. Thus,
critical habitat
[[Page 35452]]
designation may provide greater benefits to the recovery of a species
than listing would alone. Therefore, critical habitat designation may
provide a regulatory benefit for the Arizona eryngo on lands within the
Agua Caliente Regional Park.
Another possible benefit of including lands in critical habitat is
public education regarding the potential conservation value of an area
that may help focus conservation efforts on areas of high conservation
value for certain species. We consider any information about the
Arizona eryngo and its habitat that reaches a wide audience, including
parties engaged in conservation activities, to be valuable. Designation
of critical habitat would provide educational benefits by informing
Federal agencies and the public about the presence of the species in
this unit.
However, we also acknowledge the limited benefit of including this
unit to the conservation of the species. The limited success of the
reintroduction of Agua Caliente indicates that the conservation
benefits of including this site as critical habitat are not high. The
current condition of the population indicates the habitat is not
sufficient to contribute to the long-term conservation of the species.
Benefits of Exclusion--Agua Caliente (Proposed Unit 3)
The benefits of excluding 0.3 acre (0.1 hectare) of land within the
Agua Caliente Regional Park, owned and managed by Pima County Natural
Resources, Parks and Recreation, from the designation of critical
habitat for the Arizona eryngo are substantial and include: (1)
Continuance and strengthening of our effective partnership with Pima
County to promote voluntary, proactive conservation of the Arizona
eryngo and its habitat; (2) allowance for continued meaningful
collaboration and cooperation in working toward species recovery,
including conservation benefits that might not otherwise occur, such as
reintroducing the species at Agua Caliente or other sites; and (3)
encouragement of developing and implementing conservation and
management plans in the future for the Arizona eryngo or other
federally listed and sensitive species.
Pima County has been a long-term conservation partner and has led
multiple efforts to conserve the Arizona eryngo, including working to
reestablish the species at Agua Caliente and two other sites. The
Arizona eryngo reintroduction effort at Agua Caliente is still in an
experimental phase, and a viable population has not yet been
established. Supporting Pima County to continue leading conservation
efforts for the species without the regulatory burdens of critical
habitat is important. Excluding Agua Caliente from the critical habitat
designation will allow the County the ability to focus on their
ongoing, voluntary conservation efforts.
Also, Agua Caliente Regional Park is a highly manipulated system
that is subjected to substantial management from Pima County. Due to
alterations of the habitat and hydrology, Agua Caliente no longer
functions like a natural, unaltered cienega. Managers continue to
experiment with the system to provide conditions appropriate for
species such as the Arizona eryngo. Establishing critical habitat on a
specific area of the park may limit Pima County's ability to adjust
their management in a manner that may ultimately benefit the species in
the long term, allowing them to determine through trial and error which
locations in the park are able to be managed for the species, providing
the necessary features and establishing a new population. To date,
introduction of the Arizona eryngo to the park has not been successful
in establishing a population, and most individuals have experienced
mortality due to inadequate conditions. Excluding this park from
critical habitat provides Pima County the flexibility to conduct
management that will promote recovery on their lands for the long-term
benefit of the species.
Additionally, many landowners perceive critical habitat as an
unfair and unnecessary regulatory burden. According to some
researchers, the designation of critical habitat on private lands
significantly reduces the likelihood that landowners will support and
carry out conservation actions (Main et al. 1999, p. 1,263; Bean 2002,
p. 2). The magnitude of this negative outcome is greatly amplified in
situations where active management measures (such as reintroduction,
fire management, and control of invasive species) are necessary for
species conservation (Bean 2002, pp. 3-4). We believe the exclusion of
this specific area of non-federally owned lands from the critical
habitat designation for Arizona eryngo can contribute to the species'
recovery and provide a superior level of conservation than critical
habitat can provide. The Service believes that, where consistent with
the discretion provided by the Act, it is necessary to implement
policies that provide positive incentives to non-Federal landowners to
voluntarily conserve natural resources and that remove or reduce
disincentives to conservation (Wilcove et al. 1996, pp. 1-15; Bean
2002, pp. 1-7). Partnerships with non-Federal landowners are vital to
the conservation of listed species, especially on non-Federal lands;
therefore, the Service is committed to supporting and encouraging such
partnerships through the recognition of positive conservation
contributions. In the case considered here, excluding this area from
critical habitat designation will help foster the partnership that Pima
County has developed with the Service; will encourage the continued
implementation of voluntary conservation actions for the benefit ofthe
Arizona eryngo and its habitat on these lands; and may also serve as a
model and aid in fostering future cooperative relationships with other
parties here, and in other locations, for the benefit of other
endangered or threatened species.
Benefits of Exclusion Outweigh the Benefits of Inclusion--Agua Caliente
(Proposed Unit 3)
We evaluated the exclusion of 0.3 acre (0.1 hectare) of County land
within the boundaries of the Agua Caliente Regional Park, under a long-
term conservation partnership and MOU, from our designation of critical
habitat, and we determined the benefits of excluding these lands
outweigh the benefits of including them as critical habitat for the
Arizona eryngo.
The Service concludes the additional regulatory and educational
benefits of including these lands as critical habitat are relatively
small, because of the unlikelihood of a Federal nexus on these County
lands. Examining the eight factors that may be considered under a
discretionary section 4(b)(2) exclusion analysis for a non-permitted
conservation plan (see Private or Other Non-Federal Conservation Plans
or Agreements and Partnerships, in General), we found the conservation
plan developed by Pima County satisfies several that would promote the
conservation of the species. Specifically, the plan has objectives to
promote recovery of federally listed species and promote long-term
viability of native species, which would satisfy factor (i). The
benefits of critical habitat designation are further reduced because
the existence of a long-term conservation partnership and MOU between
Pima County and the Service, as well as numerous land protections,
discussed above, at Agua Caliente Regional Park. Given Pima County's
history of conservation, this satisfies factor (iii) of the section
4(b)(2) exclusion analysis. In addition, the plan includes multiple
objectives that would satisfy factor (viii) by promoting monitoring and
adaptive management to
[[Page 35453]]
ensure conservation measures are effective. We anticipate that there
will be little additional Federal regulatory benefit to the taxon on
County land because there is a low likelihood that those areas will be
negatively affected to any significant degree by Federal activities
requiring section 7 consultation, and ongoing management activities
indicate there would be no additional requirements pursuant to a
consultation that addresses critical habitat.
Furthermore, the potential educational and informational benefits
of critical habitat designation on lands containing the physical or
biological features essential to the conservation of the Arizona eryngo
would be minimal, because Pima County has been a leader in conservation
of the Arizona eryngo and demonstrated their knowledge of the species
and its habitat needs throughout their partnership with the Service.
Additionally, the current active conservation efforts on County lands
contribute to our knowledge of the species through reintroduction
efforts, monitoring, and scientific research.
In contrast, the benefits derived from excluding Agua Caliente and
enhancing our partnership with Pima County are significant. Because
voluntary conservation efforts for the benefit of listed species on
non-Federal lands are so valuable, the Service considers the
maintenance and encouragement of conservation partnerships to be a
significant benefit of exclusion. Excluding these areas from critical
habitat will help foster the partnership Pima County has developed with
the Service and will encourage the continued implementation of
voluntary conservation actions for the benefit of the Arizona eryngo
and its habitat on these lands.
We find that excluding areas from critical habitat that are
receiving both long-term conservation and management for the purpose of
protecting the habitat that supports the Arizona eryngo will preserve
our partnership with Pima County and encourage future collaboration
towards conservation and recovery of listed species. The partnership
benefits are significant and outweigh the small potential regulatory,
educational, and ancillary benefits of including the land in the
critical habitat designation for the Arizona eryngo. Therefore, the
conservation partnership between Pima County and the Service provides
greater protection of habitat for the Arizona eryngo than could be
gained through the project-by-project analysis of a critical habitat
designation.
Exclusion Will Not Result in Extinction of the Species--Agua Caliente
(Proposed Unit 3)
We determined that the exclusion of 0.3 acre (0.1 hectare) of land
within the boundaries of the Agua Caliente Regional Park owned and
managed by Pima County Natural Resources, Parks and Recreation will not
result in extinction of the taxon. Protections afforded the taxon and
its habitat by the long-term Pima County and Service conservation
partnership, MOU, and various land protections provide assurances that
the taxon will not go extinct as a result of excluding these lands from
the critical habitat designation.
An important consideration as we evaluate these exclusions and
their potential effect on the species in question is that critical
habitat does not carry with it a regulatory requirement to restore or
actively manage habitat for the benefit of listed species; the
regulatory effect of critical habitat is only the avoidance of
destruction or adverse modification of critical habitat should an
action with a Federal nexus occur. It is, therefore, advantageous for
the conservation of the species to support the proactive efforts of
non-Federal landowners who are contributing to the enhancement of
essential habitat features for listed species through exclusion. The
jeopardy standard of section 7 of the Act will also provide protection
in these occupied areas when there is a Federal nexus. Therefore, based
on the above discussion, the Secretary is exercising her discretion to
exclude 0.3 acre (0.1 hectare) of land from the designation of critical
habitat for the Arizona eryngo.
Summary of Exclusions
As discussed above, based on the information provided by entities
seeking exclusion, as well as any additional public comments we
received, we evaluated whether certain lands in our proposed critical
habitat designation were appropriate for exclusion from this final
designation pursuant to section 4(b)(2) of the Act. We are excluding
the following areas from critical habitat designation for the Arizona
eryngo:
Table 2--Areas Excluded From Critical Habitat Designation by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
Areas meeting
the definition Areas excluded
of critical from critical
Proposed unit Specific area habitat, in habitat, in
acres acres
(hectares) (hectares)
----------------------------------------------------------------------------------------------------------------
3. Agua Caliente.............................. 3a. Pond 1 Wetland.............. 0.04 (0.02) 0.04 (0.02)
3b. Pond 1 Wildlife Island...... 0.2 (0.07) 0.2 (0.07)
3c. Pond 2...................... 0.09 (0.04) 0.09 (0.04)
----------------------------------------------------------------------------------------------------------------
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this rule is not
significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996
[[Page 35454]]
(SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
Under the RFA, as amended, and as understood in light of recent
court decisions, Federal agencies are required to evaluate the
potential incremental impacts of rulemaking on those entities directly
regulated by the rulemaking itself; in other words, the RFA does not
require agencies to evaluate the potential impacts to indirectly
regulated entities. The regulatory mechanism through which critical
habitat protections are realized is section 7 of the Act, which
requires Federal agencies, in consultation with the Service, to ensure
that any action authorized, funded, or carried out by the agency is not
likely to destroy or adversely modify critical habitat. Therefore,
under section 7, only Federal action agencies are directly subject to
the specific regulatory requirement (avoiding destruction and adverse
modification) imposed by critical habitat designation. Consequently, it
is our position that only Federal action agencies will be directly
regulated by this critical habitat designation. There is no requirement
under the RFA to evaluate the potential impacts to entities not
directly regulated. Moreover, Federal agencies are not small entities.
Therefore, because no small entities will be directly regulated by this
rulemaking, the Service certifies that this critical habitat
designation will not have a significant economic impact on a
substantial number of small entities.
In summary, we have considered whether the designation will result
in a significant economic impact on a substantial number of small
entities. For the above reasons and based on currently available
information, we certify that this critical habitat designation will not
have a significant economic impact on a substantial number of small
business entities. Therefore, a regulatory flexibility analysis is not
required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. In our economic analysis, we did not find that this
critical habitat designation will significantly affect energy supplies,
distribution, or use, as the areas identified as critical habitat are
in cienegas in mostly remote areas with little energy supplies,
distribution, or infrastructure in place. Therefore, this action is not
a significant energy action, and no Statement of Energy Effects is
required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following finding:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and Tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or Tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments because the lands within the critical habitat
designation that are owned by Pima County are already subject to a
restrictive covenant that limits development and protects
[[Page 35455]]
natural resources on the property, and small governments will be
affected only to the extent that any programs having Federal funds,
permits, or other authorized activities must ensure that their actions
will not adversely affect the critical habitat. Therefore, a Small
Government Agency Plan is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for the Arizona eryngo in a takings implications assessment.
The Act does not authorize the Service to regulate private actions on
private lands or confiscate private property as a result of critical
habitat designation. Designation of critical habitat does not affect
land ownership, or establish any closures, or restrictions on use of or
access to the designated areas. Furthermore, the designation of
critical habitat does not affect landowner actions that do not require
Federal funding or permits, nor does it preclude development of habitat
conservation programs or issuance of incidental take permits to permit
actions that do require Federal funding or permits to go forward.
However, Federal agencies are prohibited from carrying out, funding, or
authorizing actions that would destroy or adversely modify critical
habitat. A takings implications assessment has been completed for this
designation of critical habitat for the Arizona eryngo, and it
concludes that this designation of critical habitat does not pose
significant takings implications for lands within or affected by the
designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this rule does not have
significant federalism effects. A federalism summary impact statement
is not required. In keeping with Department of the Interior and
Department of Commerce policy, we requested information from, and
coordinated development of this critical habitat designation with,
appropriate State resource agencies. From a federalism perspective, the
designation of critical habitat directly affects only the
responsibilities of Federal agencies. The Act imposes no other duties
with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, this final rule does not
have substantial direct effects either on the States, or on the
relationship between the national government and the States, or on the
distribution of powers and responsibilities among the various levels of
government. The designation may have some benefit to these governments
because the areas that contain the features essential to the
conservation of the species are more clearly defined, and the physical
or biological features of the habitat necessary for the conservation of
the species are specifically identified. This information does not
alter where and what federally sponsored activities may occur. However,
it may assist State and local governments in long-range planning
because they no longer have to wait for case-by-case section 7
consultations to occur.
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) of the Act will be required. While
non-Federal entities that receive Federal funding, assistance, or
permits, or that otherwise require approval or authorization from a
Federal agency for an action, may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule will not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We are designating critical
habitat in accordance with the provisions of the Act. To assist the
public in understanding the habitat needs of the species, this final
rule identifies the physical or biological features essential to the
conservation of the species. The designated areas of critical habitat
are presented on maps, and the rule provides several options for the
interested public to obtain more detailed location information, if
desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not
required. We may not conduct or sponsor and you are not required to
respond to a collection of information unless it displays a currently
valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with regulations
adopted pursuant to section 4(a) of the Act. We published a notice
outlining our reasons for this determination in the Federal Register on
October 25, 1983 (48 FR 49244). This position was upheld by the U.S.
Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48
F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes. We have determined that no Tribal
lands fall within the boundaries of the critical habitat designation
for the Arizona eryngo, so no Tribal lands will be affected by this
designation.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at https://www.regulations.gov and upon request from
the Arizona Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this final rule are the staff members of the
Fish and Wildlife Service's Species Assessment Team and the Arizona
Ecological Services Field Office.
[[Page 35456]]
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
unless otherwise noted.
0
2. Amend Sec. 17.12, in paragraph (h), by adding an entry for
``Eryngium sparganophyllum'' to the List of Endangered and Threatened
Plants in alphabetical order under FLOWERING PLANTS to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Scientific name Common name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
Flowering Plants
* * * * * * *
Eryngium sparganophyllum........ Arizona eryngo.... Wherever found.... E 87 FR [INSERT Federal
Register PAGE WHERE
THE DOCUMENT BEGINS],
June 10, 2022; 50 CFR
17.96(a).CH
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.96, in paragraph (a), by adding an entry for ``Family
Apiaceae: Eryngium sparganophyllum (Arizona eryngo)'' in alphabetical
order to read as follows:
Sec. 17.96 Critical habitat--plants.
(a) Flowering plants.
* * * * *
Family Apiaceae: Eryngium sparganophyllum (Arizona eryngo)
(1) Critical habitat units are depicted for Pima and Cochise
Counties, Arizona, on the maps in this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of Arizona eryngo consist of the
following components:
(i) Cienegas within the Chihuahuan and Sonoran Deserts:
(A) That contain permanently moist to saturated, organic, alkaline
soils with some standing water in winter and that are moist at or just
below the surface in summer; and
(B) That have functional hydrological processes and are sustained
by springflow via discharge of groundwater.
(ii) Areas of open canopy throughout the cienega.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
July 11, 2022.
(4) Data layers defining map units were created on a base of U.S.
Geological Survey digital ortho-photo quarter-quadrangles, and critical
habitat units were then mapped using Universal Transverse Mercator
(UTM) Zone 15N coordinates. The maps in this entry, as modified by any
accompanying regulatory text, establish the boundaries of the critical
habitat designation. The coordinates or plot points or both on which
each map is based are available to the public at the Service's internet
site at https://www.fws.gov/southwest/es/arizona/, at https://www.regulations.gov at Docket No. FWS-R2-ES-2020-0130, and at the field
office responsible for this designation. You may obtain field office
location information by contacting one of the Service regional offices,
the addresses of which are listed at 50 CFR 2.2.
(5) Note: Index map follows:
BILLING CODE 4333-15-P
[[Page 35457]]
[GRAPHIC] [TIFF OMITTED] TR10JN22.009
(6) Unit 1: Lewis Springs, Cochise County, Arizona.
(i) Unit 1 consists of 9.6 acres (3.9 hectares) encompassing the
wetlands at Lewis Springs just to the east of the San Pedro River in
Cochise County, within the San Pedro River Basin. The unit is located
within the San Pedro Riparian National Conservation Area, which is
owned and managed by the Bureau of Land Management.
(ii) Map of Unit 1 follows:
[[Page 35458]]
[GRAPHIC] [TIFF OMITTED] TR10JN22.010
(7) Unit 2: La Cebadilla, Pima County, Arizona.
(i) Unit 2 consists of 3.1 acres (1.3 hectares) of cienega habitat
at La Cebadilla Cienega, adjacent to the Tanque Verde Wash east of
Tucson within the Santa Cruz River Basin. The majority of the unit is
located on lands owned by La Cebadilla Estates, with a smaller portion
of the unit located on lands owned and managed by the Pima County
Regional Flood Control District.
(ii) Map of Unit 2 follows:
[[Page 35459]]
[GRAPHIC] [TIFF OMITTED] TR10JN22.011
* * * * *
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-12521 Filed 6-9-22; 8:45 am]
BILLING CODE 4333-15-C