[Federal Register Volume 87, Number 241 (Friday, December 16, 2022)]
[Rules and Regulations]
[Pages 77368-77401]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-27225]
[[Page 77367]]
Vol. 87
Friday,
No. 241
December 16, 2022
Part V
Department of the Interior
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Fish and Wildlife Service
50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Endangered Species
Status and Designation of Critical Habitat for Tiehm's Buckwheat; Final
Rule
Federal Register / Vol. 87, No. 241 / Friday, December 16, 2022 /
Rules and Regulations
[[Page 77368]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2020-0017; FF09E21000 FXES11110900000 234]
RIN 1018-BF94
Endangered and Threatened Wildlife and Plants; Endangered Species
Status and Designation of Critical Habitat for Tiehm's Buckwheat
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 Tiehm's buckwheat (Eriogonum tiehmii), a plant
species native to Nevada in the United States. We also designate
critical habitat. In total, we designate approximately 910 acres (368
hectares) in one unit in Nevada as critical habitat for Tiehm's
buckwheat. This rule adds the species to the List of Endangered and
Threatened Plants and extends the Act's protections to the species.
DATES: This rule is effective January 17, 2023.
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-
R8-ES-2020-0017.
Availability of supporting materials: For the critical habitat
designation, the coordinates or plot points or both from which the
critical habitat maps are generated are available at https://www.regulations.gov under Docket No. FWS-R8-ES-2020-0017. Any
additional supporting information that we developed for this critical
habitat designation will be available at https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Justin Barrett, Deputy Field
Supervisor, U.S. Fish and Wildlife Service, Reno Ecological Services
Field Office, 1340 Financial Boulevard, Suite 234, Reno, NV 89502;
telephone 775-861-6300. 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). If we
determine that a species warrants listing, we must list the species
promptly and designate the species' critical habitat to the maximum
extent prudent and determinable. We have determined that Tiehm's
buckwheat meets the definition of an endangered species; therefore, we
are listing it as such and designating critical habitat. Both listing a
species as an endangered or threatened species and designating critical
habitat can be completed only by issuing a rule through the
Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq.).
What this document does. This document lists Tiehm's buckwheat as
an endangered species and designates critical habitat for this species
under the Act, in a portion of Esmeralda County, Nevada. In total, we
designate approximately 910 acres (ac; 368 hectares (ha)) in one unit
in Nevada as critical habitat for Tiehm's buckwheat.
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 Tiehm's buckwheat is
primarily at risk of extinction due to the destruction, modification,
or curtailment of its habitat and range from mineral exploration and
development; road development and off-highway vehicle (OHV) use;
livestock grazing; nonnative, invasive plant species; and herbivory.
Climate change may further influence the degree to which some of these
threats (herbivory and nonnative invasive plant species), individually
or collectively, may affect Tiehm's buckwheat. In addition, existing
regulatory mechanisms may be inadequate to protect the species.
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.
Abbreviations and Acronyms Used in This Final Rule
For the convenience of the reader, a list of the abbreviations and
acronyms used in this final rule follows:
Act = Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), as
amended
AUM = animal unit month
BLM = Bureau of Land Management
CBD = Center for Biological Diversity
CFR = Code of Federal Regulations
DoD = Department of Defense
FLPMA = Federal Land Policy and Management Act (43 U.S.C. 1701 et
seq.)
FR = Federal Register
GLM = general linear model
HCP = habitat conservation plan
IEc = Industrial Economics, Incorporated
IEM = incremental effects memorandum
INRMP = integrated natural resources management plan
Ioneer = Ioneer USA Corporation
NDF = Nevada Division of Forestry
NDNH = Nevada Division of Natural Heritage
NEPA = National Environmental Policy Act (42 U.S.C. 4321 et seq.)
PBFs = physical and biological features
PECE = Policy for Evaluation of Conservation Efforts
PoO = Plan of Operations
RCP = representative concentration pathway
Service = U.S. Fish and Wildlife Service
SSA = species status assessment
Previous Federal Actions
For more information on the species, general information about
Tiehm's buckwheat habitat, and previous Federal actions associated with
final listing and final critical habitat for Tiehm's buckwheat, refer
to the 12-
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month finding published in the Federal Register on June 4, 2021 (86 FR
29975), the proposed listing rule published in the Federal Register on
October 7, 2021 (86 FR 55775), and the proposed critical habitat rule
published in the Federal Register on February 3, 2022 (87 FR 6101). The
species status assessment (SSA) and associated supporting documents
available online at https://www.regulations.gov under Docket No. FWS-
R8-ES-2020-0017.
Summary of Changes From the Proposed Rule
Based on review of the public comments, State agency comments, peer
review comments, and new scientific information that became available
since the proposed rules published, we updated information in our SSA
(Service 2022, entire), including:
1. Updating the petition history;
2. Adding a discussion of the Bureau of Land Management's (BLM)
Mitigation Manual MS-1794 and Handbook H-1794;
3. Updating genetics information;
4. Updating vegetation community and soil requirements of Tiehm's
buckwheat;
5. Adding a discussion on pollinators, including pollinator
efficiency and flight distances;
6. Updating abundance and populations demographics;
7. Adding information on a fence constructed by the BLM to restrict
off-highway vehicle (OHV) access;
8. Updating nonnative, invasive species information;
9. Updating herbivory information; and
10. Updating mine exploration and development information.
We also modified our description of physical and biological
features (PBFs) 1 and 4 to reflect the habitat needs of the species
more accurately. PBF 1 still addresses the plant community needed by
Tiehm's buckwheat but has been updated to include additional associated
species to maintain plant-plant interactions and ecosystem resiliency
needed by the species. PBF 4 still addresses suitable soils but has
been updated with new scientific information related to the soils used
by the species. These changes to the SSA are also reflected in the rule
portion of this document in paragraph (2).
Supporting Documents
The Service prepared a SSA report (Service 2022, entire), 12-month
finding (86 FR 29975; June 4, 2021), proposed listing rule (86 FR
55775; October 7, 2021), and proposed critical habitat rule (87 FR
6101; February 3, 2022) for Tiehm's buckwheat. We prepared version 1.0
of the SSA (Service 2021a) and placed it on https://www.regulations.gov
under Docket No. FWS-R8-ES-2020-0017 at the time we published the
proposed listing rule. Version 1.0 of the SSA was also supporting
information for the proposed critical habitat rule under that same
docket number. In responding to comments on the proposed listing and
proposed critical habitat rules, we updated the SSA to version 2.0
(Service 2022, entire), which is also available on https://www.regulations.gov along with this document (which combines the final
listing and final critical habitat rules) under Docket No. FWS-R8-ES-
2020-0017.
The SSA team was composed of Service biologists, in consultation
with other species experts, that collected and analyzed the best
available information to support this final listing and final critical
habitat designation. The science provided in the SSA report, the 12-
month finding, the proposed listing rule, and the proposed critical
habitat rule is the basis for this final listing and final critical
habitat rule. The SSA report, 12-month finding, proposed listing rule,
and proposed critical habitat rule represent a compilation of the best
scientific and commercial data available regarding a full status
assessment of the species, including past, present, and future impacts
(both negative and positive) 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, the SSA report underwent independent
peer review by three of the four scientists that we requested for peer
review with expertise in botany, rare plant conservation, and plant
ecology. The Service also sent the SSA report to three partner
agencies, the Nevada Division of Forestry (NDF), the Nevada Division of
Natural Heritage (NDNH), and the BLM, for review. We received comments
from NDNH and BLM. In addition, we requested peer review of the
proposed critical habitat rule for Tiehm's buckwheat from six
scientists, and we did not receive any responses. The purpose of peer
and partner review of the SSA report and proposed critical habitat rule
is to ensure that our listing and critical habitat determination is
based on scientifically sound data, assumptions, and analyses. Comments
we received during peer and partner review were considered and
incorporated into our SSA report.
I. Final Listing Determination
Background
A thorough review of the taxonomy, life history, and ecology of
Tiehm's buckwheat is presented in the SSA report (Service 2022, pp. 13-
26). A summary of the SSA is provided below.
Species Description, Habitat, and Needs
Tiehm's buckwheat was first discovered in 1983 and described in
1985. All available taxonomic and genetic research information
indicates that Tiehm's buckwheat is a valid and recognizable taxon and
represents a distinct species (Reveal 1985, pp. 277-278; Grady 2012,
entire; Davis in litt. 2019; Wolf 2021, entire). Tiehm's buckwheat is a
low-growing perennial herb, with blueish gray leaves and pale, yellow
flowers that bloom from May to June and turn red with age. Seeds ripen
in late-June through mid-July (Reveal 1985, pp. 277-278; Morefield
1995, pp. 6-7).
Tiehm's buckwheat occurs between 5,906 and 6,234 feet (ft; 1,800
and 1,900 meters (m)) in elevation and on all aspects with slopes
ranging from 0-50 degrees (Ioneer 2020a, p. 5; Morefield 1995, p. 11).
The species occurs on dry, upland sites, subject only to occasional
saturation by rain and snow and is not found in association with free
surface or subsurface waters (Morefield 1995, p. 11). Although there is
no information on Tiehm's buckwheat's specific water needs during its
various life stages (i.e., dormant seed, seedling, juvenile, adult),
Tiehm's buckwheat appears to be primarily dependent on occasional
precipitation for its moisture supply (Morefield 1995, p. 11).
Like most terrestrial plants, Tiehm's buckwheat requires soil for
physical support and as a source of nutrients and water. Tiehm's
buckwheat is a soil specialist or edaphic endemic specifically adapted
to grow on its preferred soil type. The species occurs on soil with a
high percentage (70-95 percent) of surface fragments that is classified
as clayey, smectitic, calcareous, mesic Lithic Torriorthents; clayey-
skeletal, smectitic, mesic Typic Calcicargids; and clayey, smectitic,
mesic Lithic Haplargids (United States Department of Agriculture
Natural Resources Conservation Service (USDA NRCS 2022, entire). The A
horizon is thin (0-5.5 inches (in) (0-14 centimeters (cm))); B horizons
are present as Bt (containing illuvial layer of lattice clays) or Bw
(weathered); C horizons are not always present; and soil depths to
bedrock range from 3.5 to 20 in (9 to 51 cm; USDA NRCS 2022, entire).
The soil pH is greater than 7.6 (i.e., alkaline) in
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all soil horizons (USDA NRCS 2022, entire). All horizons effervesce to
varying degrees using hydrochloric acid, indicating the presence of
calcium carbonate throughout the soil profile (USDA NRCS 2022, entire).
Soil horizons are characterized by a variety of textures and include
gravelly clay loam, sand, clay, very gravelly silty clay, and gravelly
loam (USDA NRCS 2022, entire).
Where Tiehm's buckwheat grows, the vegetation varies from
exclusively Tiehm's buckwheat plants to sparse associations with a few
other low-growing herbs and grass species. The abundance and diversity
of arthropods (insects, mites, and spiders) observed in Tiehm's
buckwheat subpopulations is especially high (1,898 specimens from 12
orders, 70 families, and 129 species were found in 2020) for a plant
community dominated by a single native herb species (McClinton et al.
2020, p. 11). Primary insect visitors to Tiehm's buckwheat include
bees, wasps, beetles, and flies (McClinton et al. 2020, p. 18). A
combination of pitfall traps, flower--insect observations, and
pollinator exclusion studies demonstrate that Tiehm's buckwheat
benefits from insect visitors and that the presence of an intact
pollinator community is important for maintaining the species (Service
2022, pp. 15-21).
Tiehm's buckwheat is a narrow-ranging endemic known from only one
population, comprising eight subpopulations, in the Rhyolite Ridge area
of Silver Peak Range in Esmeralda County, Nevada. The single population
of Tiehm's buckwheat is restricted to approximately 10 ac (4 ha) across
a 3-square-mile area, located entirely on public lands administered by
BLM. The subpopulations are separated by a rural, unpaved, county road
where subpopulations 1, 2, and 8 occur north of the road, and
subpopulations 3, 4, 5, 6, and 7 occur south of the road (figure 1). A
2019 survey estimated that the total Tiehm's buckwheat population was
43,921 individual plants (table 1; Kuyper 2019, p. 2). Multiple survey
efforts have not detected additional populations of the species.
In 2021, the first complete census of Tiehm's buckwheat was
systematically conducted following an herbivory event (described in
Summary of Biological Status and Threats, below, under Herbivory) that
impacted the population in 2020 (Fraga 2021a, entire). During the
census, living plants observed within each subpopulation were counted,
totaling 15,757 living plants (table 1; Fraga 2021a, p. 5). Based on
the number of plants counted during the 2021 census, the 2019 estimates
in subpopulations 4 and 6 were likely overestimated. Because the survey
methods used varied between surveyed years, we are unable to infer
population trends over time. However, the 2021 census provides the best
estimate of Tiehm's buckwheat plants to date as it was a direct count
of living individuals.
BILLING CODE 4333-15-P
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[GRAPHIC] [TIFF OMITTED] TR16DE22.018
Table 1--Summary of Tiehm's Buckwheat Individuals and Occupied Habitat
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Estimated number of plants Occupied habitat (acres)
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Population Subpopulation 2008/2010
1994 \a\ \b\ 2019 \c\ 2021 \e\ 2008/2010 2019
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1........................................ 1 7,000+ 15,380 9,240 4,420......................................... 4.71 4.81
2 3,000+ 4,000 4,541 1,719......................................... 1.17 1.56
3 500+ 4,000 1,860 1,165......................................... 0.62 0.63
4 500+ 1,960 8,159 649........................................... 0.58 1.04
5 15 100 \d\ 199 3............................................. 0.03 0.04
6 6,000+ 11,100 19,871 7,787......................................... 1.64 1.88
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7 n/a n/a \d\ 50 14............................................ n/a 0.004
8 n/a n/a \d\ 1 not censused in 2021.......................... n/a (1 plant)
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Total................................ 17,015+ 36,540 43,921 15,757........................................ 8.75 9.97
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\a\ Ocular estimate.
\b\ Method employed: ``Estimating Population Size Based on Average Central Density'' (Morefield 2008, entire: Morefield 2010, entire).
\c\ Method employed: Modified density sampling methodology in BLM technical reference ``Sampling Vegetation Attributes'' (BLM 1999, Appendix B) and ``Measuring and Monitoring Plant
Subpopulations'' (Elzinga et al. 1998).
\d\ Direct count.
\e\ Census of all living plants (Fraga 2021a, entire).
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and the implementing
regulations in title 50 of the Code of Federal Regulations set forth
the procedures for determining whether a species is an endangered
species or a threatened species, issuing protective regulations for
threatened species, and designating critical habitat for threatened and
endangered species. In 2019, jointly with the National Marine Fisheries
Service, the Service issued final rules that revised the regulations in
50 CFR part 424 regarding how we add, remove, and reclassify threatened
and endangered species and the criteria for designating listed species'
critical habitat (84 FR 45020; August 27, 2019). At the same time the
Service also issued final regulations that, for species listed as
threatened species after September 26, 2019, eliminated the Service's
general protective regulations automatically applying to threatened
species the prohibitions that section 9 of the Act applies to
endangered species (84 FR 44753; August 27, 2019). We collectively
refer to these actions as the 2019 regulations.
As with the proposed rule, we are applying the 2019 regulations for
this final rule because the 2019 regulations are the governing law just
as they were when we completed the proposed rule. Although there was a
period in the interim--between July 5, 2022, and September 21, 2022--
when the 2019 regulations became vacated and the pre-2019 regulations
therefore governed, the 2019 regulations are now in effect and govern
listing and critical habitat decisions (see Center for Biological
Diversity v. Haaland, No. 4:19-cv-05206-JST, Doc. 168 (N.D. Cal. July
5, 2022) (CBD v. Haaland) (vacating the 2019 regulations and thereby
reinstating the pre-2019 regulations)); In re: Cattlemen's Ass'n, No.
22-70194 (9th Cir. Sept. 21, 2022) (staying the district court's order
vacating the 2019 regulations until the district court resolved a
pending motion to amend the order); Center for Biological Diversity v.
Haaland, No. 4:19-cv-5206-JST, Doc. Nos. 197, 198 (N.D. Cal. Nov. 16,
2022) (granting plaintiffs' motion to amend July 5, 2022 order and
granting government's motion for remand without vacatur).
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range, and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an endangered species or a threatened
species because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the species' expected response and
the effects of the threats--in light of those actions and conditions
that will ameliorate the threats--on an individual, population, and
species level. We evaluate each threat and its expected effects on the
species, then analyze the cumulative effect of all of the threats on
the species as a whole. We also consider the cumulative effect of the
threats in light of those actions and conditions that will have
positive effects on the species, such as any existing regulatory
mechanisms or conservation efforts. The Secretary determines whether
the species meets the definition of an ``endangered species'' or a
``threatened species'' only after conducting this cumulative analysis
and describing the expected effect on the species now and in the
foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as we can
reasonably determine that both the future threats and the species'
responses to those threats are likely. In other words, the foreseeable
future is the period of time in which we can make reliable
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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 our decision
on whether the species should be listed as an endangered or threatened
species under the Act. However, it does provide the scientific basis
that informs our regulatory decisions, which involve the further
application of standards within the Act and its implementing
regulations and policies. The following is a summary of the key results
and conclusions from the SSA report; the full SSA report can be found
at Docket No. FWS-R8-ES-2020-0017 on https://www.regulations.gov.
To assess Tiehm's buckwheat 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 (e.g., wet or dry, warm or
cold years), redundancy supports the ability of the species to
withstand catastrophic events (e.g., droughts, large pollution events),
and representation supports the ability of the species to adapt over
time to long-term changes in the environment (e.g., climate changes).
In general, the more resilient and redundant a species is and the more
representation it has, the more likely it is to sustain populations
over time, even under changing environmental conditions. Using these
principles, we identified the species' ecological requirements for
survival and reproduction at the individual, population, and species
levels, and described the beneficial and risk factors influencing the
species' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the 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.
Biological Status and Threats
Here 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.
For Tiehm's buckwheat to maintain viability, its populations or
some portion thereof must be resilient. The resiliency of Tiehm's
buckwheat is influenced by the availability of suitable habitat,
species abundance, and recruitment. The species' resiliency is
discussed in detail in the SSA report (Service 2022, entire) and
summarized here.
Summary of Biological Status and Threats
We reviewed the potential threats that could be affecting Tiehm's
buckwheat now and in the future. In this final rule, we will discuss
only those threats in detail that could meaningfully impact the status
of the species. We evaluated the potential for all threats under the
five listing factors in the SSA and found that overutilization for
commercial and scientific purposes (Factor B) and disease (Factor C),
are not affecting the species; therefore, these threats are not
discussed here. The primary threats affecting the status of Tiehm's
buckwheat are physical alteration of habitat due to mineral exploration
and development, road development and OHV use, livestock grazing, and
nonnative, invasive plant species (all Factor A threats); herbivory
(Factor C); and climate change (Factor E). Climate change may further
influence the degree to which these threats, individually or
collectively, may affect Tiehm's buckwheat. While we generally discuss
these threats individually, threats can also occur simultaneously, thus
additively affecting the resiliency of Tiehm's buckwheat. Where
different individual threats occur at the same time and place, we will
describe how they may interact with one another in the threats
discussion below. Threats may be reduced through the implementation of
existing regulatory mechanisms or other conservation efforts that
benefit Tiehm's buckwheat and its habitat, and so we also summarize and
discuss how the existing regulatory mechanisms (Factor D) address these
threats.
Herbivory
The naturally occurring Tiehm's buckwheat population (represented
by one population with eight subpopulations) and a seedling transplant
experiment suffered detrimental herbivory in 2020. The naturally
occurring population experienced greater than 60 percent damage or loss
of individual plants, while almost all experimental transplants were
lost to rodent herbivores in a 2-week period (Service 2020, pp. 29-33).
An environmental DNA analysis (i.e., trace DNA found in soil, water,
food items, or other substrates with which an organism has interacted)
conducted on damaged Tiehm's buckwheat roots, nearby soils, and rodent
scat strongly linked small mammal herbivory to the widespread damage
and loss of the naturally occurring Tiehm's buckwheat population (Grant
2020, entire). This instance was the first time herbivory was
documented on the species, although, prior to 2019, surveys of the
population were infrequent. The significance of herbivory in the
naturally occurring population depends not only on its frequency and
intensity, but also on whether damaged plants can recover and survive,
as we are uncertain if the species will be able to recover from this
damage and loss. Rodent herbivory precluded seedling survival in
experimental plots. Further studies and monitoring need to be conducted
to determine if management to reduce rodent herbivory is necessary to
maintain Tiehm's buckwheat individuals and subpopulations, or if this
significant herbivory event was only a random catastrophic event that
is not likely to occur on a regular basis.
The 2020 herbivory event that Tiehm's buckwheat experienced was
extensive enough to compromise the long-term viability of individuals,
subpopulations, and the overall population. One possible explanation
for why this event occurred is that a
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changing climate is leading to temperature increases and changes in
moisture availability. Total precipitation was above average in the
Rhyolite Ridge area from 2015 through 2019, whereas in 2020, it was
significantly below average. Increases in precipitation are typically
followed by increases in rodent populations (Beatley 1976, entire;
Brown and Ernest 2002, pp. 981-985; Gillespie et al. 2008, pp. 78-81;
Randel and Clark 2010; entire). This sudden shift from above- to below-
average precipitation may have impacted the abundance and behavior of
the local rodent population at Rhyolite Ridge; rodents in drought
conditions may have been seeking water from whatever source was
available and, in this case, found the shallow taproots of mature
Tiehm's buckwheat plants (Boone 2020, entire; Morefield 2020, p. 12).
If herbivory was driven by a water-stressed rodent population, future
alteration of temperature and precipitation patterns may create climate
conditions for this situation to happen again, resulting in further
damage or loss of Tiehm's buckwheat individuals.
To better understand damage to Tiehm's buckwheat, all living plants
within each subpopulation were counted in June 2021 (Fraga 2021a, pp.
5-6). A high proportion of plants appeared to be recovering from
damage, especially in subpopulations 1, 2, and 4. However, the
approximate number of plants recovering from damage was difficult to
determine (Fraga 2021a, p. 5). Subpopulations 5 and 7 were presumed to
be extirpated in 2020, but 3 individuals in subpopulation 5 and 14
individuals in subpopulation 7 were observed (Fraga 2021a, p. 6).
Subpopulation 4 was the most severely impacted, with only 649 of the
estimated 8,159 individuals remaining--a 92 percent decrease (Fraga
2021a, p. 6). Based on the 2021 census, it is estimated that all
subpopulations, except for subpopulation 3, were reduced by 50 percent
or more due to the 2020 herbivory event (table 3; Service 2022 p. 36;
Fraga 2021a, p. 6). Regardless of whether the 2019 or 2021 population
estimates are used to measure damage to Tiehm's buckwheat
subpopulations, 60 percent or more plants were negatively impacted by
the 2020 herbivory event.
Tiehm's buckwheat subpopulations were monitored throughout 2021,
and no new widespread damage to plants was observed (BLM 2021a, entire;
BLM 2021b, entire; BLM 2021c, entire; BLM 2021d, entire; BLM 2021e,
entire; BLM 2021f, entire; BLM 2021g, entire; BLM 2021h, entire; BLM
2021i, entire; Fraga 2021a, p. 6; Garrison and Siebert 2021a, entire;
Garrison and Siebert 2021b, entire; Heston 2021, entire; Kindred 2021,
entire).
Mineral Exploration and Development
The specialized soils on which Tiehm's buckwheat occurs overlie and
are developed directly from a sedimentary layer rich in mineralized
lithium and boron, making this location of high interest for mineral
development. Trenches and mine shafts associated with mineral
exploration and development have already impacted subpopulations 1, 2,
3, 4, and 6, resulting in the loss of some of Tiehm's buckwheat habitat
(Morefield 1995, p. 15). Future mineral exploration and development
would be expected to result in similar or more detrimental impacts to
the species. The BLM lands on which Tiehm's buckwheat occurs are
subject to the operation of the Mining Law of 1872, as amended (30
U.S.C. 22-54). Under BLM's regulations, operators may explore and cause
a surface disturbance of up to 5 acres after an operator gives notice
to BLM and waits 15 days (43 CFR 3809.21(a)). By contrast, if a
federally proposed or listed species or their proposed or designated
critical habitat is present, unless BLM allows for other action under a
formal land-use plan or threatened or endangered species recovery plan,
an operator must submit a mining plan of operation and obtain BLM
approval for any surface disturbance greater than casual use (43 CFR
3809.11(c)(6)).
In May 2020, Ioneer USA Corporation (Ioneer) submitted a plan of
operations (2020 PoO) to BLM for the proposed Rhyolite Ridge lithium-
boron project. The 2020 PoO, if permitted as proposed, would result in
the complete loss of Tiehm's buckwheat habitat and subpopulations 4, 5,
6, and 7, even with the voluntary protection measures included in
Ioneer's project proposal. The voluntary protection measures included
in Ioneer's project proposal are summarized below in Conservation
Measures and Regulatory Mechanisms (protection measures are described
more thoroughly in Service 2022, pp. 39-42). The potential impact from
the project proposed in the 2020 PoO would reduce the remaining Tiehm's
buckwheat population by 54 percent, or from 15,757 individuals to
roughly 7,305 individuals, and remove 30 percent of its total habitat
(2.96 ac (1.2 ha); Ioneer 2020a, figure 4, p. 29). At the end of the
project as proposed, areas previously occupied by Tiehm's buckwheat in
subpopulations 4-7 would be underwater within the boundaries of a
quarry lake (Ioneer 2020b, pp. 71-72). In the 2020 PoO, Ioneer proposed
to remove and salvage all remaining plants in subpopulations 4, 5, 6,
and 7 (approximately 8,453 plants) and translocate them to another
location. However, Tiehm's buckwheat is a soil specialist or edaphic
endemic and adjacent, unoccupied sites are not suitable for all early
life-history stages (McClinton et al. 2020, entire; NewFields 2021,
entire). The results of that research combined with herbivore impacts
on transplanted seedlings, a lack of understanding of factors
influencing demographic processes, a lack of understanding of dispersal
mechanisms and seedling recruitment, and a lack of testing and
multiyear monitoring on the feasibility of transplanting the species,
results in a high level of uncertainty regarding the potential for
success of translocation efforts (e.g., Godefroid et al. 2011, entire;
Maschinski and Haskins 2012, entire; Albrecht et al. 2018, entire; Ward
et al. 2021, entire).
Subpopulation 6 may be the most resilient of the eight Tiehm's
buckwheat subpopulations because it has the most individuals, produces
a higher average density of flowers (correlating to a higher seed
output), supports high pollinator diversity, and supports a variety of
size classes, including having the most individuals in the smallest
size class indicating that this subpopulation is likely experiencing
the most recruitment (Kuyper 2019, p. 3; Ioneer 2020a, pp. 7-8;
McClinton et al. 2020, pp. 23, 51). Loss of this subpopulation to the
proposed Rhyolite Ridge lithium-boron project may have an immense
impact on the overall resiliency and continued viability of the
species, beyond just the loss of individuals (representation).
Rare plant species, like Tiehm's buckwheat, that have restricted
ranges, specialized habitat requirements, and limited recruitment and
dispersal, have a higher risk of extinction due to demographic
uncertainty and random environmental events (Shaffer 1987, pp. 69-75;
Lande 1993, pp. 911-927; Hawkins et al. 2008, pp. 41-42; Caicco 2012,
pp. 93-94; Kaye et al. 2019, p. 2; Corlett and Tomlinson 2020, entire;
Hulshof and Spasojevic 2020, entire). Additionally, habitat
fragmentation poses specific threats to species through genetic factors
such as increases in genetic drift and inbreeding, together with a
potential reduction in gene flow from neighboring individuals or
subpopulations (Jump and Pe[ntilde]uelas 2005, pp. 1015-1016). The
effects of habitat fragmentation from the proposed Rhyolite Ridge
lithium-boron project on Tiehm's buckwheat may be
[[Page 77375]]
compounded by the inherently poor dispersal of the species and its
specific soil requirements.
In November 2021, Ioneer met with BLM and the Service to discuss
proposed revisions to their 2020 PoO for the Rhyolite Ridge lithium-
boron project (Service 2021b, entire) including adjustments to the
proposed quarry location. On May 27, 2022, Ioneer provided the Service
with a memorandum further describing the proposed revisions to their
2020 PoO (Ioneer 2022a, entire). On July 18, 2022, Ioneer submitted
their revised PoO to BLM and provided the Service with a copy on August
8, 2022. On August 17, 2022, BLM determined the revised PoO was
complete under 43 CFR 3809.401(b); however, BLM resource specialists
are still in the process of receiving and reviewing baseline data
reports that further explain the details of the 2022 revised PoO. BLM
will analyze the environmental impacts of approving the project under
National Environmental Policy Act (NEPA), and BLM may initiate
consultation with the Service under section 7 of the Act.
The 2022 revised PoO includes modifications such as relocating the
quarry to avoid individual Tiehm's buckwheat plants and implementing
13-127 ft (4-39 m) buffers with fencing around each subpopulation
(Ioneer 2022b, p. 14 and Appendix J). An explosives storage area is
proposed adjacent to subpopulation 1 (Ioneer 2022b, Figure 4). To the
east, subpopulations 3, 4, 5, 6, and 7 would be concerningly close to a
960-ft (293 m) deep open-pit quarry and when mining is complete, a
terminal quarry lake (Ioneer 2022b, p. 24, 74). In addition, over-
burden storage facilities are proposed on the west side of
subpopulations 3, 4, 5, 6, and 7 (Ioneer 2022b, p. 25). The combination
of the quarry development and over-burden storage facilities are
projected to disturb and remove up to 38 percent of critical habitat
for this species, impacting pollinator populations, altering hydrology,
removing soil, and risking subsidence.
Road Development and Off-Highway Vehicle Use
Ecological impacts of roads and ground-disturbing activities like
OHV use include altered hydrology, pollution, sedimentation, silt
erosion and dust deposition, habitat fragmentation, reduced species
diversity, and altered landscape patterns (Forman and Alexander 1998,
entire; Spellerberg 1998, entire). OHV impacts have occurred in
subpopulations 1, 4, 5, and 6 (Caicco and Edwards 2007, entire;
Donnelly and Fraga 2020, p. 1; Ioneer 2020a, p. 10; Donnelly 2021a
entire; Donnelly 2021b, entire; Fraga 2021a, p. 7; Heston 2021, p. 1;
Kindred 2021, p. 1) and can compact soil, crush plants, and modify
habitat through fragmentation. Mining and mineral exploration
activities that grade, improve, and widen roads in the Rhyolite Ridge
area may allow easier and greater access for OHVs and recreational use.
Additionally, road development and increased vehicle traffic associated
with the proposed mine may create conditions that further favor the
establishment of nonnative, invasive species within Tiehm's buckwheat
habitat.
Ioneer's proposed Rhyolite Ridge lithium-boron project would
construct and maintain service and haul roads within the Rhyolite Ridge
area. Cave Springs Road (as seen on figure 1) is currently maintained
by Esmeralda County and bisects Tiehm's buckwheat subpopulations.
Realignment of this road is proposed to accommodate haul roads. It is
expected that the rerouted road would be transferred to the county at
closure, as an amendment to the county's existing right-of-way with BLM
(Ioneer 2020b, p. 44). The expected amount of truck traffic associated
with providing needed materials and supplies and product transport for
the proposed project is anticipated to be 100 round trips per day, 365
days per year (Ioneer 2020b, p. 7).
Dust deposition, often a result of vehicle traffic on roads,
negatively affects the physiological processes of plants including
photosynthesis, reproduction, transpiration, water use efficiency, leaf
hydraulic conductance, and stomatal disruption that impedes the ability
of the stomata to open and close effectively (Hirano et al. 1995, pp.
257-260; Vardaka et al. 1995, pp. 415-418; Wijayratne et al. 2009, pp.
84-87; Lewis 2013, pp. 56-79; Sett 2017, entire). Physiological
disruption to Tiehm's buckwheat individuals from dust generated from
vehicular traffic associated with the proposed Rhyolite Ridge lithium-
boron project would likely negatively affect the overall health and
physiological processes of the population.
To restrict access of OHVs into subpopulations of Tiehm's
buckwheat, the BLM constructed two pipe rail fences in December of 2021
(BLM 2021j, entire). One fence, approximately 1,500 ft (457 m) long,
was constructed along the unnamed wash road southeast of subpopulation
1 (BLM 2021j, pp. 4-5). A second fence was installed at the entrance of
the intersection of Cave Springs Road and a mine exploration road,
preventing OHV access to subpopulations 3, 4, 5, 6, and 7 (BLM 2021j,
pp. 4-5). BLM will monitor the effectiveness of the fences and plans to
add signage to notify the public of the sensitive resources in the area
(BLM 2021j, pp. 4-5).
Livestock Grazing
Livestock grazing has the potential to result in negative impacts
to Tiehm's buckwheat individuals, subpopulations, and/or the
population, depending on factors such as stocking rate and season of
use. Livestock grazing may result in direct impacts to individual
Tiehm's buckwheat plants due to trampling of vegetation and soil
disturbance (compaction) in ways that can render habitat unsuitable to
established plants, while also discouraging population recruitment (by
discouraging seed retention, seed germination, and seedling survival).
Patterns of soil disturbance associated with grazing can also create
conditions conducive to the invasion of nonnative plant species (Young
et al. 1972, entire; Hobbs and Huenneke 1992, p. 329; Loeser et al.
2007, pp. 94-95).
Tiehm's buckwheat occurs in the BLM Silver Peak livestock grazing
allotment (BLM 1997, p. 15, map 17). The grazing permit for the Silver
Peak allotment (NV00097) was reauthorized on September 9, 2020, with a
4-year term that expires on September 24, 2024 (BLM 2021k, entire). No
grazing exclosures are associated with Tiehm's buckwheat within this
BLM allotment, and trampling and cow manure have been observed in
subpopulation 1 (Donnelly 2022, entire). Although some Tiehm's
buckwheat individuals may be impacted by this threat, current grazing
damage to Tiehm's buckwheat has not been observed. In January 2022, the
permittee agreed to move the livestock west of the subpopulations to
avoid any further impacts to Tiehm's buckwheat (Truax, BLM, pers. comm.
2022). Currently, 658 active AUMs (animal unit months) and 2,507
temporarily suspended AUMs are associated with the Silver Peak
allotment due to stocking water range improvements that have fallen out
of repair.
Upon expiration of the Silver Peak allotment grazing permit, BLM
will consider reauthorization and/or changing the number of active
AUMs. Range improvements are in progress, and additional AUMs may be
returned on this allotment (Truax, pers. comm. 2020). However, grazing
impacts could potentially increase in the future if additional AUMs are
returned to this allotment.
[[Page 77376]]
Nonnative, Invasive Plant Species
Nonnative, invasive plant species could negatively affect Tiehm's
buckwheat individuals, subpopulations, and/or the population through
competition, displacement, and degradation of the quality and
composition of its habitat (Gonzalez et al. 2008, entire; Simberloff et
al. 2013, entire). Surveys of Tiehm's buckwheat conducted between 1994
and 2010 did not document any occurrences of nonnative, invasive
species in its habitat (Morefield 1995, entire; Caicco and Edwards
2007, entire; Morefield 2008, entire; Morefield 2010, entire). However,
saltlover (Halogeton glomeratus) has since become established to some
degree and is part of the associated plant community in all
subpopulations of Tiehm's buckwheat (CBD 2019, pp. 20-21; Ioneer 2020a,
pp. 9-10 Fraga 2021b, pp. 3-4; WestLand Engineering & Environmental
Services, Inc (WestLand) 2021, pp. 23-25). Vehicles can carry the seeds
of nonnative, invasive plant species into the area, and soil
disturbances, such as mineral exploration activities, can encourage the
spread of saltlover, which alters the substrate by making the soil more
saline and less suitable as habitat for Tiehm's buckwheat. In 2021,
ocular estimates of saltlover observed between subpopulations 1 and 2
was 20-25 percent in an area that had been used in mining exploration
and 10-15 percent near subpopulations 4 and 5 along a reclaimed
exploration road (Fraga 2021b, p. 3). As of 2021, saltlover is the most
abundant nonnative, invasive species within and adjacent to all
subpopulations of Tiehm's buckwheat, especially in areas disturbed from
mining exploration activities (CBD 2019, pp. 20-21; Fraga 2021b, p. 3).
Road development and vehicle traffic associated with the proposed
mine as well as livestock grazing, which currently occurs within
Tiehm's buckwheat population as part of BLM's Silver Peak allotment,
may create conditions that further favor the establishment of
nonnative, invasive species within Tiehm's buckwheat habitat. For
example, Ioneer's Rhyolite Ridge lithium-boron project proposes to
construct and operate a quarry, processing plant, overburden storage
facility, spent ore storage facility, and access roads (Ioneer 2020b,
p. 11). If the project is approved, and these ground-disturbing
activities occur, there is a potential for increase in spread of
nonnative, invasive plant species. However, this possible increase
would depend on conditions associated with approval of the proposed
project. Under NEPA (42 U.S.C. 4321 et seq.), BLM has the discretion to
analyze best management practices to help reduce the likelihood that
nonnative, invasive plant species are introduced and spread in Tiehm's
buckwheat habitat.
Climate Change
Tiehm's buckwheat occurs in the Great Basin Desert of Nevada (the
largest contiguous area of watersheds with no outlets in North America
that spans nearly all of Nevada, much of Utah, and portions of
California, Idaho, and Oregon), where the effects of climatic changes
depend largely on the interaction of temperature and precipitation.
Between 1895 and 2011, temperatures in the Great Basin have increased
1.2 to 2.5 [deg]F (0.7 to 1.4 [deg]C), with a greater increase in the
southern portion (where Tiehm's buckwheat occurs) than in the northern
portion (Snyder et al. 2019, p. 3). Temperatures are increasing more at
night than during the day and more in winter than in summer, leading to
fewer cold snaps, more heatwaves, fewer frosty days and nights, less
snow, and earlier snowmelt (Stewart et al. 2005, p. 1152; Mote et al.
2005, entire; Knowles et al. 2006, p. 4557; Abatzoglou and Kolden 2013,
entire; Padgett et al. 2018, p. 167; Snyder et al. 2019, p. 3).
Although these observed trends provide information as to how climate
has changed in the past, climate models can be used to simulate and
develop future climate projections.
Simulations using downscaled methods from 20 global climate models
project mean average temperature during December, January, and February
for the Rhyolite Ridge area will increase by 2.3 [deg]F (1.3 [deg]C) by
2060 and 3.4 [deg]F (1.9 [deg]C) by 2099 under moderate emission
scenarios (RCP 4.5; Hegewisch and Abatzoglou 2020a). Under high
emission scenarios (RCP 8.5), mean average temperatures during winter
months increase by 3.6 [deg]F (2 [deg]C) by 2060 and 7.1 [deg]F (3.9
[deg]C) by 2099. Likewise, these models project maximum average
temperatures during June, July, and August for the Rhyolite Ridge area
to increase by 2.9 [deg]F (1.6 [deg]C) by 2060 and 4.1 [deg]F (2.3
[deg]C) by 2099 under moderate emission scenarios (RCP 4.5). Under high
emission scenarios (RCP 8.5), maximum average temperatures during
summer months increased by 4.6 [deg]F (2.6 [deg]C) by 2060 and 8.9
[deg]F (4.9 [deg]C) by 2099 (Hegewisch and Abatzoglou 2020a).
Additionally, simulations using these downscaling methods from
multiple models project annual precipitation for the Rhyolite Ridge
area to increase by 0.4 in (10.16 millimeters (mm)) by 2060 and 0.6 in
(15.24 mm) by 2099 under moderate emission scenarios (RCP 4.5). Under
high emission scenarios (RCP 8.5), annual precipitation increases by
0.3 in (7.62 mm) by 2060 and 0.7 in (17.78 mm) by 2099 (Hegewisch and
Abatzoglou 2020a). Total precipitation was above average in the
Rhyolite Ridge area during the period 2015-2019, ranging from 6.1 to
8.7 in (15.5 to 22 cm) a year (Hegewisch and Abatzoglou 2020b).
Whereas, in 2020, total average precipitation for the same area was 2.7
in (6.8 cm; Hegewisch and Abatzoglou 2020c).
Tiehm's buckwheat is adapted to dry, upland sites, subject only to
occasional saturation by rain and snow. Increasing temperature can
affect precipitation patterns. The fraction of winter precipitation
(November-March) that falls as snow versus rain is declining in the
western United States (Palmquist et al. 2016, pp. 13-16). When
temperatures are cold enough to limit water losses from plant
transpiration and soils are not frozen, shifts from snow to rain may
have minimal impact on deep soil water storage. If rainfall replaces
snow and temperatures are increased enough to thaw soils to stimulate
plant growth and physiological activity earlier in the year, this
scenario would result in less deep soil water recharge (i.e., less soil
water infiltration and more evaporation) and potential changes in plant
community composition (Huxman et al. 2005, entire).
Fire is a naturally occurring phenomenon that impacts the
distribution and structure of vegetation (Willis 2017, p. 52). However,
due to increasing temperatures and reductions in precipitation, the
severity and frequency of wildfires is likely to increase (Chambers and
Wisdom 2009, pp. 709-710; Comer et al. 2013, pp. 130-135; Snyder et al.
2019, p. 8). While the Great Basin is extremely prone to fires, with 14
million ac (5.6 million ha) burning in the last 20 years, there are no
reported accounts of fire within Tiehm's buckwheat habitat or in the
surrounding Rhyolite Ridge area (BLM 2020a, entire). We currently do
not have any data to indicate what level of effect wildfire could have
on Tiehm's buckwheat; however, it could result in habitat loss or
habitat fragmentation and/or remove Tiehm's buckwheat individuals.
The direct, long-term impact from climate change to Tiehm's
buckwheat is yet to be determined. The timing of phenological events,
such as flowering, are often related to environmental variables such as
temperature. Large-scale patterns of changing plant distributions,
flowering times, and novel community assemblages in response to rising
temperatures and changing rainfall patterns are apparent
[[Page 77377]]
in many vegetation biomes (Parmesan 2006, entire; Burgess et al. 2007,
entire; Hawkins et al. 2008, entire; Munson and Long 2017, entire;
Willis 2017, pp. 44-49). However, we do not know if or how climate
change may alter the phenology of Tiehm's buckwheat or cause changes in
pollinator behavior.
In summary, Tiehm's buckwheat is adapted to dry, upland sites,
subject only to occasional saturation by rain and snow. Under climate
change predictions, we anticipate alteration of precipitation and
temperature patterns, as models forecast warmer temperatures and slight
increases in precipitation. The timing and type of precipitation
received (snow vs. rain) may impact plant transpiration and the soil
water recharge needed by Tiehm's buckwheat. Additionally, variability
in interannual precipitation combined with increasing temperatures, as
recently seen from 2015 through 2020, may make conditions less suitable
for Tiehm's buckwheat by bolstering local rodent populations. High
rodent abundance combined with high temperatures and drought may have
contributed to the herbivore impacts in 2020 in both the transplant
experiment and native population. Thus, climate change may exacerbate
impacts from rodent herbivory currently affecting this species and its
habitat.
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.
Conservation Measures and Regulatory Mechanisms
BLM
Tiehm's buckwheat is listed and managed as a BLM sensitive species
which are defined as ``species that require special management or
considerations to avoid potential future listing under the Act'' (BLM
2008a, pp. 1-48). Under this policy, BLM may initiate proactive
conservation measures including programs, plans, and management
practices to reduce or eliminate threats affecting the status of the
species or improve the condition of the species' habitat on BLM-
administered lands (BLM 2008a, Glossary, p. 2). BLM's regulations do
not require conservation measures for sensitive species as a condition
for exploring for, or developing minerals subject to disposal under,
the Mining Law of 1872, as amended (30 U.S.C. 22-54; Mining Law). Under
BLM's handbook, the Silver Peak allotment permits grazing across
281,489 ac (113,915 ha) that also encompass the area occupied by
Tiehm's buckwheat. Under the Federal Land Policy and Management Act of
1976, as amended (43 U.S.C. 1701 et seq.), BLM has the discretion to
establish and implement special management areas, such as areas of
critical environmental concern, to reduce or eliminate actions that
adversely affect sensitive species, such as Tiehm's buckwheat. Although
Tiehm's buckwheat is a BLM sensitive species, there are no special
restrictions or terms and conditions regarding livestock use within the
Silver Peak allotment where this species occurs. BLM has best
management practices (BMPs) for invasive and nonnative species that
focus on the prevention of further spread and/or establishment of these
species (BLM 2008b, pp. 76-77). BMPs should be considered and applied
where applicable to promote healthy, functioning native plant
communities, or to meet regulatory requirements. BMPs include
inventorying weed infestations, prioritizing treatment areas,
minimizing soil disturbance, and cleaning vehicles and equipment (BLM
2008b, pp. 76-77). However, incorporation or implementation of BMPs is
at the discretion of an authorized BLM officer.
In response to the 2020 herbivory event on Tiehm's buckwheat
subpopulations, BLM has been monitoring the species, and photo plots
were established near undamaged plants in subpopulations 1, 3, and 6 to
help determine whether herbivory is continuing (Crosby, BLM, pers.
comms. 2020a; Crosby, BLM, pers. comms. 2020b; BLM 2020b, entire; BLM
2020c, entire; BLM 2021a, entire; BLM 2021b, entire; BLM 2021c, entire;
BLM 2021d, entire; BLM 2021e, entire; BLM 2021f, entire; BLM 2021g,
entire; BLM 2021h, entire; BLM 2021i, entire). Ocular estimates from
the photo plots indicate that herbivory is not ongoing (BLM 2020b,
entire; BLM 2020c, entire; BLM 2021a, entire; BLM 2021b, entire; BLM
2021c, entire; BLM 2021d, entire; BLM 2021e, entire; BLM 2021f, entire;
BLM 2021g, entire; BLM 2021h, entire; BLM 2021i, entire).
To restrict access of OHVs to subpopulations of Tiehm's buckwheat,
the BLM constructed two pipe rail fences in December of 2021 (BLM
2021j, entire). One fence, approximately 1,500 ft (457 m) long, was
constructed along the unnamed wash road southeast of subpopulation 1
(BLM 2021j, pp. 4-5). A second fence was installed at the entrance of
the intersection of Cave Springs Road and a mine exploration road,
preventing OHV access to subpopulations 3, 4, 5, 6, and 7 (BLM 2021j,
pp. 4-5). BLM will monitor the effectiveness of the fences and plans to
add signage to notify the public of the sensitive resources in the area
(BLM 2021j, pp. 4-5).
Ioneer
As part of the proposed Rhyolite Ridge lithium-boron project,
Ioneer is developing a conservation plan for Tiehm's buckwheat with the
intent to protect and preserve the continued viability of the species
on a long-term basis. The conservation plan is in the early stages of
development (Ioneer 2020c, entire; Barrett, Service, pers. comm. 2021;
Tress, WestLand, pers. comm. 2021a; Tress, WestLand, pers. comm. 2021b;
Tress, WestLand, pers. comm. 2021c; Barrett, Service, pers. comm.
2022).
Ioneer has also implemented or proposed various protection measures
for Tiehm's buckwheat as part of the 2020 PoO for the Rhyolite Ridge
lithium-boron project. Ioneer funded the development of a habitat
suitability model to identify additional potential habitat for Tiehm's
buckwheat through field surveys (Ioneer 2020a, p. 12). In addition, a
demographic monitoring program was initiated in 2019 to detect and
document trends in population size, acres inhabited, size class
distribution, and cover with permanent monitoring transects established
in subpopulations 1, 2, 3, 4, and 6 (Ioneer 2020a, p. 16). Ioneer also
funded collection of Tiehm's buckwheat seed in 2019 (Ioneer 2020a, pp.
13-14). Some of this seed was used by the University of Nevada, Reno,
for a propagation trial and transplant study (Ioneer 2020a, p. 14). The
remainder of this seed is in long-term storage at Rae Selling Berry
Seed Bank at Portland State University (Ioneer 2020a, p. 13). Ioneer's
2020 PoO included avoiding subpopulations 1, 2, 3, and 8
[[Page 77378]]
(approximately 7,305 plants; Ioneer 2020a, p. 11), installing fences
and signage around subpopulations 1 and 2 (Ioneer 2020a, p. 11), and
removing and salvaging all remaining plants in subpopulations 4, 5, 6,
and 7 (approximately 8,453 plants) and translocating them to another
location (Ioneer 2020a, p. 15). However, in July 2022, Ioneer submitted
a revised mining PoO, and the proposed project may or may not be
permitted by BLM as proposed; thus, the project as proposed, and these
protection measures, may or may not be fully implemented.
Summary of Current Condition
Globally, Tiehm's buckwheat is known from eight subpopulations that
make up a single population (table 1). Tiehm's buckwheat substantially
supports the high abundance and diversity of arthropods and pollinators
found in the Rhyolite Ridge area. A specific set of soil conditions are
required for the growth of Tiehm's buckwheat, as the species is
specifically adapted to grow on its preferred soil type (McClinton et
al. 2020, pp. 29-32; NewFields 2021, pp. 17-24, table 3; USDA NRCS
2022, entire).
Tiehm's buckwheat occurs entirely on 10 ac (4 ha) of Federal lands
with sparse associations of other plant species. Tiehm's buckwheat is
considered a rare plant species that has a restricted range,
specialized habitat requirements, and limited recruitment and
dispersal, which results in a higher risk of extinction due to
demographic uncertainty and random environmental events. Under current
conditions, primary threats to the species include mineral exploration
and development; road development and OHV use; livestock grazing;
nonnative, invasive plant species; herbivory; and climate change. Many
of the threats currently affecting the species have the potential to
work in combination. For example, mineral exploration, road development
and OHV use, and livestock grazing can introduce nonnative, invasive
plant species, which in turn can directly compete with and displace
Tiehm's buckwheat within its habitat. With only one population (eight
subpopulations), the risks to a small plant population like Tiehm's
buckwheat include losses in reproductive individuals, declines in seed
production and viability, loss of pollinators, loss of genetic
diversity, and Allee effects (Eisto et al. 2000, pp. 1418-1420; Berec
et al. 2007, entire; Willis 2017, pp. 74-77), which will impact a
species that already has very limited redundancy and representation.
Data about Tiehm's buckwheat population dynamics are sparse, as
research and monitoring to better understand the species are still in
their infancy (Grant 2020, entire; Ioneer 2020a, pp. 11-18; McClinton
et al. 2020, entire; Service 2020, entire). As a result, the best
available data do not allow us to determine population trends such as
growth, survival, or reproductive rates. Therefore, our assessment of
current condition is based upon the current population estimates, the
condition of the habitat, and what is known regarding current and
future threats likely to occur within the range of the species.
Summary of Comments and Recommendations
In the proposed listing rule published on October 7, 2021 (86 FR
55775), we requested that all interested parties submit written
comments by December 6, 2021, and in the proposed critical habitat rule
published February 3, 2022 (87 FR 6101), we requested that all
interested parties submit written comments by April 4, 2022. We also
contacted appropriate Federal and State agencies, scientific experts
and organizations, and other interested parties and invited them to
comment on the proposals. Newspaper notices inviting general public
comment were published in the Las Vegas Review-Journal (on October 22,
2021, for the proposed listing rule and on February 11, 2022, for the
proposed critical habitat rule) and the Mineral County Independent-News
(on October 14, 2021, for the proposed listing rule and on February 10,
2022, for the proposed critical habitat rule). We did not receive any
requests for a public hearing. All substantive information received
during comment periods 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 three peer reviewers on the SSA and no comments from peer
reviewers on the proposed critical habitat. We also sent the SSA report
to two State agencies (NDF and NDNH) and the Federal agency (BLM) with
whom we work with on Tiehm's buckwheat conservation. 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 and partner reviewers generally concurred with our methods and
conclusions, and provided additional information, clarifications, and
suggestions to improve the final SSA report, including information on
subpopulations, seed dispersal, agency policies, updating future
scenarios, clarifications on herbivory, and other editorial
suggestions. Peer and partner reviewer comments were 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-ES-R8-2020-
0017 when the October 7, 2021, proposed rule (85 FR 55775) was
published.
Federal Agency, States, and Tribes
We did not receive any comments from Federal agencies, States, or
Tribes during the public comment periods.
Public Comments
We received comments from 28 individuals on the proposed listing
rule and comments from 24 individuals on the proposed critical habitat
rule. We reviewed all comments we received for substantive issues and
new information. We received some of the same comments on the proposed
listing rule as we did on the proposed critical habitat rule, and we
provide our responses below. Comments unique to the proposed listing
rule and proposed critical habitat rules and our responses subsequently
follow.
Comment 1: Several commenters noted that the Service did not post
SSA peer review comments on https://www.regulations.gov during the
proposed listing rule public comment period and stated that the Service
was not being transparent.
Our response: We included a summary of peer review on Tiehm's
buckwheat SSA in our proposed rule to list Tiehm's buckwheat as
endangered, and the peer review comments and responses are now posted
on our Science Applications website under peer review at https://www.fws.gov/program/science-applications, which also is accessible to
the public.
Comment 2: Several commenters asserted that BLM policies and
guidance (FLPMA, H-1740-2, MS-6840) enforce sensitive species
protective measures for mining operations and that the Service's
assertion that they are not adequate assurances or do not provide
certainty that Ioneer or BLM will actively conserve Tiehm's buckwheat
is incorrect.
Our response: BLM sensitive species are those species requiring
special management consideration to promote their conservation and
reduce the likelihood and need for future listing under the Act (BLM
2008a, pp. 1-48). Tiehm's buckwheat faces several threats, including
herbivory and small population size, that existing regulatory
mechanisms are unlikely to adequately
[[Page 77379]]
address even though BLM has policies that protect sensitive species.
Additionally, BLM's mining regulations at 43 CFR 3809.420 listing
performance standards for mining plans of operation do not take into
account impacts to sensitive species, only adverse impacts to
threatened or endangered species and their habitat, which may be
affected by operations. Existing regulatory mechanisms are described in
section 1.4.2 in the SSA.
Comment 3: One commenter stated that there is no data or locations
to support the conclusion that Tiehm's buckwheat occurs in pure or
monotypic stands and that the Service incorrectly interpreted Morefield
1995 and McClinton et al. 2020.
Our response: We do not use the term ``monotypic stand'' in our SSA
or proposed listing rule. In these documents, we describe community
structure as ``open plant community with low plant cover and stature''
where ``the vegetation varies from pure stands of Tiehm's buckwheat to
sparse associations with a few other low growing herbs and grass
species.'' We reviewed additional information provided during the
public comment period (WestLand 2021, pp. 23-27) and appropriately
incorporated this information in the SSA. What comprises a pure stand
depends on scale. To avoid confusion, we updated the SSA (Service 2022,
p. 17) and removed the phrase ``pure stands'' and replaced it with the
word ``exclusively,'' as in ``the vegetation varies from exclusively
Tiehm's buckwheat plants to spare associations with a few other low
growing herbs and grass species.''
Our interpretation of Morefield 1995 and McClinton et al. 2020
support these characterizations. Morefield 1995 (pp. 30-32) includes
photos of Tiehm's buckwheat with other Tiehm's buckwheat plants in the
background and others show the barren habitat at subpopulations 1 and 2
with a dozen or so Tiehm's buckwheat plants interspersed with its
associates. Likewise, data in McClinton et al. 2020 (p. 22) support the
high density of Tiehm's buckwheat where it occurs.
Comment 4: Two commenters noted that some of the literature cited
in the SSA, including the genetic data that would be useful for
assessing the uniqueness of Tiehm's buckwheat, is not publicly
accessible. They requested that unpublished studies be made publicly
available.
Our response: We have considered the best available scientific and
commercial genetic data for assessing Tiehm's buckwheat in our SSA. We
have provided information, including genetic data, that is not publicly
accessible at https://www.regulations.gov under Docket No. FWS-R8-ES-
2020-0017.
Public Comments on Proposed Listing
Comment 5: One commenter stated that we should have determined that
listing Tiehm's buckwheat was precluded because the economic
development and national security benefits of the proposed mining
project could be considered a ``higher priority action'' than listing
Tiehm's buckwheat as endangered. In addition, efforts being made to
relocate the species to a different habitat where it is not threatened
constitute ``expeditious progress'' in support of a precluded finding.
Our response: In making a determination as to whether a species
meets the Act's definition of an endangered or threatened species,
under section 4(a)(1)(A) of the Act the Secretary is to make that
determination based solely on the basis of the best scientific and
commercial data. A species that we find warrants listing as endangered
or threatened, but for which listing is precluded by higher priority
listing activities, is referred to as a candidate species. The
provision in the Act that allows the Service to make a ``warranted, but
precluded'' finding refers to listing being precluded by pending
proposals to determine whether other species should be listed as
endangered species or a threatened species, not to economic development
or national security benefits. Likewise, ``expeditious progress'' being
made to add or remove species from the Lists of Endangered and
Threatened Wildlife and Plants under the Act refers to the Service's
progress in making listing determinations, a function of workload, not
whether expeditious progress is being made on conservation actions for
the species. Under the Act, the Service may evaluate economic impacts
and impacts to national security only in association with the
designation of critical habitat under section 4(b)(2).
Comment 6: Several commenters were concerned with the scientific
data used in the SSA and proposed listing rule. They requested that the
Service reassess the key characteristics of Tiehm's buckwheat and its
habitat requirements in light of the best available science and correct
perceived erroneous conclusions in the SSA. They also requested that
the Service reassess the threats to the species in light of the best
available science and current plans for mineral development.
Our response: Our Policy on Information Standards under the 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
(www.fws.gov/informationquality/), provide criteria and guidance, and
establish procedures 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 SSAs and listing rules.
Primary or original information sources are those that are closest
to the subject being studied, as opposed to those that cite, comment
on, or build upon primary sources. The Act and our regulations do not
require us to use only peer-reviewed literature, but instead they
require us to use the ``best scientific data available'' in a proposed
listing rule. We use information from many different sources, including
articles in peer-reviewed journals, scientific status surveys and
studies completed by qualified individuals, Master's thesis research
that has been reviewed but not published in a journal, other
unpublished governmental and nongovernmental reports, reports prepared
by industry, personal communication about management or other relevant
topics, conservation plans developed by States and counties, biological
assessments, other unpublished materials, experts' opinions or personal
knowledge, and other sources. We have relied on published articles,
unpublished research, habitat modeling reports, digital data publicly
available on the internet, and the expert opinion of subject biologists
for the SSA and listing rule for Tiehm's buckwheat.
Also, in accordance with our peer review policy published on July
1, 1994 (59 FR 34270), we solicited peer review from knowledgeable
individuals with scientific expertise that included familiarity with
the species, the geographic region in which the species occurs, and
conservation biology principles. Additionally, we requested comments or
information from other concerned governmental agencies, Native American
Tribes, the scientific community, industry, and any other interested
parties concerning the proposed rule. Comments and information we
received helped inform this final rule.
Comment 7: One commenter did not agree with the Service's
conclusion that Tiehm's buckwheat provides an
[[Page 77380]]
unusually high contribution to the arthropod community and stated that
data collected by McClinton et al. 2020 indicate that beetles, wasps,
and flies are important pollinators for Tiehm's buckwheat and there are
no apparent specialist pollinators. The commenter also stated that the
SSA and proposed listing rule should disclose that McClinton et al.
2020, concluded that occupied and unoccupied sites were similarly
abundant and diverse; the presence of Tiehm's buckwheat had no bearing
on the overall abundance and diversity of the arthropod community.
Our response: The native plant species that co-occur with Tiehm's
buckwheat that have average percent cover equal or greater than Tiehm's
buckwheat are shrubs and grasses (as described in WestLand 2021, pp.
23-27). All of these species--shadscale saltbush (Atriplex
confertifolia), black sagebrush (Artemisia nova), Nevada mormon tea
(Ephedra nevadensis), James' galleta (Hilaria jamesii (formerly
Pleuraphis jamesii), and alkali sacaton (Sporobolus airoides)--are wind
pollinated, making Tiehm's buckwheat the dominant insect-pollinated
flowering plant in the plant community in which it occurs. With this
information, we can conclude that Tiehm's buckwheat contributes
substantially to arthropod abundance and diversity because Tiehm's
buckwheat is the dominant insect-pollinated plant species in its
habitat where it occurs. As we described in the SSA, the abundance and
diversity of arthropods in Tiehm's buckwheat subpopulations are
especially high for a plant community dominated by a single native herb
species, as compared to sites with more diverse insect-pollinated plant
species (those that are unoccupied by Tiehm's buckwheat; as described
in McClinton et al. 2020, pp. 9-24). We agree with the commentor, that
at this time, scientific information does not indicate any specialist
pollinators of Tiehm's buckwheat.
Comment 8: We received multiple comments related to the genetics of
Tiehm's buckwheat. Some commenters questioned the validity of the
species, while others supported the species distinction, providing
various interpretations of science in support of their views. Three
commenters stated that the gene tree analysis by Grady (2012, entire)
does not show a distinct grouping of Tiehm's buckwheat separate from
other species of buckwheat, and that Tiehm's buckwheat is a population
of Shockley's buckwheat. One commenter stated that Tiehm's buckwheat is
morphologically distinct from other members of the genus and the
validity of the taxon has never been called into question since it was
first described by Reveal. Another commenter stated that they were not
aware of any plant systematist who has questioned the validity of
Tiehm's buckwheat, and, although Grady (2012, entire) narrowed the
possible close relatives of Tiehm's buckwheat, phylogenetic
relationships vary by gene region and analysis; in no phylogenetic tree
is Tiehm's buckwheat nested within samples from another species.
Our response: We have updated the SSA with some additional genetic
information provided to us during the public comment period. The Act
requires us to use the best scientific and commercial data available in
our listing determinations. We solicited peer review of our evaluation
of the available data, including genetic information, and our peer
reviewers supported our determination that Tiehm's buckwheat is a valid
species.
Within the wild buckwheat (Eriogonum) genus, Tiehm's buckwheat is
placed in the subgenus Eucycla (Morefield 1995, p 8; Reveal 2012, pp.
256-261). Grady (2012, entire) examined the molecular phylogenetic
patterns of narrow endemism relating to edaphic factors in wild
buckwheat. This study indicates that Tiehm's buckwheat is
morphologically distinct, geographically isolated, and ecologically
specialized (Grady 2012, p. 127). Grady (2012, p. 124) found that there
is a clade or group composed of three narrowly endemic species--E.
tiehmii, E. soredium (Frisco buckwheat), and E. holmgrenii (Snake Range
buckwheat)--that shows some similarities with distributions coinciding
with a particular soil substrate, which may point to a lineage of
Eriogonum that is preferentially adapted to specific soil substrates.
Grady (2012, entire) used only a single sample of Tiehm's buckwheat
when conducting his sequencing, not fully allowing the conclusion to be
made that Tiehm's buckwheat is genetically distinct. Consensus trees
constructed from Grady's analyses (2012, entire) also indicate a close
relationship between Tiehm's buckwheat and Shockley's buckwheat
(Eriogonum shockleyi), which is widespread and has a history of
hybridization with other Eriogonum species.
Due to this, a genetic analysis was recently conducted to determine
the genetic uniqueness of Tiehm's buckwheat when compared to cushion
buckwheat (Eriogonum ovalifolium), and money buckwheat (Eriogonum
nummulare), two that co-occur with Tiehm's buckwheat in the project
area and Shockley's buckwheat, the closest genetic relative (per Grady
2012) that is within the geographic vicinity (the Silver Peak Range)
(Davis in litt. 2019; Ioneer 2020a, p. 20). Results from this study
indicate that Tiehm's buckwheat is genetically distinct, although most
similar to Shockley's buckwheat (Figure 3; Davis in litt. 2019).
Therefore, based on the best available science, we consider Tiehm's
buckwheat to be a valid and recognizable taxon, representing a distinct
species.
Comment 9: Two commenters stated their views that the Service
failed to address additional soil studies and relied too much on
McClinton et al. 2020 in the SSA and proposed listing rule. They do not
believe that high lithium and boron concentrations are associated with
the presence of Tiehm's buckwheat. They assert that the presence of
Tiehm's buckwheat is not related to chemical constituent, but rather
other soil characteristics and the species is not a soil specialist.
They also do not agree with our statement that that there are no
unoccupied soils favorable for all three early life history stages
(emergence, survival, and seedling growth) of Tiehm's buckwheat. They
state that statistical analyses provided by McClinton et al. 2020
indicated that occupied and unoccupied sites did not differ in
emergence or survival. They continue that neither the SSA nor the
proposed listing rule disclose, much less discuss, these statistical
findings but rather, the SSA, proposed listing rule, and subsequent
Service statements rely on a correlation between emergence and survival
of seedlings in occupied sites and a lack of this correlation in
unoccupied sites as evidence that only occupied sites provide the soils
required by the species. The commenter also noted that seedlings grown
in the greenhouse that were transplanted to unoccupied site PTS-A in
the field had an 83.1 percent survival rate after 2 months and that, in
the greenhouse study, that site had the third worst plant survival rate
of all the soil samples studied.
Our response: We received additional information related to the
soils of Tiehm's buckwheat (NewFields 2021, entire; WestLand 2021,
entire; USDA NRCS 2022; entire). However, this information was either
received late in our initial proposed rule decision-making process or
during our public comment period. We considered this input to be new
scientific information and have incorporated these references into the
Tiehm's buckwheat SSA and in our decision process where appropriate,
including in the rule portion of this
[[Page 77381]]
document. We still consider this species to meet the definition of a
soil specialist or edaphic endemic because it occurs predominantly on
challenging soil that differs from the surrounding soil matrix and
grows better on soils with these conditions (Mason 1964, entire; Gankin
and Major 1964, entire; Rajakaruna and Bohm 1999, entire; Rajakaruna
2004, entire; Palacio et al. 2007, entire; Escudero et al. 2014,
entire). We provide additional details and citations in our SSA report
(Service, 2022, entire).
As stated in McClinton et al. 2020 and in the SSA, there was
variation in soils among subpopulations and tested, adjacent,
unoccupied sites. For example, McClinton et al. 2020 did find that, on
average, boron levels on Tiehm's buckwheat soils were higher than in
tested, unoccupied sites. Additionally, NewFields 2021 (table 3) shows
that boron is more abundant on Tiehm's buckwheat soils than soils
unoccupied by the species. However, subsequent analysis by NewFields
found boron to be correlated with other variables, particularly clay,
leaving it unclear which variables matter most to Tiehm's buckwheat.
Additionally, maps provided to us displaying the lithology underlying
Tiehm's buckwheat habitat as in Ioneer 2020b (appendix C-1), NewFields
2021 (figures 1, 2a, 2b, and 2c), and WestLand 2021 (figures 1a-3a)
show moderate to high lithium and boron mineralization in rocks
underlying Tiehm's buckwheat habitat, from which the soil the species
inhabits is directly formed via weathering. Chemical soil properties
alone do not determine suitable habitat for any plant species, and
these results do not necessarily imply a physiological dependence on a
particular mineral but are simply characteristics that may be helpful
to describe where the species occurs and the species' habitat needs, to
possibly identify additional suitable habitat for the species.
For McClinton et al. 2020 to find that Tiehm's buckwheat has
specific soil requirements is persuasive, particularly because of the
results of the plant-soil relationship greenhouse study. Simply
measuring emergence in the tested occupied or unoccupied soil does not
determine soil preference, because emergence is different than
survival. As we state in the SSA and described in McClinton et al. 2020
(p. 36), some of the tested unoccupied soils were individually
favorable for emergence, survival, or seedling growth, but there were
no tested unoccupied soils that were favorable for all three life
history stages of Tiehm's buckwheat. This does not mean there are no
unoccupied soils favorable for all three life history stages, just not
among those that were tested.
Unoccupied site PTS-A is within potential dispersal distance from
other subpopulations; however, Tiehm's buckwheat does not occur at this
site. The low survival and biomass observed in seedlings growing in
this soil in ideal greenhouse conditions may indicate a potential
barrier to establishment during early life history stages. Even if
herbivory did not occur and the transplanted seedlings survived, the
lack of an extant subpopulation here indicates that it may be unlikely
for seeds potentially generated by the transplanted seedlings to
recruit and establish a self-sustaining subpopulation.
Comment 10: Several commenters were skeptical that attempts to
relocate or transplant Tiehm's buckwheat would be successful, while
several other commenters believe the species can be transplanted and
translocated, providing various explanations for their views. One
commenter interpreted the greenhouse study to conclude that
transplantation and translocation were likely to be unsuccessful.
Another commenter stated that transplantation of Tiehm's buckwheat has
been significantly more fruitful than initially believed. One commenter
stated that, even with short-term success, it is premature to declare
the transplanting a success because longer term monitoring (several
years to a decade or longer) is needed to determine long-term survival
at a new site. One commenter stated that the SSA and proposed listing
rule should acknowledge that successful translocations of mat-buckwheat
species have been documented. One commenter stated that translocation
of individual plants in lieu of protecting them in their native habitat
is fundamentally at odds with the principles of conservation.
Our response: Translocation of Tiehm's buckwheat would not be being
considered if it was not for the proposed Rhyolite Ridge lithium-boron
project. Translocation should be considered as a mitigation measure and
analyzed as part of BLM's NEPA process and as part of a Section 7
consultation. We conclude that, as a first step, direct seeding and/or
seedling transplantation experiments in unoccupied but potentially
favorable sites should be designed to test if dispersal mechanisms are
restricting the species' range. Direct seeding and/or transplanting are
much lower risk than translocating mature plants as they do not impact
naturally occurring plants and subpopulations. Only if success is
achieved with direct seeding or transplanting of seedlings into
unoccupied sites, should translocation be considered. In either case,
we would not consider these efforts to be successful until an
introduced population can carry on its basic life history processes--
establishment (seeds germinate and seedlings are able to grow into
adults), reproduction (plants are producing viable seed), and dispersal
(seeds are able to produce new seedlings)--such that the probability of
complete extinction due to random environmental events is low.
While it is true that translocations have occurred for other mat-
buckwheat species in Nevada, to our knowledge, monitoring data that
speaks to the success of these efforts does not exist or cannot be
located. Without monitoring data we are unable to conclude if these
translocations represent viable, self-sustaining populations. We also
cannot assume that Tiehm's buckwheat will respond in the same manner to
translocation as other mat buckwheats and therefore are unable to make
assumptions from this anecdotal information on the efficacy of
translocating Tiehm's buckwheat.
Comment 11: We received multiple comments about Ioneer's revised
mine PoO and the need for the Service to update and revise the SSA's
current and future threats analyses on mineral exploration and
development.
Our response: In November 2021, Ioneer met with BLM and the Service
to discuss proposed revisions to their 2020 PoO for the Rhyolite Ridge
Lithium-Boron project (Service 2021b, entire) including adjustments to
the proposed quarry location. On May 27, 2022, Ioneer provided the
Service with a memorandum further describing the proposed revisions to
their 2020 PoO (Ioneer 2022a, entire). On July 18, 2022, Ioneer
submitted their revised PoO to BLM and Ioneer provided the Service with
a copy on August 8, 2022. On August 17, 2022, BLM determined the
revised PoO was complete under 43 CFR 3809.401(b); however, BLM
resource specialists are still in the process of receiving and
reviewing baseline data reports that further explain the details of the
2022 revised PoO. BLM will analyze the environmental impacts of
approving the project under National Environmental Policy Act (NEPA),
and BLM may initiate consultation with the Service under section 7 of
the Act. We have considered and incorporated the 2022 revised PoO,
which includes indirect impacts to individual plants and proposed loss
of 38 percent of critical habitat, into our analysis, and we find that
the threat of mining continues to be of such magnitude that taken in
combination with other threats
[[Page 77382]]
described in this rule, Tiehm's buckwheat is in danger of extinction
throughout all of its range. This final rule reflects the best
available information that existed at the time we made this final
determination.
Comment 12: One commenter stated that the proposed listing rule
wrongly states that trenching in the past (before Ioneer's involvement)
has resulted in the loss of some of Tiehm's buckwheat habitat. The
commenter said that this statement is misleading because the only
mineshaft present is in an area that is not occupied by the species.
They state that there are exploration trenches (pre-Ioneer) within some
of the subpopulations where Tiehm's buckwheat is currently growing in
higher concentrations than in the surrounding area. Thus the commenter
states that some level of disturbance may be a key habitat
characteristic for Tiehm's buckwheat, as has been recognized for other
buckwheat species.
Our response: As described in our SSA, Morefield (1995, p. 15)
documented that subpopulations 1, 2, 3, 4, and 6 were all impacted by
trenches, or mine shafts associated with past mineral exploration, or
by surface disturbance associated with the placement of mining claim
markers (pre-Ioneer) that resulted in a cumulative loss of about 0.10
ac (0.04 ha) of habitat. However, the observed trenches and mine shafts
did not appear to be recent because Tiehm's buckwheat colonized some of
the bottoms of trenches as well as the edges of debris piles (Morefield
1995, p. 15). During the public comment period, we were provided with
observational data (WestLand 2021, p. 29) comparing density in
disturbed (trenches) and undisturbed Tiehm's buckwheat habitat. For
example, WestLand 2021 (p. 29) stated that within subpopulation 1, the
density of Tiehm's buckwheat within trenches is between 4 and 10 times
higher than the density of buckwheat within subpopulation 1. However,
detailed methods and plant estimates between disturbed and undisturbed
habitat were not provided, so we are unable to draw conclusions on
Tiehm's buckwheat density in disturbed and undisturbed habitat, the
level of disturbance the species may be able to withstand, or time
since disturbance the species may be able to re-establish within its
habitat. We welcome further science and monitoring data related to this
topic.
Comment 13: One commenter stated that all comments about potential
future impacts from mineral exploration are speculative at best; they
are not reasonably foreseeable and cannot form the basis for a decision
to list Tiehm's buckwheat. They also stated that the Service is wrong
to assume that mining impacts are likely to occur without taking into
account the ways in which Ioneer's proposed protective measures would
mitigate those threats.
Our response: BLM received a 2020 PoO and a revised 2022 PoO, both
containing detailed mining plans, which the Service considered in
determining the severity and immediacy of threats currently impacting
the species now and those which are likely to occur in the near term.
The Service considered Ioneer's proposed protective measures included
in the 2020 PoO and the 2022 revised PoO. We understand the proposed
project may or may not be permitted by BLM as proposed and therefore it
is uncertain whether or not these mining plans and protection measures
will be fully implemented as described. However, we used the best
available information regarding the impacts of the mine and the threat
of mining in our analysis.
Comment 14: One commenter stated that increased drought may be
causing more herbivory in the region, postulating that placing a large
drinking trough for desert bighorn sheep (Ovis canadensis nelsoni) and
pronghorn (Antilocapra americana) next to the site could have helped
subsidize possible herbivory.
Our response: The Service is unaware of a large drinking trough in
close proximity to occupied habitat. Cervid (deer) eDNA was present in
samples from damaged plants following the herbivory event in 2020.
However, due to eDNA data and morphological evidence of rodent incisor
marks on the roots of damaged plants, we conclude that a diurnal rodent
in the genus Ammospermophilus was largely responsible for the damage to
Tiehm's buckwheat. This conclusion is further described in Section
3.1.2 Herbivory in the SSA.
Comment 15: Several commenters were concerned about climate change
impacts to Tiehm's buckwheat. One commenter stated that emissions from
construction as well as vegetation clearing may create a localized heat
island effect, increasing temperature and decreasing humidity and
thereby adding more stress to Tiehm's buckwheat, and asked how
temperature increases will impact this species. Another commenter
stated that permitting the extraction of lithium for battery
applications would reduce carbon dioxide emissions from vehicles and
electricity generation, indirectly benefitting all species beyond the
population of Tiehm's buckwheat.
Our response: As described in the SSA Section 4.1.3 Climate Change,
the implications of climate change to Tiehm's buckwheat will depend
largely on the interaction of temperature and precipitation. Analyzing
the reduction in carbon dioxide emissions from electric vehicles is
outside the scope of our SSA analysis, which is focused on the threat
of climate change to Tiehm's buckwheat.
Comment 16: One commenter stated that assuming climate change
exacerbates the risk of herbivory, climate change does not pose the
sort of immediate threat to Tiehm's buckwheat that justifies listing
the species as endangered.
Our response: Our listing decision was not solely based on the
threat of climate change. As described in the proposed listing rule, we
found that Tiehm's buckwheat is in danger of extinction due to the
present or threatened destruction, modification, or curtailment of its
habitat or range including habitat loss and degradation due to mineral
exploration and development, road development and OHV use, livestock
grazing, and nonnative, invasive plant species (all Factor A threats);
herbivory (Factor C); and climate change (Factor E). Of these, we
consider mineral exploration and development and herbivory to be the
greatest threats to Tiehm's buckwheat. The existing regulatory
mechanisms (Factor D) are inadequate to protect the species from these
threats to the level that listing is not warranted. We did not identify
threats to the continued existence of Tiehm's buckwheat due to
overutilization for commercial, recreational, scientific, or
educational purposes (Factor B) or disease (Factor C).
Comment 17: One commenter was concerned about the impacts of
trampling on Tiehm's buckwheat. The commenter stated that the
conservation status of the species and ensuing controversy has drawn
numerous parties from across the country to the site, for scientific
purposes, for curiosity, or other purposes. Repeated visitation has led
to clearly delineated social trails and other areas of human impact.
Compaction of soils from human trampling poses a threat to Tiehm's
buckwheat by directly impacting or killing individual plants, providing
a limiting factor on recruitment, increasing erosion, and altering
precipitation and runoff dispersal.
Our response: BLM recently installed fences to restrict access of
OHVs to subpopulations of Tiehm's buckwheat, which may restrict human
visitation as
[[Page 77383]]
well. BLM will monitor the effectiveness of the fences and plans to add
signage to notify the public of the sensitive resources in the area
(BLM 2021j, pp. 4-5). The Service will continue to watch for
anthropogenic impacts to the species including from human visitation.
Comment 18: One commenter stated that conservation benefits for
Tiehm's buckwheat will only occur if Ioneer's project proceeds. They
stated that under the Service's Policy for Evaluation of Conservation
Efforts (PECE), the Service must evaluate the certainty that
conservation efforts that have not yet been implemented will actually
occur. The commenter stated that the Service should be evaluating two
conservation efforts: Ioneer's protection measures that have already
been implemented and a conservation plan that is being developed.
However, the commenter stated that because the terms of the
conservation plan are still under development, it is not appropriate
for the Service to evaluate them under its Policy for Evaluation of
Conservation Efforts (PECE).
Our response: We agree the PECE policy is not applicable at this
time because the conservation plan is still under development as
described in Section 4.2 Conservation Measures and Regulatory
Mechanisms of our SSA. The Service considered Ioneer's proposed
protective measures included in the 2020 PoO and the 2022 revised PoO.
We understand the proposed project may or may not be permitted by BLM
as proposed and therefore it is uncertain whether or not these mining
plans and protection measures will be fully implemented as described.
However, we used the best available information regarding the impacts
of the mine and threat of mining in our analysis. Further, after the
listing of a species, conservation agreements or partnerships to
conserve the species can continue to be developed.
Public Comments on Proposed Critical Habitat
Comment 19: One commenter stated that the Rhyolite Ridge lithium-
boron project is expected to employ 400 to 500 workers during the
construction phase and 320 to 350 during operation. When considering
the life of the mine (30 to 50 years under current technology) and the
direct, indirect, and induced jobs created, the Rhyolite Ridge lithium-
boron project will be transformative for the people, children, and
businesses of Esmeralda County and its communities. They requested
that, in considering a critical habitat designation, the Service
consider the economic and social benefits of the project.
Our response: The Service appreciates the information on the
regional economic significance of the Rhyolite Ridge lithium-boron
project. This issue is examined in our economic analysis. The primary
intended benefit of critical habitat is to support the conservation of
endangered and threatened species, such as Tiehm's buckwheat.
Regardless of whether critical habitat is designated, if the species is
listed as endangered, any section 7 consultation on the mine would
consider the potential for the project to result in jeopardy to the
listed species, and project modifications would be recommended to avoid
jeopardy to Tiehm's buckwheat. With the designation of critical
habitat, future section 7 consultations stemming from the mine project
would additionally consider the potential for the project to result in
adverse modification of its critical habitat. Project modifications
could be recommended to avoid jeopardy and adverse modification. Given
that there is only one critical habitat unit being designated, and it
is occupied, we do not anticipate that a consultation on this project
would generate different project modifications due to the designation
of critical habitat.
Comment 20: One commenter asked if it is logical to extend
protections to the habitat of Tiehm's buckwheat since the species is
already classified as ``proposed endangered.'' They stated that some
may see the proposed critical habitat rule as misguided because the
designation overlaps with a potential area of an open pit lithium mine.
Our response: According to section 4(a)(3)(A) of the Act, the
Secretary of the Interior shall, to the maximum extent prudent and
determinable, concurrently with making a determination that a species
is an endangered species or a threatened species, designate critical
habitat for that species. We have determined that critical habitat is
both prudent and determinable for Tiehm's buckwheat. Therefore, as
required by the Act, we proposed for critical habitat those areas
occupied by the species at the time of listing and that contain the
PBFs essential to the conservation of the species, which may require
special management considerations or protection.
Comment 21: Several commenters thought that the critical habitat
designation should be larger in size to better address the pollinators,
hydrology, invasive species, and mining impacts like dust and air
pollutants. One commenter recommended we include all habitat within a
mile of the Tiehm's buckwheat population. One commenter recommended
that the Service use performance standards to determine effective
buffer widths for the types of impacts that may affect Tiehm's
buckwheat. One commentor recommended considering depth for our critical
habitat boundary due to the proposed Rhyolite Ridge lithium-boron
project.
Our response: Under the Act and its implementing regulations, in
areas occupied at the time of listing, we are required to identify the
PBFs essential to the conservation of the species for which we propose
critical habitat. To determine critical habitat, the Service identified
the physical or biological habitat features needed to provide for the
life history processes of Tiehm's buckwheat. These include but are not
limited to: space for individual and population growth for normal
behavior; food, water, air, light, minerals, or other nutritional or
physiological requirements; cover or shelter; sites for breeding and
rearing offspring; and habitats that are protected from disturbances or
are representative of the historic geographical and ecological
distributions of the species.
Tiehm's buckwheat is dependent on pollinators for reproduction.
Thus, preserving the interaction between the buckwheat and its
pollinators is integral for survival. Through our analysis, we found
that a 1,640 ft (500 m) pollination area was sufficient to support the
maximum foraging distance of primary insect visitors--bees, wasps,
beetles, and flies--that are presumed to be the pollinators of Tiehm's
buckwheat. This 1,640 ft (500 m) area encompasses the PBFs necessary to
the conservation of Tiehm's buckwheat. We do not have information
suggesting that a larger area around plants is necessary to maintain
and support plant-pollinator interactions.
Soil depth was considered in our physical and biological features
for Tiehm's buckwheat. Suitable soils for Tiehm's buckwheat have soil
depths to bedrock that range from 3.5 to 20 in (9 to 51 cm; USDA NRCS
2022, entire). This, among other physical and biological features, is
included in what we have determined to be essential to the conservation
of Tiehm's buckwheat.
The various other elements that commenters sought to address, such
as the threats from invasive species, altered hydrology and mining
impacts like dust and air pollutants are not considered to be physical
or biological features essential to the conservation of Tiehm's
buckwheat. These potential threats would be evaluated in section 7
consultations on projects that may affect the species and its critical
habitat.
[[Page 77384]]
Comment 22: One commenter stated that the Service has designated
critical habitat for only five of eight other buckwheat (Eriogonum)
species. They stated that for only one of those species did the Service
include protection for pollinators; therefore, they found our inclusion
of a PBF for pollination to be inconsistent with our other critical
habitats for buckwheat species. The commenter goes on to state that the
proposed 1,640 ft (500 m) buffer is inconsistent with what the Service
has done for other buckwheat species; Umtanum desert buckwheat
(Eriogonum codium)) had a 98 ft (30 m) buffer and clay-loving buckwheat
(Eriogonum pelinophilum) had a recommended (but not required)
protection of 656-820 ft (200-250 m) for the conservation of native
pollinators. The commenter believes that the failure to provide a
reasoned explanation for these departures renders the proposed
designation of protection for pollinator habitat arbitrary and
capricious.
Our response: We considered the best scientific and commercial data
available regarding Tiehm's buckwheat to evaluate its potential status
and designation of critical habitat under the Act. Science is a
cumulative process, and the body of knowledge is ever-growing. We
recognize that over time as we evaluate each species under the Act,
scientific information is continually evolving based on new studies and
research, and, therefore, to determine critical habitat for Tiehm's
buckwheat, the Service used the best available science to inform the
physical or biological habitat features needed to support the life
history processes of this species. In this instance, the Service used
pollinator studies on pollinator efficiency and flight and foraging
distances of bees, wasps, beetles, and flies, and concluded the 1640-ft
(500-m) pollination area was sufficient to support the maximum foraging
distance of pollinators and insect visitors. This area provides the
essential habitat configuration that contains the PBFs essential to the
conservation of Tiehm's buckwheat and is supported by the best
scientific and commercial data currently available.
Comment 23: One commenter stated that the use of a uniform buffer
creates distortions due to the significant difference in the size and
geographic distribution of various subpopulations of Tiehm's buckwheat.
The commenter recommended the Service tailor the boundaries of the
critical habitat designation so that the total area of the buffer
associated with individual subpopulations is proportional to
subpopulation size and avoids distortions resulting from the separation
between subpopulation 3 and the other subpopulations. The commenter
recommended that the Service reduce the buffer around subpopulation 3
so that the protected area associated with that subpopulation is
proportional to the area protected for other subpopulations.
Our response: The final rule designating critical habitat for
Tiehm's buckwheat has retained a unit boundary that has a symmetrical
shape because we are using the best available nesting, egg-laying, and
foraging information for bee, wasp, beetle, and fly pollinator and
insect visitors of Tiehm's buckwheat to define the critical habitat
boundary. Principles of conservation biology stress the importance of
maintaining the largest areas of contiguous habitat possible with the
least amount of fragmentation. We considered other boundary options for
critical habitat; however, our boundary captures pollinator and insect
visitor overlap among subpopulations as well as other PBFs necessary to
the conservation of Tiehm's buckwheat.
Comment 24: One commenter stated that a much smaller buffer would
adequately protect habitat for the pollinators that serve Tiehm's
buckwheat because bees are relatively infrequent visitors and the
pollinators that dominate visitation to Tiehm's buckwheat flowers are
either likely to fly short distances or are unlikely to be limited by
flight distances. Far more pollinators than solitary bees have been
detected in Tiehm's buckwheat habitat, and it's unclear that the
solitary bee is an appropriate proxy for other pollinators.
Our response: As described in sections 2.3 and 2.4 of our SSA, a
combination of pitfall traps, flower-insect observations, and
pollinator exclusion studies demonstrate that Tiehm's buckwheat
benefits from insect visitors and that the presence of an intact
pollinator community is important for maintaining the species
(McClinton et al. 2020, pp. 9-24). However, not all floral visitors are
pollinators and not all pollinators are equally effective in their
pollinator services (Senapathi et al. 2015, entire; Garratt et al.
2016, entire; Wang et al. 2017, entire). For example, a plant visited
frequently by flies and only occasionally by bees could still be
pollinated primarily by the bees if the bees transfer larger quantities
of pollen per visit. Studies that look at pollen loads (the number of
pollen attached to a pollinator's body) and insect visitor frequency
with pollinator effectiveness or performance (the ability of a floral
visitor to remove and deposit pollen) have not been done for any of the
insect visitors to Tiehm's buckwheat. Therefore, we looked at the best
available science for all insect visitors to Tiehm's buckwheat to
ensure our recommendations capture all of their needs.
Comment 25: One commenter stated that megafauna such as desert
bighorn sheep and pronghorn spend substantial time within Tiehm's
buckwheat habitat as evidenced by the presence of their scat within the
area, implying they provide nutrient cycling services in an otherwise
nutrient-limited highly mineralized soil. The commenter stated that a
1,640 ft (500 m) buffer would not be large enough to maintain the
ecosystem functions and limit disruption of behavior of large ungulates
and recommended that the Service consider a 1 mile (5,280 ft (1,609 m))
buffer.
Our response: We are aware that desert bighorn sheep and pronghorn
spend time within Tiehm's buckwheat habitat; however, we are not aware
of any data on their scat and nutrient cycling services that it may
provide to Tiehm's buckwheat. Therefore, we are not able to identify
the benefit that might be associated with expanding the unit boundary
to accommodate the potential benefit of these species to Tiehm's
buckwheat.
Comment 26: One commenter stated that suitable unoccupied habitat
exists because the Service is erroneous in its understanding of the
habitat needs of Tiehm's buckwheat. They also recommended the Service
revisit its decision regarding the designation of areas outside the
currently occupied locations as critical habitat.
Our response: Under the first prong of the Act's definition of
critical habitat, areas within the geographic area occupied by the
species at the time it is listed are included in a critical habitat
designation if they contain PBFs (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. Under the second prong of the
Act's definition of critical habitat, we can designate critical habitat
in areas outside the geographic 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. We designate critical habitat in
areas outside the geographic area occupied by a species only when a
designation limited to its range would be inadequate to ensure the
conservation of the species. In the case of Tiehm's buckwheat, which is
known from only one geographic area, we are
[[Page 77385]]
designating critical habitat under the first prong of the Act. Other
unoccupied locations may have similar physical and biological features
that may support life history requirements for Tiehm's buckwheat;
however, until direct seeding or transplant studies are conducted
(i.e., to increase the species dispersal) in these locations, we do not
have any scientific evidence to support the theory that Tiehm's
buckwheat has the ability to grow and persist at locations other than
where it currently occurs. Because we determined that occupied areas
are sufficient to conserve the species, no unoccupied areas are
essential for the conservation of the species. Therefore, we did not
identify any unoccupied areas that may qualify as units of critical
habitat and are not designating any areas outside the geographical area
occupied by the species.
Comment 27: Two commenters had concerns related to the plant
community PBFs. One commenter stated that the Service has not
adequately shown the relationship of associated plant species to
Tiehm's buckwheat survivability. Another commenter stated that Tiehm's
buckwheat is found in previously disturbed areas like former
exploration trenches, countering the false impression that the species
requires an area free from anthropogenic disturbance.
Our response: While Tiehm's buckwheat has shown some adaptive
characteristics such as colonizing some disturbed areas within
otherwise occupied subpopulations, the best available science for this
species continues to demonstrate that PBFs and habitat characteristics,
including soil type and plant community associations, are required to
sustain the species' life history processes. See also, our response to
comment 12 related to previously disturbed areas.
Comment 28: One commenter stated that Ioneer intends to collect
data during the 2022 flowering season on flying insects at various
distances from Tiehm's buckwheat subpopulations. They state the Service
should consider this data before finalizing the critical habitat for
Tiehm's buckwheat.
Our response: We welcome additional data to characterize the
pollinator community associated with Tiehm's buckwheat. However, we
cannot delay our decision to allow for the development of additional
data and have used the best available scientific and commercially
available data in our critical habitat designation.
Ioneer collected pollinator data during the 2022 flowering season
and provided the Service an initial findings report on July 5, 2022.
However, this report did not provide sufficient analyses to include in
this final rule with preliminary findings similar to those described in
McClinton et al. 2020.
Comment 29: One commenter stated that BLM-approved seed mixes have
not been proven effective in increasing native plant cover and
preventing dust deposition. They state that empirical evidence from
Rhyolite Ridge reveals that sites disturbed during the exploration
phase of the proposed Rhyolite Ridge lithium-boron project have not
been effectively ``reclaimed'' or restored. Another commenter stated
that Ioneer scraped a large area for water bladders along an existing
road. This area is within the proposed critical habitat and is now
covered in the noxious weed, saltlover. They asked if the proposed
critical habitat will be weeded and seeded and if disturbed areas will
be reclaimed and made weed-free.
Our response: In accordance with BLM's regulations at 43 CFR
3809.420(b)(3), at the earliest feasible time, operators shall reclaim
the area disturbed, except to the extent necessary to preserve evidence
of mineralization. The BLM identifies seed mixes based upon the project
area which are designed to facilitate reclamation. BLM has BMPs for
invasive and nonnative species that focus on the prevention of further
spread and/or establishment of these species (BLM 2008b, pp. 76-77).
BMPs should be considered and applied where applicable to promote
healthy, functioning native plant communities, or to meet regulatory
requirements. BMPs include inventorying weed infestations, prioritizing
treatment areas, minimizing soil disturbance, and cleaning vehicles and
equipment (BLM 2008b, pp. 76-77). However, incorporation or
implementation of BMPs are at the discretion of the authorized BLM
officer.
Determination of Tiehm's Buckwheat 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 endangered species as a species
``in danger of extinction throughout all or a significant portion of
its range,'' and threatened species as a species ``likely to become an
endangered species within the foreseeable future throughout all or a
significant portion of its range.'' The Act requires that we determine
whether a species meets the definition of endangered species or
threatened species because of any of the following factors: (A) The
present or threatened destruction, modification, or curtailment of its
habitat or range; (B) overutilization for commercial, recreational,
scientific, or educational purposes; (C) disease or predation; (D) the
inadequacy of existing regulatory mechanisms; or (E) other natural or
manmade factors affecting its continued existence.
Status Throughout All of Its Range
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 population occurs in an extremely small area, has
specialized habitat requirements, and has limited recruitment and
dispersal. Our analysis revealed that the species is vulnerable to
ongoing and future threats that affect both individual plants and their
habitat.
We have carefully assessed the best scientific and commercial
information available regarding the current and future threats to
Tiehm's buckwheat. We considered the five factors identified in section
4(a)(1) of the Act in determining whether Tiehm's buckwheat meets the
definition of an endangered species (section 3(6)) or threatened
species (section 3(20)). We find that Tiehm's buckwheat is in danger of
extinction due to the present or threatened destruction, modification,
or curtailment of its habitat or range including habitat loss and
degradation due to mineral exploration and development, road
development and OHV use, livestock grazing, and nonnative, invasive
plant species (all Factor A threats); herbivory (Factor C); and climate
change (Factor E). Of these, we consider mineral exploration and
development and herbivory to be the greatest threats to Tiehm's
buckwheat. The existing regulatory mechanisms (Factor D) are inadequate
to protect the species from these threats. We did not identify threats
to the continued existence of Tiehm's buckwheat due to overutilization
for commercial, recreational, scientific, or educational purposes
(Factor B) or disease (Factor C).
In 2020, a detrimental herbivory event caused greater than 60
percent damage or loss of individual Tiehm's buckwheat plants across
the population. The proposed Rhyolite Ridge lithium-boron project (if
permitted by BLM as proposed in the 2020 PoO) would reduce the
remaining Tiehm's buckwheat population by 54 percent, or from 15,757
individuals to roughly 7,305 individuals as we do not know yet
[[Page 77386]]
if translocating plants is feasible. Road development and vehicle
traffic associated with the proposed mine as well as livestock grazing
may further affect the overall health and physiological processes of
individual Tiehm's buckwheat plants and create conditions that further
favor the establishment of nonnative, invasive species within the
species' habitat. Increased temperatures and alteration of
precipitation patterns due to climate change may impact plant
transpiration and soil water recharge needed by Tiehm's buckwheat, as
well as bolstering local rodent populations. High rodent abundance
combined with high temperatures and drought may have contributed to the
herbivore impacts in 2020.
We find that Tiehm's buckwheat is in danger of extinction
throughout all of its range due to the severity and immediacy of
threats currently impacting the species now and those which are likely
to occur in the near term. We have considered and incorporated the 2022
revised PoO, which includes indirect impacts to individual plants and
proposed loss of 38 percent of critical habitat, into our analysis and
we find that the threat of mining continues to be of such a magnitude
that, taken in combination with other threats described in this rule,
Tiehm's buckwheat is in danger of extinction throughout all of its
range.
We find that a threatened species status is not appropriate because
the threats are severe and imminent, and Tiehm's buckwheat is in danger
of extinction now, as opposed to likely to become endangered in the
future. Therefore, on the basis of the best available scientific and
commercial information, we determine that Tiehm's buckwheat is in
danger of extinction throughout all of its range and are listing
Tiehm's buckwheat as an endangered species in accordance with sections
3(6) and 4(a)(1) of the Act.
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 Tiehm's buckwheat is in danger of
extinction throughout all of its range and accordingly did not
undertake an analysis of any significant portion of its range. Because
Tiehm's buckwheat warrants listing as endangered throughout all of its
range, our determination does not conflict with the decision in Center
for Biological Diversity (CBD) v. Everson, 435 F. Supp. 3d 69 (D.D.C.
Jan. 28, 2020) because that decision related to significant portion of
the range analyses for species that warrant listing as threatened, not
endangered, throughout all of their range.
Determination of Status
Our review of the best available scientific and commercial
information indicates that Tiehm's buckwheat meets the Act's definition
of an endangered species. Therefore, we are adding Tiehm's buckwheat to
the List of Endangered and Threatened Plants 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 after publication 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 Reno 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 State of Nevada
could be eligible for Federal funds to implement management actions
that promote the protection or recovery of Tiehm's buckwheat.
Information on our grant programs that are available to aid species
recovery can be found at: https://www.fws.gov/service/financial-assistance.
Please let us know if you are interested in participating in
recovery efforts for Tiehm's buckwheat. 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).
[[Page 77387]]
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.
Regulations 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 a listed 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. Consultation may be informal (the
proposed action may affect, but is not likely to adversely affect
listed species or critical habitat) or formal (the proposed action may
affect, and is likely to adversely affect listed species or critical
habitat). The standard for consultation is ``may affect,'' which means
that a proposed action may pose any effects on listed species or
designated critical habitat.
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. The statute
also contains certain 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 would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a 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; this list is
not comprehensive:
(1) OHV or other vehicle use on existing roads and trails in
compliance with the BLM's Tonopah Resource Management Plan.
(2) Recreational use with minimal ground disturbance (e.g., hiking,
walking).
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) Removing, maliciously damaging or destroying, or collecting of
Tiehm's buckwheat on Federal land; and
(2) Removing, cutting, digging up, or damaging or destroying
Tiehm's buckwheat in knowing violation of any law or regulation of the
State of Nevada 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 Reno
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
II. Critical Habitat Designation
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 provisions of
section 4 of 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 in accordance with the provisions of
section 4 of the Act, upon a determination that such areas are
essential for the conservation of the species.
Although this critical habitat designation was proposed when the
regulatory definition of habitat (85 FR 81411; December 16, 2020) and
the 4(b)(2) exclusion regulations (85 FR 82376; December 18, 2020) were
in place and in effect, those two regulations have been rescinded (87
FR 37757; June 24, 2022 and 87 FR 43433; July 21, 2022) and no longer
apply to any designations of critical habitat. Therefore, for this
final rule designating critical habitat for Tiehm's buckwheat, we apply
the regulations at 50 CFR 424.19 and the 2016 Policy on 4(b)(2)
exclusions (81 FR 7226; February 11, 2016) as described in the 4(b)(2)
recission rule (87 FR 43433; July 21, 2022).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not 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
[[Page 77388]]
implement ``reasonable and prudent alternatives'' to avoid destruction
or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain PBFs (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 PBFs that are essential to the conservation of the
species (such as space, food, cover, and protected habitat). In
identifying those PBFs that occur in specific occupied areas, we focus
on the specific features that are essential to support the life-history
needs of the species, including, but not limited to, water
characteristics, soil type, geological features, vegetation, symbiotic
species, or other features. A feature may be a single habitat
characteristic or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. 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 PBFs 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 an SSA report, listing rule, and other 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, if one has been developed; articles in
peer-reviewed journals; conservation plans developed by States and
counties; scientific status surveys and studies; biological
assessments; other unpublished materials; or experts' opinions or
personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, may continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and (3) the prohibitions found in section 9 of the Act.
Federally funded or permitted projects affecting listed species outside
their designated critical habitat areas may still result in jeopardy
findings in some cases. These protections and conservation tools will
continue to contribute to recovery of the species. Similarly, critical
habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans
(HCPs), or other species conservation planning efforts if new
information available at the time of those planning efforts calls for a
different outcome (i.e., if new information sufficiently justifies the
proposed conservation effort).
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 critical
habitat from within the geographical area occupied by the species at
the time of listing, we consider the PBFs that are essential to the
conservation of the species and that may require special management
considerations or protection.
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, the Service 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: (1) Space for individual and population growth and for
normal behavior; (2) food, water, air, light, minerals, or other
nutritional or physiological requirements; (3) cover or shelter; (4)
sites for breeding, reproduction, or rearing (or development) of
offspring; and (5) habitats that are protected from disturbance or are
representative of the historic geographical and ecological
distributions of a species.
Using the species' habitat, ecology, and life history, which are
summarized below and are described more fully in the proposed listing
rule (86 FR 55775; October 7, 2021) and the SSA report (Service 2022,
entire) that was developed to supplement the proposed listing rule,
which are available at https://www.regulations.gov under Docket No.
FWS-R8-ES-2020-0017, we consider the following habitat characteristics
to derive the specific PBFs essential for the conservation of Tiehm's
buckwheat.
[[Page 77389]]
Habitat Characteristics
Tiehm's buckwheat occurs between 5,906 and 6,234 feet (ft) (1,800
and 1,900 meters (m)) in elevation and on all aspects with slopes
ranging from 0 to 50 degrees (Ioneer 2020a, p. 5; Morefield 1995, p.
11). The species occurs on dry, upland sites, subject only to
occasional saturation by rain and snow, and is not found in association
with free surface or subsurface waters (Morefield 1995, p. 11). Tiehm's
buckwheat is the dominant native herb in the sparsely vegetated
community in which it occurs, resulting in an open plant community with
low plant cover and stature (Morefield 1995, p. 12). Where Tiehm's
buckwheat grows, the vegetation varies from exclusively Tiehm's
buckwheat to sparse associations with a few other low-growing herbs and
grass species, suggesting the species is not shade-tolerant and
requires direct sunlight. The most common associates of Tiehm's
buckwheat with and in the surrounding area are species found in salt
desert shrubland communities such as shadscale saltbush, black
sagebrush, Nevada mormon tea, James' galleta, and alkali sacaton
(Morefield 1995, p. 12; Cedar Creek Associates 2021, p. 1; WestLand
2021, p. 25). The nonnative forb saltlover has recently become
established and is now part of the associated plant community in all
subpopulations of Tiehm's buckwheat (See section 3.1.1 in Service 2022
for further discussion; CBD 2019, pp. 20-21; Ioneer 2020a, pp. 9-10;
Fraga 2021b, pp. 3-4; WestLand 2021, pp. 23-25).
Like most terrestrial plants, Tiehm's buckwheat requires soil for
physical support and as a source of nutrients and water. Tiehm's
buckwheat occurs on soil with a high percentage (70-95 percent) of
surface fragments that is classified as clayey, smectitic, calcareous,
mesic Lithic Torriorthents; clayey-skeletal, smectitic, mesic Typic
Calcicargids; and clayey, smectitic, mesic Lithic Haplargids (United
States Department of Agriculture Natural Resources Conservation Service
(USDA NRCS 2022, entire). The A horizon is thin (0-5.5 in (0-14 cm)); B
horizons are present as Bt (containing illuvial layer of lattice clays)
or Bw (weathered); C horizons are not always present; and soil depths
to bedrock range from 3.5 to 20 in (9 to 51 cm; USDA NRCS 2022,
entire). The soil pH is greater than 7.6 (i.e., alkaline) in all soil
horizons (USDA NRCS 2022, entire). All horizons effervesce to varying
degrees using hydrochloric acid, indicating the presence of calcium
carbonate throughout the soil profile (USDA NRCS 2022, entire). Soil
horizons are characterized by a variety of textures, and include
gravelly clay loam, sand, clay, very gravelly silty clay, and gravelly
loam (USDA NRCS 2022, entire).
Tiehm's buckwheat is distributed on these soils along an outcrop of
lithium clay and boron in exposed former lake beds (Ioneer 2020a, p. 5;
Ioneer 2020b, appendix C-1; Newfields 2021, figure 1; WestLand 2021,
figure 1a-1c). Initial soil sample analyses demonstrate that boron and
carbonates were commonly present at excessive levels and sulfur,
calcium, and potassium were commonly present at high levels (Ioneer
2020a, p. 6). Two further analyses indicate differences in soil
chemistry and texture among soils that are occupied and unoccupied by
Tiehm's buckwheat (McClinton 2020, pp. 29-32; NewFields 2021, pp. 17-
24, table 3). Soils occupied by Tiehm's buckwheat have high clay and
silt content as well as high pH (McClinton et al. 2020, pp. 35, 55;
NewFields 2021, p. 21). McClinton et al. 2020 (p. 35) found significant
differences in soil chemistry between soils occupied and unoccupied by
Tiehm's buckwheat, including potassium, zinc, sulfur, and magnesium,
which were on average lower in occupied soils, and boron, bicarbonate,
and pH, which were, on average, higher, though there was variation
among subpopulations and adjacent, unoccupied sites (McClinton et al.
2020, pp. 35, 53). For example, boron was higher in Tiehm's buckwheat
subpopulations 1, 2, and 3 than in subpopulations 4, 5, 6, 7, and 8
(McClinton et al. 2020, p. 30). NewFields 2021 (p. 18, table 3) found
that active carbon, boron, lithium, magnesium, sodium, and total
kjeldahl nitrogen were significantly different between soils occupied
and unoccupied by Tiehm's buckwheat. However, many soil variables were
correlated to each other in the NewFields 2021 (pp. 10-25) dataset,
leaving it unclear which ones are most important to Tiehm's buckwheat
(i.e., if two variables were highly correlated, one variable was chosen
for subsequent analyses) using general linear models (GLMs). For
example, boron was a soil variable that was significantly different
between occupied and unoccupied soils (NewFields 2021, p. 18, table 3),
but was excluded from the GLM because it was correlated with other
variables that were chosen to be used in the model instead,
particularly clay (NewFields 2021, pp. 10-25).
High rates of endemism are characteristic of plants growing on
unusual soils (Mason 1964, pp. 218-222; Rajakaruna 2004, entire;
Hulshof and Spasojevic 2020, pp. 2-3). Taking all soil components into
consideration, there is a range of soil conditions in which Tiehm's
buckwheat thrives that is different from adjacent, unoccupied soils.
Tiehm's buckwheat meets the definition of a soil specialist or edaphic
endemic because it occurs primarily or exclusively on challenging soils
that differ from the surrounding soil matrix and grows better on soils
with these conditions (Mason 1964, entire; Gankin and Major 1964,
entire; Rajakaruna and Bohm 1999, entire; Rajakaruna 2004, entire;
Palacio et al. 2007, entire; Escudero et al. 2014, entire).
Soil specialists or edaphic endemics are under different selection
regimes compared with non-specialists because they are generally
subjected to stressful physical and chemical properties such as
increased metal concentrations, lower water availability, lower
nutrient availability, higher light levels, and/or poor soil structure
(Palacio et al. 2007, entire; Boisson et al. 2017, entire; Hulshof and
Spasojevic 2020, p. 7). Like many other soil specialists or edaphic
endemics, colonization of unoccupied, but suitable habitat by Tiehm's
buckwheat may be limited by dispersal (Palacio et al. 2007, entire;
Hulshof and Spasojevic 2020, entire; McClinton et al. 2020, p. 37). As
described in Service 2022 (pp. 15-17), Tiehm's buckwheat seeds likely
do not travel far from the parent plant as the species lacks effective
animal dispersers.
Taking all soil components into consideration as well as results of
greenhouse propagation experiments (McClinton et al. 2020, p. 36),
current research suggests that there is a range of soil conditions in
which Tiehm's buckwheat thrives that is different from adjacent
unoccupied soils (Service 2022, pp. 17-21).
Tiehm's buckwheat is a perennial plant species that is not
rhizomatous or otherwise clonal. Therefore, like other buckwheat
species, reproduction in Tiehm's buckwheat is presumed to occur via
sexual means (i.e., seed production and recruitment). As with most
plant species, Tiehm's buckwheat does not require separate sites for
reproduction other than the locations in which parent plants occur and
any area necessary for pollinators and seed dispersal. The primary seed
dispersal agents of Tiehm's buckwheat are probably gravity, wind, and
water (Morefield 1995, p. 14). Upon maturation of the fruit, seeds are
likely to fall to the ground in the immediate vicinity of the parent
plant, becoming lodged in the soil surface (Ioneer 2020a, p. 4). The
number of seeds produced by individual Tiehm's buckwheat plants is
[[Page 77390]]
variable, ranging from 50 to 450 seeds per plant per growing season
(McClinton et al. 2020, p. 22; Service 2022, pp. 15-17). We have no
information on the longevity and viability of Tiehm's buckwheat seed in
the soil seed bank (i.e., natural storage of seeds within the soil of
ecosystems) or what environmental cues are needed to trigger
germination. However, many arid plants possess seed dormancy, enabling
them to delay germination until receiving necessary environmental cues
(Pake and Venable 1996, pp. 1432-1434; Jurado and Flores 2005, entire).
Buckwheat, in general, are sexual reproducers and insects are the
most common pollinators (Gucker and Shaw 2019, pp. 5-6). Buckwheat
flowers can be pollinated by everything from beeflies and closely
related spider predators (the Acroceridea (Cyrtidae)) to specialist
pollinators, while other buckwheat species are also capable of self-
pollination (Moldenke 1976, pp. 20-25; Archibald et al. 2001, p. 612;
Neel and Ellstrand 2003, p. 339). Tiehm's buckwheat may be able to
produce some seed when pollinators are excluded (through wind
pollination or selfing), but open pollination significantly increased
seed production, averaging 7.3 times as many seeds as inflorescences
where pollinators were excluded (McClinton et al. 2020, p. 22). The
increase in seed set when pollinators have open access to flowers
strongly suggests that the presence of an intact pollinator community
is important for maintaining Tiehm's buckwheat, as insects
significantly increased the number of seeds produced by the plants
(McClinton et al. 2020, pp. 9-24). Primary insect visitors (insects
that visit a plant to feed on pollen, nectar, or other flower parts,
but may not necessarily play a role in pollination) to Tiehm's
buckwheat flowers include bees, wasps, beetles, and flies, and have an
abundance and diversity exceptionally high for a plant community
dominated by a native herb species (McClinton et al. 2020, pp. 11-22;
Service 2022, pp. 16-17).
Not all floral visitors are pollinators and not all pollinators are
equally effective in their pollination services (Senapathi et al. 2015,
entire; Garratt et al. 2016, entire; Wang et al. 2017, entire). Bees
(Hymenoptera) are considered the most effective and important
pollinators for many plant species (Garratt et al. 2016, entire;
Ballantyne et al. 2017, entire; Willmer et al. 2017; Khalifa et al.
2021, entire). Wasps (Hymenoptera) are globally widespread, but their
pollination services are not well understood. Adult wasps feed on
nectar from flowers and may inadvertently transfer pollen between
flowers; however, the efficiency of pollen transfer depends on the
wasps' behaviors during and after visits to a flower as well as the
wasps' morphology (e.g., pubescence) and relative size (O'Neill 2019,
pp. 143-151; Brock et al. 2021, pp. 1655-1657). Beetles (Coleoptera)
are abundant flower visitors that feed on pollen, nectar, or floral
structures, eat flower-visiting insects, or mate and lay eggs
(Gottsberger 1977, entire; Mawdsley 2003, entire; Kirmse and Chaboo
2020, entire). Flowers pollinated exclusively by beetles tend to be
large, flat to bowl shaped, and have a strong odor; however, some
beetle visitors have pubescence that trap pollen grains, which are
transported to other flowers while they are feeding, visiting, or
mating (Gottsberger 1977, entire; Mawdsley 2003, entire). Flies
(Diptera) are also often prevalent floral visitors and have frequently
been reported as the most common visitors to flowers from a variety of
plant families (Inouye et al. 2015, table 1; Raguso 2020, entire);
however, flies generally carry and deliver fewer pollen grains than
bees (Kearns 1992, entire; Tepedino et al. 2011, entire; Bischoff et
al. 2013, entire; Ballantyne et al. 2017, entire; Willmer et al. 2017).
This means that a plant visited frequently by flies and only
occasionally by bees could still be pollinated primarily by the bees if
the bees transfer larger quantities of pollen per visit.
Successful transfer of pollen among Tiehm's buckwheat
subpopulations may be inhibited if subpopulations are separated by
distances greater than pollinators can travel and/or a pollinator's
nesting or foraging habitat and behavior is negatively affected (BLM
2012a, p. 2; Cranmer et al. 2012, p. 562; Dorchin et al. 2013, entire).
Flight distances are generally correlated with body size in bees;
larger bees are able to fly farther than smaller bees (Gathmann and
Tscharntke 2002, entire; Greenleaf et al. 2007, pp. 592-594). Some
evidence suggests that larger bees, which are able to fly longer
distances, do not need their habitat to remain contiguous, but it is
more important that the protected habitat is large enough to maintain
floral diversity (BLM 2012a, p. 18). While researchers have reported
long foraging distance for solitary bees, the majority of individuals
remain close to their nest, thus foraging distance tends to be 1,640 ft
(500 m) or less (BLM 2012a, p. 19; Danforth et al. 2019, p. 207;
Antoine and Forrest 2021, p. 152). Nest building is common in some
solitary wasps (such as Sphecidae and Pompilidae, which were observed
at Tiehm's buckwheat subpopulations). The distances between hunting
sites and nests are unknown for wasps, but many wasps probably hunt
close to their nest (within 3 to 66 ft (1 to 20 m)) (O'Neill 2019, pp.
108-111, 152). Most butterflies, flies, and beetles find egg laying and
feeding sites as they move across the landscape. The most common bee
and wasp pollinators have a fixed location for their nest, and thus
their nesting success is dependent on the availability of resources
within their flight range (Xerces 2009, p. 14).
Many insect communities are known to be influenced not only by
local habitat conditions, but also the surrounding landscape condition
(Klein et al. 2004, p. 523; Xerces 2009, pp. 11-26; Tepedino et al.
2011, entire; Dorchin et al. 2013, entire; Inouye et al. 2015, pp. 119-
121). In order for genetic exchange of Tiehm's buckwheat to occur,
insect visitors and pollinators must be able to move freely between
subpopulations. Alternative pollen and nectar sources (other plant
species within the surrounding vegetation) are needed to support
pollinators during times when Tiehm's buckwheat is not flowering.
Conservation strategies that maintain plant-pollinator interactions,
such as maintenance of diverse, herbicide-free nectar resources, would
serve to attract a wide array of insects, including pollinators of
Tiehm's buckwheat (BLM 2012a, pp. 5-6, 19; Cranmer et al. 2012, p. 567;
Senapathi et al. 2015, entire).
Summary of Essential Physical or Biological Features
Based on our current knowledge of the PBFs and habitat
characteristics required to sustain the species' life-history
processes, we determine that the following PBFs are essential to the
conservation of Tiehm's buckwheat:
1. Plant community. A plant community that supports all life stages
of Tiehm's buckwheat includes:
a. Open to sparsely vegetated areas with low native plant cover and
stature.
b. An intact, native vegetation assemblage that can include, but is
not limited to, shadscale saltbush, black sagebrush, Nevada mormon tea,
James' galleta, and alkali sacaton to maintain plant-plant interactions
and ecosystem resiliency and provide the habitats needed by Tiehm's
buckwheat's insect visitors and pollinators.
c. A diversity of native plants whose blooming times overlap to
provide insect visitors and pollinator species with flowers for
foraging throughout the seasons and to provide nesting and egg-laying
sites; appropriate nest materials; and sheltered, undisturbed habitat
for
[[Page 77391]]
hibernation and overwintering of pollinator species and insect
visitors.
2. Pollinators and insect visitors. Sufficient pollinators and
insect visitors, particularly bees, wasps, beetles, and flies, are
present for the species' successful reproduction and seed production.
3. Hydrology. Hydrology that is suitable for Tiehm's buckwheat
consists of dry, open, relatively barren, upland sites subject to
occasional precipitation from rain and/or snow for seed germination.
4. Suitable soils. Soils that are suitable for Tiehm's buckwheat
consist of:
a. Soils with a high percentage (70-95 percent) of surface
fragments that is classified as clayey, smectitic, calcareous, mesic
Lithic Torriorthents; clayey-skeletal, smectitic, mesic Typic
Calcicargids; and clayey, smectitic, mesic Lithic Haplargids.
b. Soils that have a thin ((0-5.5 in (0-14 cm)) A horizon, B
horizons that are present as Bt (containing illuvial layer of lattice
clays) or Bw (weathered), C horizons that are not always present, and
soil depths to bedrock that range from 3.5 to 20 in (9 to 51 cm).
c. Soils characterized by a variety of textures, and include
gravelly clay loam, sand, clay, very gravelly silty clay, and gravelly
loam.
d. Soils with pH greater than 7.6 (i.e., alkaline) in all soil
horizons.
e. Soils that commonly have on average boron and bicarbonates
present at higher levels, and potassium, zinc, sulfur, and magnesium
present at lower levels.
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 area designated as critical habitat may require some
level of management to address the current and future threats to the
PBFs essential to the conservation of Tiehm's buckwheat.
A detailed discussion of threats to Tiehm's buckwheat and its
habitat can be found in the SSA report (Service 2022, pp. 26-42). The
features essential to the conservation of Tiehm's buckwheat (plant
community, pollinators and insect visitors, and suitable hydrology and
soils, required for the persistence of adults as well as successful
reproduction of such individuals and the formation of a seedbank) may
require special management considerations or protection to reduce
threats; these threats are described in the proposed listing rule (86
FR 55775; October 7, 2021). The current range of Tiehm's buckwheat is
subject to anthropogenic threats such as mineral development, road
development and OHV activity, livestock grazing, nonnative and invasive
plant species, and climate change, as well as natural threats such as
herbivory and potential effects associated with small population size
(Service 2022, pp. 26-59).
Management activities that could ameliorate these threats include
(but are not limited to): treatment of nonnative, invasive plant
species; minimization of OHV access and placement of new roads away
from the species and its habitat; regulations or agreements to minimize
the effects of mineral exploration and development where the species
resides; minimization of livestock use or other disturbances that
disturb the soil or seeds; minimization of habitat fragmentation; and
monitoring for herbivory. These activities would help protect the PBFs
for the species by preventing the loss of habitat; protecting the
plant's habitat, pollinator and insect visitors, and soils from
undesirable patterns or levels of disturbance; and facilitating
management for desirable conditions that are necessary for Tiehm's
buckwheat to fulfill its life-history needs.
Tiehm's buckwheat occurs entirely on Federal lands managed by the
BLM. As described in the Tonopah BLM Resource Management Plan, habitat
for all federally listed endangered and threatened species and for all
Nevada BLM sensitive species will be managed to maintain or increase
current species populations. The introduction, reintroduction, or
augmentation of Nevada BLM sensitive species may be allowed in
coordination with the State of Nevada or the Service, if it is deemed
appropriate. Such actions will be considered on a case-by-case basis
and will be subject to applicable procedures (BLM 1997, p. 9).
The Rhyolite Ridge area, where Tiehm's buckwheat occurs, is open to
the operation of the Mining Law, meaning mineral exploration and
extraction operations may occur, subject to compliance with BLM's
regulations at 43 CFR subparts 3715 and 3809 (BLM 1997, p. 23). As a
result, the Service has been coordinating with BLM and Ioneer on both
the 2020 PoO (Ioneer 2020b) and 2022 revised PoO (Ioneer 2022b). In
November 2021, Ioneer met with BLM and the Service to discuss proposed
revisions to their 2020 PoO for the Rhyolite Ridge lithium-boron
project (Service 2021b, entire) including adjustments to the proposed
quarry location. On May 27, 2022, Ioneer provided the Service with a
memorandum further describing the proposed revisions to their 2020 PoO
(Ioneer 2022a, entire). On July 18, 2022, Ioneer submitted their
revised PoO to BLM and provided the Service with a copy on August 8,
2022. On August 17, 2022, BLM determined the revised PoO was complete
under 43 CFR 3809.401(b); however, BLM resource specialists are still
in the process of receiving and reviewing baseline data reports that
further explain the details of the 2022 revised PoO. BLM will analyze
the environmental impacts of approving the project under National
Environmental Policy Act (NEPA), and BLM may initiate consultation with
the Service under section 7 of the Act.
The 2022 revised PoO includes modifications such as relocating the
quarry to avoid individual Tiehm's buckwheat plants and implementing
13-127 ft (4-39 m) buffers with fencing around each subpopulation
(Ioneer 2022b, p. 14 and Appendix J). An explosives storage area is
proposed adjacent to subpopulation 1 (Ioneer 2022b, Figure 4). To the
east, subpopulations 3, 4, 5, 6, and 7 would be concerningly close to a
960-ft (293 m) deep open-pit quarry and when mining is complete, a
terminal quarry lake (Ioneer 2022b, p. 24, 74). In addition, over-
burden storage facilities are proposed on the west side of
subpopulations 3, 4, 5, 6, and 7 (Ioneer 2022b, p. 25). The combination
of the quarry development and over-burden storage facilities are
projected to disturb and remove up to 38 percent of critical habitat
for this species, impacting pollinator populations, altering hydrology,
removing soil, and risking subsidence.
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. The occupied areas are sufficient
for the conservation of the species because those are the only areas
Tiehm's buckwheat has been known to
[[Page 77392]]
exist, and the occupied areas provide all of the physical and
biological features that are necessary to support the life history
requirements for Tiehm's buckwheat. Other unoccupied locations may have
similar physical and biological features that may support life history
requirements for Tiehm's buckwheat; however, until direct seeding or
transplant studies are conducted (i.e., to increase the species
dispersal) in these locations, we do not have any scientific evidence
to support the theory that Tiehm's buckwheat has the ability to grow
and persist at locations other than where it currently occurs. Because
we determined that occupied areas are sufficient to conserve the
species, no unoccupied areas are essential for the conservation of the
species. Therefore, we are not designating any areas outside the
geographical area occupied by the species.
We are designating one occupied critical habitat unit for Tiehm's
buckwheat. The one unit comprises approximately 910 ac (368 ha) in
Nevada and is completely on lands under Federal (BLM) land ownership.
The unit was determined using location information for Tiehm's
buckwheat from E.M. Strategies and NDNH (Kuyper 2019, entire; Morefield
2010, entire; Morefield 2008, entire). These locations were classified
into one discrete population, with eight subpopulations, based on
mapping standards devised by NatureServe and its network of Natural
Heritage Programs (NatureServe 2004, entire). This unit includes the
physical footprint of where the plants currently occur, as well as
their immediate surroundings out to 1,640 ft (500 m) in every direction
from the periphery of each subpopulation. This area of surrounding
habitat contains components of the PBFs (i.e., the pollinator community
and its requisite native vegetative assembly) necessary to support the
life-history needs of Tiehm's buckwheat (Gathmann and Tscharntke 2002,
entire; Greenleaf et al. 2007, pp. 592-594; Xerces 2009, p. 14; p. 207;
BLM 2012a, p. 19; Danforth et al. 2019, p. 207; O'Neill 2019, pp. 108-
111, 152; Antoine and Forrest 2021, p. 152). This essential habitat
configuration was based on the best available nesting, egg-laying, and
foraging information for the bee, wasp, beetle, and fly pollinators and
insect visitors of Tiehm's buckwheat (McClinton et al. 2020, p. 18), as
most insect communities are known to be influenced not only by local
habitat conditions, but also the surrounding landscape conditions
(Klein et al. 2004, p. 523; Xerces 2009, pp. 11-26; Tepedino et al.
2011, entire; Dorchin et al. 2013, entire; Inouye et al. 2015, pp. 119-
121).
The critical habitat designation is defined by the map, 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. The coordinates or plot points or both
on which the map is based are available to the public on https://www.regulations.gov at Docket No. FWS-R8-ES-2020-0017 and at the field
office responsible for the designation (see FOR FURTHER INFORMATION
CONTACT above).
Final Critical Habitat Designation
We designate one unit as critical habitat for Tiehm's buckwheat.
The unit is considered occupied at the time of listing. The critical
habitat area, the Rhyolite Ridge area of the Silver Peak Range in
Esmeralda County, Nevada, that we describe below constitutes our
current best assessment of areas that meet the definition of critical
habitat for Tiehm's buckwheat. Table 2 (below) shows the final critical
habitat unit and its approximate area.
Table 2--Critical Habitat Unit for Tiehm's Buckwheat (Eriogonum Tiehmii)
[Area estimates reflect all lands within the critical habitat boundary]
----------------------------------------------------------------------------------------------------------------
Federally owned land * Total area
Unit name ---------------------------------------------------------------
Acres Hectares Acres Hectares
----------------------------------------------------------------------------------------------------------------
Rhyolite Ridge Unit............................. 910 368 910 368
----------------------------------------------------------------------------------------------------------------
* These lands are Federal lands managed by the Bureau of Land Management (BLM).
We present a brief description of the critical habitat unit, and
reasons why it meets the definition of critical habitat for Tiehm's
buckwheat, below.
Rhyolite Ridge Unit
The Rhyolite Ridge Unit consists of approximately 910 ac (368 ha)
of Federal land. This unit is located approximately 13 miles (21
kilometers) west of Silver Peak in Esmeralda County, Nevada. Cave
Springs Road, a rural, county unpaved road, bisects the unit. The roads
and other manmade structures existing as of the effective date of the
final rule are excluded from the designation of critical habitat. The
entire unit is on Federal lands managed by the BLM. This unit is
currently occupied and contains the single population comprised of
eight subpopulations of Tiehm's buckwheat and all of the habitat that
is occupied by the species across its range. This unit contains all of
the PBFs essential to the conservation of the species, including a
plant community that supports all life stages of Tiehm's buckwheat;
sufficient pollinators and insect visitors, particularly bees, wasps,
beetles, and flies; hydrology suitable for Tiehm's buckwheat that
consists of dry, open, relatively barren, upland sites subject to
occasional precipitation from rain and/or snow; and soils that are
suitable for Tiehm's buckwheat. Special management considerations or
protection may be required to address mineral development, including
the 2020 and 2022 revised mining PoOs, road development and OHV
activity, livestock grazing, nonnative invasive plant species, and
herbivory (see Special Management Considerations or Protection).
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
[[Page 77393]]
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 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.
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,
subsequent to the previous consultation, when: (1) the amount or extent
of taking specified in the incidental take statement is exceeded; (2)
new information reveals effects of the action that may affect listed
species or critical habitat in a manner or to an extent not previously
considered; (3) the identified action is subsequently modified in a
manner that causes an effect to the listed species or critical habitat
that was not considered in the biological opinion; or (4) 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 ``Destruction or 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 PBFs 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 Service may, during a consultation under
section 7(a)(2) of the Act, consider likely to destroy or adversely
modify the critical habitat of Tiehm's buckwheat include, but are not
limited to, actions that are likely to cause large-scale habitat
impacts, adversely affecting the PBFs at a scale and magnitude such
that the designated critical habitat would no longer be able to provide
for the conservation of the species. Examples include removing
pollinator habitat and corridors for pollinator movement and seed
dispersal; significantly disrupting the native vegetative assemblage,
seed bank, or soil composition and structure; or significantly
fragmenting the landscape and decreasing the resiliency and
representation of the species throughout its range (Service 2021c, p.
14). For such activities, the Service would likely require reasonable
and prudent alternatives to ensure the implementation of project-
specific conservation measures designed to reduce the scale and
magnitude of these habitat impacts.
Exemptions
Application of Section 4(a)(3)(B)(i) 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 designated. No DoD lands of any kind are
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 designated critical habitat based on
economic impacts, impacts on national security, or any other relevant
impacts. Exclusion decisions are governed by the regulations at 50 CFR
424.19 and the Policy Regarding Implementation of Section 4(b)(2) of
the Endangered Species Act (hereafter, the ``2016 Policy''; 81 FR 7226,
February 11, 2016), both of which were developed jointly with the
National Marine Fisheries Service (NMFS). We also refer to a 2008
Department of the Interior Solicitor's opinion entitled ``The
Secretary's Authority to Exclude Areas from a Critical Habitat
Designation under
[[Page 77394]]
Section 4(b)(2) of the Endangered Species Act'' (M-37016). We explain
each decision to exclude areas, as well as decisions not to exclude, to
demonstrate that the decision is reasonable. In considering whether to
exclude a particular area from the designation, we identify the
benefits of including the area in the designation, identify the
benefits of excluding the area from the designation, and evaluate
whether the benefits of exclusion outweigh the benefits of inclusion.
If the analysis indicates that the benefits of exclusion outweigh the
benefits of inclusion, the Secretary may exercise discretion to exclude
the area only if such exclusion would not result in the extinction of
the species. In making the determination to exclude a particular area,
the statute on its face, as well as the legislative history, are clear
that the Secretary has broad discretion regarding which factor(s) to
use and how much weight to give to any factor. We describe below the
process that we undertook for taking into consideration each category
of impacts and our analyses of the relevant impacts. In this final
rule, we have not considered any areas for exclusion from critical
habitat.
Consideration of 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. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate the impacts that a specific critical habitat
designation may have on restricting or modifying specific land uses or
activities for the benefit of the species and its habitat within the
areas proposed. We then identify which conservation efforts may be the
result of the species being listed under the Act versus those
attributed solely to the designation of critical habitat for this
particular species. The probable economic impact of a proposed critical
habitat designation is analyzed by comparing scenarios both ``with
critical habitat'' and ``without critical habitat.''
The ``without critical habitat'' scenario represents the baseline
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource
users potentially affected by the designation of critical habitat
(e.g., under the Federal listing as well as other Federal, State, and
local regulations). Therefore, the baseline represents the costs of all
efforts attributable to the listing of the species under the Act (i.e.,
conservation of the species and its habitat incurred regardless of
whether critical habitat is designated). The ``with critical habitat''
scenario describes the incremental impacts associated specifically with
the designation of critical habitat for the species. The incremental
conservation efforts and associated impacts would not be expected
without the designation of critical habitat for the species. In other
words, the incremental costs are those attributable solely to the
designation of critical habitat, above and beyond the baseline costs.
These are the costs we use when evaluating the benefits of inclusion
and exclusion of particular areas from the final designation of
critical habitat should we choose to conduct a discretionary section
4(b)(2) exclusion analysis.
For this particular designation, we developed an incremental
effects memorandum (IEM; Service 2021c, entire) considering the
probable incremental economic impacts that may result from the proposed
designation of critical habitat. The information contained in our IEM
was then used to develop a screening analysis of the probable effects
of the designation of critical habitat for Tiehm's buckwheat
(Industrial Economics Inc. (IEc) 2021, entire).
We began by conducting a screening analysis of the proposed
designation of critical habitat in order to focus our analysis on the
key factors that are likely to result in incremental economic impacts.
The purpose of the screening analysis is to filter out particular
geographic areas of critical habitat that are already subject to such
protections and are, therefore, unlikely to incur incremental economic
impacts. In particular, the screening analysis considers baseline costs
(i.e., absent critical habitat designation) and includes any probable
incremental economic impacts where land and water use may already be
subject to conservation plans, land management plans, best management
practices, or regulations that protect the habitat area as a result of
the Federal listing status of the species. Ultimately, the screening
analysis allows us to focus our analysis on evaluating the specific
areas or sectors that may incur probable incremental economic impacts
as a result of the designation. The presence of the listed species in
occupied areas of critical habitat means that any destruction or
adverse modification of those areas will also jeopardize the continued
existence of the species. Therefore, designating occupied areas as
critical habitat typically causes little if any incremental impacts
above and beyond the impacts of listing the species. Therefore, the
screening analysis focuses on areas of unoccupied critical habitat. If
the proposed critical habitat designation contains any unoccupied
units, the screening analysis assesses whether those units require
additional management or conservation efforts that may incur
incremental economic impacts. This screening analysis combined with the
information contained in our IEM constitute what we consider to be our
final economic analysis of the critical habitat designation for Tiehm's
buckwheat; our economic analysis is summarized in the narrative below.
Executive Orders 12866 and 13563 direct Federal agencies to assess
the costs and benefits of available regulatory alternatives in
quantitative (to the extent feasible) and qualitative terms. Consistent
with the Executive Orders' regulatory analysis requirements, our
effects analysis under the Act may take into consideration impacts to
both directly and indirectly affected entities, where practicable and
reasonable. If sufficient data are available, we assess to the extent
practicable the probable impacts to both directly and indirectly
affected entities. As part of our screening analysis, we considered the
types of economic activities that are likely to occur within the areas
likely affected by the critical habitat designation. In our evaluation
of the probable incremental economic impacts that may result from the
proposed designation of critical habitat for Tiehm's buckwheat, first
we identified, in the IEM dated July 21, 2021 (Service 2021c, entire),
probable incremental economic impacts associated with the following
categories of activities: mining and minerals exploration, livestock
grazing, and recreation. We considered each industry or category
individually. Additionally, we considered whether their activities have
any Federal involvement. Critical habitat designation generally will
not affect activities that do not have any Federal involvement; under
the Act, designation of critical habitat only affects activities
conducted, funded, permitted, or authorized by Federal agencies.
Because the species is being listed as endangered, in areas where
Tiehm's buckwheat is present, Federal agencies need to consult with the
Service on any activity that they authorize, fund, or carry out that
may affect the species or its critical habitat.
In our IEM, we attempted to clarify the distinction between the
effects that would result from the species being listed and those
attributable to the critical habitat designation (i.e.,
[[Page 77395]]
difference between the jeopardy and adverse modification standards) for
Tiehm's buckwheat critical habitat. The following specific
circumstances help to inform our evaluation: (1) The essential PBFs
identified for critical habitat are the most important features
essential for the life-history needs of the species, and (2) any
actions that would result in sufficient adverse effect to the essential
PBFs to result in destruction or adverse modification of the critical
habitat would also likely constitute jeopardy to Tiehm's buckwheat. The
IEM outlines our rationale concerning this limited distinction between
baseline conservation efforts and incremental impacts of the
designation of critical habitat for Tiehm's buckwheat. This evaluation
of the incremental effects has been used as the basis to evaluate the
probable incremental economic impacts of this final designation of
critical habitat.
The final critical habitat designation for Tiehm's buckwheat
includes one critical habitat unit (Rhyolite Ridge Unit) totaling
approximately 910 ac (368 ha), which was occupied by Tiehm's buckwheat
at the time of proposed listing and is currently occupied now at the
time of final listing. Any actions that may affect the species would
also reach the ``may affect'' threshold for critical habitat, and it is
unlikely that any additional conservation efforts would be recommended
to address the adverse modification standard over and above those
recommended as necessary to avoid jeopardizing the continued existence
of Tiehm's buckwheat. Therefore, the final critical habitat designation
is expected to result in only administrative costs. While additional
analysis will require time and resources by both the Federal action
agency and the Service, it is believed that, in most circumstances,
these costs would be relatively minor and administrative in nature.
This final critical habitat designation is expected to result in
six consultations in 10 years (IEc 2021, p. 3). This additional
administrative effort includes a projected estimate of five formal
consultations and one programmatic consultation, which is aggregated
into a given year to give a total annual incremental cost for the
purpose of determining whether the rule is economically significant
under Executive Order 12866 (IEc 2021, exhibit 3, p. 12). The analysis
forecasts no incremental costs associated with project modifications
that would involve additional conservation efforts for Tiehm's
buckwheat. The projected incremental costs for each programmatic,
formal, informal, and technical assistance effort are estimated to be
approximately $5,300 (formal consultation), $2,600 (informal
consultation), $9,800 (programmatic consultation), and $420 (technical
assistance). Analyzing the potential for adverse modification of the
species' critical habitat during section 7 consultation will likely
result in a total annual incremental cost of less than approximately
$37,000 (2021 dollars) in a given year for Tiehm's buckwheat (IEc 2021,
exhibits 4 and 5, p. 13); therefore, the annual administrative burden
is extremely unlikely to generate costs exceeding $100 million in a
single year (i.e., the threshold for an economically significant rule
under Executive Order 12866).
We solicited data and comments from the public on the draft
economic analysis discussed above, as well as on all aspects of the
proposed critical habitat rule (87 FR 6101, February 3, 2022) and our
required determinations. In developing this final designation, we
considered the information presented in the draft economic analysis and
any additional information on economic impacts we received during the
public comment period to determine whether any specific areas should be
excluded from the final critical habitat designation under the
authority of section 4(b)(2) and our implementing regulations at 50 CFR
424.19 and the 2016 Policy.
During the public comment period, we did not receive credible
information regarding the existence of a meaningful economic or other
relevant impact supporting a benefit of exclusion; therefore, we did
not conduct an exclusion analysis for the relevant area or areas. In
developing the proposed critical habitat we have the discretion to
evaluate any other particular areas for possible exclusion.
Furthermore, when we conducted an exclusion analysis based on impacts
identified by experts in, or sources with firsthand knowledge about,
impacts that are outside the scope of the Service's expertise, we gave
weight to those impacts consistent with the expert or firsthand
information unless we had rebutting information. We may exclude an area
from critical habitat if we determine that the benefits of excluding
the area outweigh the benefits of including the area, provided the
exclusion will not result in the extinction of this species. We
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 Tiehm's buckwheat based
on economic impacts.
Consideration of National Security Impacts
Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or
areas that pose potential national-security concerns (e.g., a DoD
installation that is in the process of revising its INRMP for a newly
listed or proposed listed species or a species previously not covered).
If a particular area is not covered under section 4(a)(3)(B)(i), then
national-security or homeland-security concerns are not a factor in the
process of determining what areas meet the definition of ``critical
habitat.'' However, the Service must still consider impacts on national
security, including homeland security, on those lands or areas not
covered by section 4(a)(3)(B)(i), because section 4(b)(2) requires the
Service to consider those impacts whenever it designates critical
habitat. Accordingly, if DoD, Department of Homeland Security (DHS), or
another Federal agency has requested exclusion based on an assertion of
national-security or homeland-security concerns, or we have otherwise
identified national-security or homeland-security impacts from
designating particular areas as critical habitat, we generally have
reason to consider excluding those areas.
However, we cannot automatically exclude requested areas. When DoD,
DHS, or another Federal agency requests exclusion from critical habitat
on the basis of national-security or homeland-security impacts, we must
conduct an exclusion analysis if the Federal requester provides
credible information, including a reasonably specific justification of
an incremental impact on national security that would result from the
designation of that specific area as critical habitat. That
justification could include demonstration of probable impacts, such as
impacts to ongoing border-security patrols and surveillance activities,
or a delay in training or facility construction, as a result of
compliance with section 7(a)(2) of the Act. If the agency requesting
the exclusion does not provide us with a reasonably specific
justification, we will contact the agency to recommend that it provide
a specific justification or clarification of its concerns relative to
the probable incremental impact that could result from the designation.
If we conduct an exclusion analysis because the agency provides a
reasonably specific justification or because we decide to exercise the
discretion to conduct an exclusion analysis, we will defer to the
expert judgment of DoD, DHS, or another Federal agency as to: (1)
Whether activities on its lands or
[[Page 77396]]
waters, or its activities on other lands or waters, have national-
security or homeland-security implications; (2) the importance of those
implications; and (3) the degree to which the cited implications would
be adversely affected in the absence of an exclusion. In that
circumstance, in conducting a discretionary section 4(b)(2) exclusion
analysis, we will give great weight to national-security and homeland-
security concerns in analyzing the benefits of exclusion.
Under section 4(b)(2) of the Act, we also consider whether a
national-security or homeland-security impact might exist on lands not
owned or managed by DoD or DHS. In preparing this rule, we have
determined that the lands within the designation of critical habitat
for Tiehm's buckwheat are not owned or managed by DoD or DHS.
Therefore, we anticipate no impact on national security or homeland
security. During the public comment period we did not receive credible
information that we determine indicates that there is a potential for
impacts on national security or homeland security from designating
particular areas as critical habitat; therefore, as part of developing
the final designation of critical habitat, we did not conduct a
discretionary exclusion analysis to determine whether to exclude those
areas under authority of section 4(b)(2) and our implementing
regulations at 50 CFR 424.19 and the 2016 Policy.
Consideration of 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 discussed above. Other relevant impacts may include, but are
not limited to, impacts to Tribes, States, local governments, public
health and safety, community interests, the environment (such as
increased risk of wildfire, or pest and invasive species management),
Federal lands, and conservation plans, agreements, or partnerships. To
identify other relevant impacts that may affect the exclusion analysis,
we consider a number of factors, including whether there are permitted
conservation plans covering the species in the area--such as HCPs, safe
harbor agreements, or candidate conservation agreements with
assurances--or whether there are non-permitted conservation agreements
and partnerships that may be impaired by designation of, or exclusion
from, critical habitat. In addition, we look at whether Tribal
conservation plans or partnerships, Tribal resources, or government-to-
government relationships of the United States with Tribal entities may
be affected by the designation. We also consider any State, local,
social, or other impacts that might occur because of the designation.
When analyzing other relevant impacts of including a particular
area in a designation of critical habitat, we weigh those impacts
relative to the conservation value of the particular area. To determine
the conservation value of designating a particular area, we consider a
number of factors, including, but not limited to, the additional
regulatory benefits that the 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.
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.
In the case of Tiehm's buckwheat, the benefits of critical habitat
include public awareness of the presence of Tiehm's buckwheat and the
importance of habitat protection, and, where a Federal nexus exists,
increased habitat protection for Tiehm's buckwheat due to protection
from destruction or adverse modification of critical habitat.
Conservation Plans
We evaluate the existence of a conservation plan when considering
the benefits of inclusion. We consider a variety of factors, including,
but not limited to, whether the plan is finalized; how it provides for
the conservation of the essential PBFs; whether there is a reasonable
expectation that the conservation management strategies and actions
contained in a management plan will be implemented into the future;
whether the conservation strategies in the plan are likely to be
effective; and whether the plan contains a monitoring program or
adaptive management to ensure that the conservation measures are
effective and can be adapted in the future in response to new
information.
Private or Other Non-Federal Conservation Plans or Agreements and
Partnerships
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, sometimes through the permitting process under section 10
of the Act.
When we undertake a discretionary section 4(b)(2) analysis, 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. There are no HCP's for the area in the
final critical habitat designation for Tiehm's buckwheat.
Ioneer USA Corporation (Ioneer)
As part of the proposed Rhyolite Ridge lithium-boron project,
Ioneer USA Corporation (Ioneer) is developing a conservation strategy
for Tiehm's buckwheat to protect and preserve the continued viability
of the species on a long-term basis. Currently, this strategy is in the
early stages of development (Ioneer 2020c, entire; Barrett, Service,
pers. comm. 2021; Tress, WestLand, pers. comm. 2021a; Tress, WestLand,
pers. comm. 2021b; Tress, WestLand, pers. comm. 2021c; Barrett,
Service, pers. comm. 2022).
Ioneer has also implemented or proposed various protection measures
for Tiehm's buckwheat as part of the 2020 PoO for the Rhyolite Ridge
lithium-boron project. Ioneer funded the development of a habitat
suitability model to identify additional potential habitat for Tiehm's
buckwheat through field surveys (Ioneer 2020a, p. 12). In addition, a
demographic monitoring program was initiated in 2019 by Ioneer, to
detect and document trends in population size, acres inhabited, size
class distribution, and cover with permanent monitoring transects
established in subpopulations 1, 2, 3, 4, and 6 (Ioneer 2020a, p. 16).
Ioneer also funded collection of Tiehm's buckwheat seed in 2019 and
plans to collect seeds
[[Page 77397]]
in 2022 (Ioneer 2020a, pp. 13-14). Some of this seed was used by the
University of Nevada, Reno, for a propagation trial and transplant
study (Ioneer 2020a, p. 14). The remainder of this seed is in long-term
storage at Rae Selling Berry Seed Bank at Portland State University
(Ioneer 2020a, p. 13). As part of the 2020 PoO, Ioneer also plans to
avoid subpopulations 1, 2, 3, and 8 (Ioneer 2020a, p. 11), fence and
place signage around subpopulations 1 and 2 (Ioneer 2020a, p. 11), and
remove and salvage all remaining plants in subpopulations 4, 5, 6, and
7 and translocate them to another location (Ioneer 2020a, p. 15).
However, in July 2022, Ioneer submitted a revised mining PoO and the
proposed project may or may not be permitted by BLM as proposed; thus,
the project as proposed, and these protection measures, may or may not
be fully implemented and therefore, we did not exclude lands based on
Ioneer's draft conservation strategy.
Tribal Lands
Several Executive Orders, Secretarial Orders, and policies concern
working with Tribes. These guidance documents generally confirm our
trust responsibilities to Tribes, recognize that Tribes have sovereign
authority to control Tribal lands, emphasize the importance of
developing partnerships with Tribal governments, and direct the Service
to consult with Tribes on a government-to-government basis. In
addition, we look at the existence of Tribal conservation plans and
partnerships. In preparing this proposal, we have determined that the
final designation of critical habitat does not include any Tribal lands
or trust resources. We anticipate no impact on Tribal lands or
partnerships from this final designation of critical habitat.
We may also consider areas not identified for inclusion or
exclusion from the final critical habitat designation based on
information we may receive during the public comment period. As noted
above, we have requested that the entities seeking inclusion or
exclusion of areas provide credible information regarding the existence
of a meaningful economic or other relevant impact supporting a benefit
of exclusion for that particular area (see 50 CFR 424.19). We have
considered the information we received through the public comment
period regarding other relevant impacts of the proposed designation and
have determined that we are not excluding any areas from critical
habitat. In preparing this final rule, we have determined that there
are currently no HCPs or other management plans for Tiehm's buckwheat,
and the designation does not include any Tribal lands or trust
resources. We anticipate no impact on Tribal lands, partnerships, or
HCPs from this final critical habitat designation. We did not receive
any additional information during the public comment period for the
proposed rule regarding other relevant impacts to 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. Accordingly, the Secretary is not exercising her discretion to
exclude any areas from this designation based on other relevant
impacts.
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 Executive Order
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. Executive Order 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
final 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 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine whether potential
economic impacts to these small entities are significant, we considered
the types of activities that might trigger regulatory impacts under
this designation as well as types of project modifications that may
result. In general, the term ``significant economic impact'' is meant
to apply to a typical small business firm's business operations.
Under the RFA, as amended, and as understood in light of recent
court decisions, Federal agencies are required to evaluate the
potential incremental impacts of rulemaking on those entities directly
regulated by the rulemaking itself; in other words, the RFA does not
require agencies to evaluate the potential impacts to indirectly
regulated entities. The regulatory mechanism through which critical
habitat protections are realized is section 7 of the Act, which
requires Federal agencies, in consultation with the Service, to ensure
that any action authorized, funded, or carried out by the agency is not
likely to destroy or adversely modify critical habitat. Therefore,
under section 7, only Federal action agencies are directly subject to
the specific regulatory requirement (avoiding destruction and adverse
modification) imposed by critical habitat designation. Consequently, it
is our position that only Federal action agencies would be directly
regulated with this final critical habitat designation. The RFA does
not require evaluation of the potential impacts to
[[Page 77398]]
entities not directly regulated. Moreover, Federal agencies are not
small entities. Therefore, because no small entities would be directly
regulated by this rulemaking, the Service certifies that this final
critical habitat designation for Tiehm's buckwheat will not have a
significant economic impact on a substantial number of small entities.
In summary, we have considered whether the final designation would
result in a significant economic impact on a substantial number of
small entities. For the above reasons and based on currently available
information, we certify that this final critical habitat designation
for Tiehm's buckwheat will not have a significant economic impact on a
substantial number of small business entities. Therefore, a final
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. There are no operation, management, and maintenance
activities of utility facilities (e.g., hydropower facilities,
powerlines, pipelines) that we are aware of or that have been known to
occur within the range of Tiehm's buckwheat and its final critical
habitat unit. If proposed in the future, these are activities that the
Service consults on with Federal agencies (and their respective
permittees, including utility companies) under section 7 of the Act. As
discussed in the EA, the costs associated with consultations related to
occupied critical habitat would be largely administrative in nature and
are not anticipated to reach $100 million in any given year based on
the anticipated annual number of consultations and associated
consultation costs, which are not expected to exceed $37,000 per year
(2021 dollars) (IEc 2021, p. 13). In our economic analysis, we did not
find that this final critical habitat designation would significantly
affect energy supplies, distribution, or use. 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 would not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and Tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or Tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions 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 would significantly or
uniquely affect small governments because it is not anticipated to
reach a Federal mandate of $100 million in any given year; that is, it
is not a ``significant regulatory action'' under the Unfunded Mandates
Reform Act. The designation of critical habitat imposes no obligations
on State or local governments. Small governments could 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. By definition, Federal agencies are not
considered small entities, although the activities they fund or permit
may be proposed or carried out by small entities. Consequently, we do
not believe that the final critical habitat designation would
significantly or uniquely affect small government entities. Therefore,
a small government agency plan is not required.
Takings--Executive Order 12630
In accordance with Executive Order 12630 (Government Actions and
Interference with Constitutionally Protected Private Property Rights),
we have analyzed the potential takings implications of designating
critical habitat for Tiehm's buckwheat in a takings implications
assessment. The Act does not authorize the Service to regulate private
actions on private lands or confiscate private property as a result of
critical habitat designation. Designation of critical habitat does not
affect land ownership, or establish any closures or restrictions on use
of or access to the designated areas. Furthermore, the designation of
critical habitat does not affect landowner actions that do not require
Federal funding or permits, nor does it preclude development of habitat
conservation programs or issuance of incidental take permits to permit
actions that do require Federal funding or permits to go forward.
However, Federal agencies are prohibited from carrying out, funding, or
authorizing actions that would destroy or adversely modify critical
habitat. A takings implications assessment has been completed for the
final designation of critical habitat for Tiehm's buckwheat, and it
concludes that, if adopted, this designation of critical habitat does
not pose significant takings implications for lands within or affected
by the designation.
[[Page 77399]]
Federalism--Executive Order 13132
In accordance with Executive Order 13132 (Federalism), this final
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 final critical habitat
designation with, appropriate State resource agencies. From a
federalism perspective, the designation of critical habitat directly
affects only the responsibilities of Federal agencies. The Act imposes
no other duties with respect to critical habitat, either for States and
local governments, or for anyone else. As a result, the final rule does
not have substantial direct effects either on the States, or on the
relationship between the Federal Government and the States, or on the
distribution of powers and responsibilities among the various levels of
government. The final 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 PBFs
of the habitat necessary for the conservation of the species are
specifically identified. This information does not alter where and what
federally sponsored activities may occur. However, it may assist State
and local governments in long-range planning because they no longer
have to wait for case-by-case section 7 consultations to occur.
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) of the Act would be required. While
non-Federal entities that receive Federal funding, assistance, or
permits, or that otherwise require approval or authorization from a
Federal agency for an action, may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency.
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 would not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We have designated 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 PBFs essential to the conservation of the species.
The designated areas of critical habitat are presented on maps, and the
final 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 final critical habitat for
Tiehm's buckwheat; therefore, no Tribal lands would be affected by the
final designation of critical habitat.
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 Reno Fish and Wildlife 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 Reno Fish
and Wildlife Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Regulation Promulgation
Accordingly, we hereby 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), in the List of Endangered and
Threatened Plants, by adding an entry for ``Eriogonum tiehmii (Tiehm's
buckwheat)'' in alphabetical order under Flowering Plants to read as
set forth below:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
[[Page 77400]]
----------------------------------------------------------------------------------------------------------------
Listing citations and
Scientific name Common name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
Flowering Plants
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Eriogonum tiehmii............... Tiehm's buckwheat. Wherever found.... E 87 FR [Insert Federal
Register page where
the document begins],
12/16/2022;
50 CFR 17.96(a).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.96, in paragraph (a), by adding an entry for ``Family
Polygonaceae: Eriogonum tiehmii (Tiehm's buckwheat)'' in alphabetical
order to read as follows:
Sec. 17.96 Critical habitat--plants.
(a) * * *
Family Polygonaceae: Eriogonum tiehmii (Tiehm's buckwheat)
(1) The critical habitat unit is depicted for Esmeralda County,
Nevada, on the map in this entry.
(2) Within this area, the physical or biological features essential
to the conservation of Tiehm's buckwheat consist of the following:
(i) Plant community. A plant community that supports all life
stages of Tiehm's buckwheat includes:
(A) Open to sparsely vegetated areas with low native plant cover
and stature.
(B) An intact, native vegetation assemblage that can include, but
is not limited to, shadscale saltbush (Atriplex confertifolia), black
sagebrush (Artemisia nova), Nevada mormon tea (Ephedra nevadensis),
James' galleta (Hilaria jamesii (formerly Pleuraphis jamesii)), and
alkali sacaton (Sporobolus airoides) to maintain plant-plant
interactions and ecosystem resiliency and provide the habitats needed
by Tiehm's buckwheat's insect visitors and pollinators.
(C) A diversity of native plants whose blooming times overlap to
provide insect visitors and pollinator species with flowers for
foraging throughout the seasons and to provide nesting and egg-laying
sites; appropriate nest materials; and sheltered, undisturbed habitat
for hibernation and overwintering of pollinator species and insect
visitors.
(ii) Pollinators and insect visitors. Sufficient pollinators and
insect visitors, particularly bees, wasps, beetles, and flies, are
present for the species' successful reproduction and seed production.
(iii) Hydrology. Hydrology that is suitable for Tiehm's buckwheat
consists of dry, open, relatively barren, upland sites subject to
occasional precipitation from rain and/or snow for seed germination.
(iv) Suitable soils. Soils that are suitable for Tiehm's buckwheat
consist of:
(A) Soils with a high percentage (70-95 percent) of surface
fragments that is classified as clayey, smectitic, calcareous, mesic
Lithic Torriorthents; clayey-skeletal, smectitic, mesic Typic
Calcicargids; and clayey, smectitic, mesic Lithic Haplargids.
(B) Soils that have a thin (0-5.5 inch (in) (0-14 centimeter (cm))
A horizon; B horizons that are present as Bt (containing illuvial layer
of lattice clays) or Bw (weathered); C horizons that are not always
present; and soil depths to bedrock that range from 3.5 to 20 in (9 to
51 cm).
(C) Soils characterized by a variety of textures and that include
gravelly clay loam, sand, clay, very gravelly silty clay, and gravelly
loam.
(D) Soils with pH greater than 7.6 (i.e., alkaline) in all soil
horizons.
(E) Soils that commonly have on average boron and bicarbonates
present at higher levels and potassium, zinc, sulfur, and magnesium
present at lower levels.
(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
January 17, 2023.
(4) Data layers defining the map unit were created by the Service,
and the critical habitat unit was then mapped using Universal
Transverse Mercator Zone 11N coordinates. The map in this entry, as
modified by any accompanying regulatory text, establishes the
boundaries of the critical habitat designation. The coordinates or plot
points or both on which the map is based are available to the public at
https://www.regulations.gov at Docket No. FWS-R8-ES-2020-0017 and at
the field office responsible for this designation. You may obtain field
office location information by contacting the Service regional office,
the address of which is listed at 50 CFR 2.2.
(5) Rhyolite Ridge Unit, Esmeralda County, Nevada.
(i) The Rhyolite Ridge Unit consists of approximately 910 acres
(368 hectares) of occupied habitat in the Rhyolite Ridge area of the
Silver Peak Range in Esmeralda County, Nevada. All lands within this
unit are under Federal ownership (Bureau of Land Management).
BILLING CODE 4333-15-P
(ii) Map of the Rhyolite Ridge Unit follows:
Figure 1 to Eriogonum tiehmii (Tiehm's buckwheat) paragraph (5)(ii)
[[Page 77401]]
[GRAPHIC] [TIFF OMITTED] TR16DE22.019
* * * * *
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-27225 Filed 12-14-22; 8:45 am]
BILLING CODE 4333-15-C