Endangered and Threatened Wildlife and Plants; Endangered Species Status for Swale Paintbrush

<RULE> DEPARTMENT OF THE INTERIOR <SUBAGY>Fish and Wildlife Service</SUBAGY> <CFR>50 CFR Part 17</CFR> <DEPDOC>[Docket No. FWS-R2-ES-2022-0173; FXES1111090FEDR-256-FF09E21000]</DEPDOC> <RIN>RIN 1018-BF79</RIN> <SUBJECT>Endangered and Threatened Wildlife and Plants; Endangered Species Status for Swale Paintbrush</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Fish and Wildlife Service, Interior. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> We, the U.S. Fish and Wildlife Service (Service), determine endangered species status under the Endangered Species Act of 1973 (Act), as amended, for the swale paintbrush ( <E T="03">Castilleja ornata</E> ), a flowering plant species from New Mexico within the United States and the states of Chihuahua and Durango in Mexico. This rule extends the Act's protections to the species. We find that designating critical habitat for the swale paintbrush is not prudent. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule is effective January 6, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> This final rule, supporting materials we used in preparing this rule (such as the species status assessment report), and comments we received on the June 8, 2023, proposed rule are available on the internet at <E T="03">https://www.regulations.gov</E> under Docket No. FWS-R2-ES-2022-0173. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Shawn Sartorius, Field Supervisor, U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office, 2105 Osuna Road NE, Albuquerque, NM 87113; telephone 505-346-2525. 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. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Executive Summary</HD> <E T="03">Why we need to publish a rule.</E> Under the Act (16 U.S.C. 1531 <E T="03">et seq.</E> ), 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 an endangered species within 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 the swale paintbrush meets the Act's definition of an endangered species; therefore, we are listing it as such. Listing a species as an endangered or threatened species can be completed only by issuing a rule through the Administrative Procedure Act rulemaking process (5 U.S.C. 551 <E T="03">et seq.</E> ). <E T="03">What this document does.</E> This rule lists the swale paintbrush as an endangered species under the Act. <E T="03">The basis for our action.</E> 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 habitat loss and fragmentation, hydrological alteration, altered fire regimes, effects from intensive grazing pressure, exotic plant invasion, climate change impacts ( <E T="03">i.e.,</E> drought and increased cool season temperatures), and the cumulative effects of multiple stressors are threats to the swale paintbrush to the degree that listing it as an endangered species under the Act is warranted. Additionally, future collection risk may have compounding impacts on the species' viability. Section 4(a)(3) of the Act requires the Secretary of the Interior (Secretary), to the maximum extent prudent and determinable, concurrently with listing designate critical habitat for the species. We have determined that designating critical habitat for the swale paintbrush is not prudent due to the threat of collection and/or vandalism. <HD SOURCE="HD1">Previous Federal Actions</HD> Please refer to our June 8, 2023, proposed listing rule (88 FR 37490) for a detailed description of previous Federal actions concerning the swale paintbrush. <HD SOURCE="HD1">Peer Review</HD> A species status assessment (SSA) team prepared an SSA report for the swale paintbrush. The SSA team was composed of Service biologists, in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species. In accordance with our joint policy on peer review published in the <E T="04">Federal Register</E> on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review in listing and recovery actions under the Act, we solicited independent scientific review of the information contained in the swale paintbrush SSA report. As discussed in our June 8, 2023, proposed rule (88 FR 37490), we sent the SSA report to four independent peer reviewers and received two responses. The peer reviews can be found at <E T="03">https://www.regulations.gov</E> at Docket No. FWS-R2-ES-2022-0173. In preparing the proposed rule, we incorporated the results of these reviews, as appropriate, into the SSA report, which is the foundation for the proposed rule and this final rule. A summary of the peer review comments and our responses can be found in the proposed rule (88 FR 37490 at 37491-37492, June 8, 2023). <HD SOURCE="HD1">Summary of Changes From the Proposed Rule</HD> Based on information we received during the June 8, 2023, proposed rule's public comment period, we made the following changes in this final rule: (a) We refine our discussion of grazing as a threat under Summary of Biological Status and Threats, below; (b) We provide additional discussion under Prudency Determination for critical habitat, below, to better convey the risks and consequences of collection events for the species. These additions provide additional support for our not-prudent critical habitat determination; and (c) We update our list of activities that may qualify as “take” under section 9 of the Act (see Available Conservation Measures, below) to minimize redundant wording. <HD SOURCE="HD1">Summary of Comments and Recommendations</HD> In the proposed rule published on June 8, 2023 (88 FR 37490), we requested that all interested parties submit written comments on the proposal by August 7, 2023. We also contacted appropriate Federal and State agencies, Tribal entities, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. A newspaper notice inviting general public comment was published in the Hidalgo County Herald. We did not receive any requests for a public hearing. All substantive information we received during the comment period has either been incorporated directly into this final determination or is addressed below. <HD SOURCE="HD2">Public Comments</HD> <E T="03">(1) Comment:</E> Multiple commenters requested that we designate a sufficiently large area of critical habitat—hundreds if not thousands of acres—to obviate the risk of illegal collection and that we designate at least two areas of unoccupied critical habitat in the United States—ideally on Federal or public lands—to serve as reintroduction habitat. They suggested that much of the southern Animas Valley could be assumed to be potential habitat given that species had been documented at a second site, the Cowan Ranch site, in 1993, and the area contains many of the physical or biological features essential for the conservation of the species ( <E T="03">i.e.,</E> areas within the elevational range with the same fine-textured soils, vegetative communities, and low-gradient swales). <E T="03">Our response:</E> As we explain in our response to <E T="03">(2) Comment,</E> below, we maintain that designating occupied areas as critical habitat places increased risk on the swale paintbrush; thus, designating critical habitat for the species is not prudent. Accordingly, we do not think it prudent to designate the area suggested by these commenters. That said, we acknowledge that there are likely additional areas throughout the Animas Valley that may contain the physical and biological features essential for the conservation of the species. As mentioned in the species' SSA report, we acknowledge that the species may possibly be extant at the Cowan Ranch site, given its similarity of climatic and environmental conditions and land-use history to the Gray Ranch site (Service 2023, pp. 48-49). However, available information that we have on the species' habitat requirements indicates that the swale paintbrush may be more reliant on microhabitat features that are unknown or unmeasured (Service 2023, pp. 99-100). To aid in the conservation of the species, we have conducted habitat assessments to identify areas of State and Federal lands in the vicinity of the known occupied habitat that might contain additional populations of the species and/or serve as suitable habitat for potential future reintroduction efforts. Multiple searches for suitable habitat on public trust lands—across years and surveyors—have failed to yield additional observations ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 105k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━