16320 Federal Register / Vol. 87, No. 55 / Tuesday, March 22, 2022 / Proposed Rules 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R1–ES–2021–0070; 

FF09E21000 FXES1111090FEDR 223] 

RIN 1018–BF89 

Endangered and Threatened Wildlife 

and Plants; Threatened Species Status 

With Section 4(d) Rule for Sand Dune 

Phacelia and Designation of Critical 

Habitat 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

list the sand dune phacelia (Phacelia 

argentea), a plant species from coastal 

southern Oregon and northern 

California, as a threatened species and 

designate critical habitat under the 

Endangered Species Act of 1973, as 

amended (Act). This determination also 

serves as our 12-month finding on a 

petition to list the sand dune phacelia. 

After a review of the best available 

scientific and commercial information, 

we find that listing the species is 

warranted. Accordingly, we propose to 

list the sand dune phacelia as a 

threatened species with a rule issued 

under section 4(d) of the Act (‘‘4(d) 

rule’’). If we finalize this rule as 

proposed, it would add this species to 

the List of Endangered and Threatened 

Plants and extend the Act’s protections 

to the species. We also propose to 

designate critical habitat for the sand 

dune phacelia under the Act. In total, 

approximately 252 acres (102 hectares) 

in Coos and Curry Counties in Oregon, 

and Del Norte County in California, fall 

within the boundaries of the proposed 

critical habitat designation. We also 

announce the availability of a draft 

economic analysis of the proposed 

designation of critical habitat for sand 

dune phacelia. 

DATES: We will accept comments 

received or postmarked on or before 

May 23, 2022. Comments submitted 

electronically using the Federal 

eRulemaking Portal (see ADDRESSES, 

below) must be received by 11:59 p.m. 

Eastern Time on the closing date. We 

must receive requests for a public 

hearing, in writing, at the address 

shown in FOR FURTHER INFORMATION

CONTACT by May 6, 2022. 

ADDRESSES: You may submit comments 

by one of the following methods: 

(1) Electronically: Go to the Federal 

eRulemaking Portal: https://

www.regulations.gov. In the Search box, 

enter the docket number or RIN for this 

rulemaking (presented above in the 

document headings). For best results, do 

not copy and paste either number; 

instead, type the docket number or RIN 

into the Search box using hyphens. 

Then, click on the Search button. On the 

resulting page, in the panel on the left 

side of the screen, under the Document 

Type heading, check the Proposed Rule 

box to locate this document. You may 

submit a comment by clicking on 

‘‘Comment.’’ 

(2) By hard copy: Submit by U.S. mail 

to: Public Comments Processing, Attn: 

FWS–R1–ES–2021–0070, U.S. Fish and 

Wildlife Service, MS: PRB/3W, 5275 

Leesburg Pike, Falls Church, VA 22041– 

3803. 

We request that you send comments 

only by the methods described above. 

We will post all comments on https:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see 

Information Requested, below, for more 

information). 

Availability of supporting materials: 

For the critical habitat designation, the 

draft economic analysis and the 

coordinates or plot points or both from 

which the maps are generated are 

included in the decision file and are 

available at the Oregon Ecological 

Services website (https://www.fws.gov/ 

oregonfwo/) and at https://

www.regulations.gov under Docket No. 

FWS–R1–ES–2021–0070. Additional 

supporting information that we 

developed for this critical habitat 

designation will be available at the 

Service’s website set out above, at 

https://www.regulations.gov, or both. 

FOR FURTHER INFORMATION CONTACT: Paul 

Henson, State Supervisor, Oregon Fish 

and Wildlife Office, 2600 SE 98th 

Avenue, Suite 100, Portland, OR 97266; 

telephone (503) 231–6179. 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-ofcontact in the United States. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

Why we need to publish a rule. Under 

the Act, if we determine that a species 

warrants listing, we are required to 

promptly publish a proposal in the 

Federal Register, unless doing so is 

precluded by higher-priority actions and 

expeditious progress is being made to 

add and remove qualified species to or 

from the List of Endangered and 

Threatened Wildlife and Plants. The 

Service will make a determination on 

our proposal within 1 year. If there is 

substantial disagreement regarding the 

sufficiency and accuracy of the available 

data relevant to the proposed listing, we 

may extend the final determination for 

not more than six months. To the 

maximum extent prudent and 

determinable, we must designate critical 

habitat for any species that we 

determine to be an endangered or 

threatened species under the Act. 

Listing a species as an endangered or 

threatened species and designation of 

critical habitat can only be completed 

by issuing a rule. 

What this document does: 

• Proposes to list sand dune phacelia 

as a threatened species under the Act. 

• Proposes a rule issued under 

section 4(d) of the Act (‘‘4(d) rule’’) that 

would make it unlawful to remove and 

reduce to possession the species from 

areas under Federal jurisdiction; 

maliciously damage or destroy the 

species on areas under Federal 

jurisdiction; or remove, cut, dig up, or 

damage or destroy the species on any 

other area in knowing violation of any 

law or regulation of any State or in the 

course of any violation of a State 

criminal trespass law; import or export; 

sell; or involve in interstate or foreign 

commerce. 

• Proposes to designate critical 

habitat for the species on approximately 

252 acres (ac) (102 hectares (ha)) in Coos 

and Curry Counties in Oregon, and Del 

Norte County in California. 

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 stressors related to 

Factors A and E (invasive species 

encroachment and competition, climate 

change, and small population size) are 

causing sand dune phacelia to be 

threatened. 

Section 4(a)(3) of the Act requires the 

Secretary of the Interior (Secretary) to 

designate critical habitat concurrent 

with listing to the maximum extent 

prudent and determinable. Section 

3(5)(A) of the Act defines critical habitat 

as (i) the specific areas within the 


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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. 

Information Requested 

We intend that any final action 

resulting from this proposed rule will be 

based on the best scientific and 

commercial data available and be as 

accurate and as effective as possible. 

Therefore, we request comments or 

information from other governmental 

agencies, Native American Tribes, the 

scientific community, industry, or any 

other interested parties concerning this 

proposed rule. 

We particularly seek comments 

concerning: 

(1) The species’ biology, range, and 

population trends, including: 

(a) Biological or ecological 

requirements of the species, including 

habitat requirements; 

(b) Genetics and taxonomy; 

(c) Historical and current range, 

including distribution patterns; 

(d) Historical and current population 

levels, and current and projected trends; 

and 

(e) Past and ongoing conservation 

measures for the species, its habitat, or 

both. 

(2) Factors that may affect the 

continued existence of the species, 

which may include habitat modification 

or destruction, overutilization, disease, 

predation, the inadequacy of existing 

regulatory mechanisms, or other natural 

or manmade factors. 

(3) Biological, commercial trade, or 

other relevant data concerning any 

threats (or lack thereof) to this species 

and existing regulations that may be 

addressing those threats. 

(4) Additional information concerning 

the historical and current status, range, 

distribution, and population size of this 

species, including the locations of any 

additional populations of this species. 

(5) Information on regulations that are 

necessary and advisable to provide for 

the conservation of the sand dune 

phacelia and that the Service can 

consider in developing a 4(d) rule for 

the species. In particular, information 

concerning the extent to which we 

should include any of the Act’s section 

9 prohibitions in the 4(d) rule or 

whether we should consider any 

additional exceptions from the 

prohibitions in the 4(d) rule. 

(6) The reasons why we should or 

should not designate habitat as ‘‘critical 

habitat’’ under section 4 of the Act (16 

U.S.C. 1531 et seq.), including 

information to inform the following 

factors that the regulations identify as 

reasons why designation of critical 

habitat may be not prudent: 

(a) The species is threatened by taking 

or other human activity and 

identification of critical habitat can be 

expected to increase the degree of such 

threat to the species; 

(b) The present or threatened 

destruction, modification, or 

curtailment of a species’ habitat or range 

is not a threat to the species, or threats 

to the species’ habitat stem solely from 

causes that cannot be addressed through 

management actions resulting from 

consultations under section 7(a)(2) of 

the Act; 

(c) Areas within the jurisdiction of the 

United States provide no more than 

negligible conservation value, if any, for 

a species occurring primarily outside 

the jurisdiction of the United States; or 

(d) No areas meet the definition of 

critical habitat. 

(7) Specific information on: 

(a) The amount and distribution of 

sand dune phacelia habitat; 

(b) What areas, that were occupied at 

the time of listing and that contain the 

physical or biological features essential 

to the conservation of the species, 

should be included in the designation 

and why; 

(c) Any additional areas occurring 

within the range of the species (in Coos 

or Curry County in Oregon, or Del Norte 

County in California) that should be 

included in the designation because 

they (1) are occupied at the time of 

listing and contain the physical or 

biological features that are essential to 

the conservation of the species and that 

may require special management 

considerations, or (2) are unoccupied at 

the time of listing and are essential for 

the conservation of the species; 

(d) Special management 

considerations or protection that may be 

needed in critical habitat areas we are 

proposing, including managing for the 

potential effects of climate change; and 

(e) What areas not occupied at the 

time of listing are essential for the 

conservation of the species. We 

particularly seek comments: 

(i) Regarding whether occupied areas 

are adequate for the conservation of the 

species; 

(ii) Providing specific information 

regarding whether or not unoccupied 

areas would, with reasonable certainty, 

contribute to the conservation of the 

species and contain at least one physical 

or biological feature essential to the 

conservation of the species; and 

(iii) Explaining whether or not 

unoccupied areas fall within the 

definition of ‘‘habitat’’ at 50 CFR 424.02 

and why. 

(8) Land use designations and current 

or planned activities in the subject areas 

and their possible impacts on proposed 

critical habitat. 

(9) Any probable economic, national 

security, or other relevant impacts of 

designating any area that may be 

included in the final designation, and 

the related benefits of including or 

excluding specific areas. 

(10) Information on the extent to 

which the description of probable 

economic impacts in the draft economic 

analysis is a reasonable estimate of the 

likely economic impacts and any 

additional information regarding 

probable economic impacts that we 

should consider. 

(11) Whether any specific areas we are 

proposing for critical habitat 

designation should be considered for 

exclusion under section 4(b)(2) of the 

Act, and whether the benefits of 

potentially excluding any specific area 

outweigh the benefits of including that 

area under section 4(b)(2) of the Act. 

(12) Whether we could improve or 

modify our approach to designating 

critical habitat in any way to provide for 

greater public participation and 

understanding, or to better 

accommodate public concerns and 

comments. 

Please include sufficient information 

with your submission (such as scientific 

journal articles or other publications) to 

allow us to verify any scientific or 

commercial information you include. 

Please note that submissions merely 

stating support for, or opposition to, the 

action under consideration without 

providing supporting information, 

although noted, will not be considered 

in making a determination, as section 

4(b)(1)(A) of the Act directs that 

determinations as to whether any 

species is an endangered or a threatened 

species must be made ‘‘solely on the 

basis of the best scientific and 

commercial data available.’’ 

You may submit your comments and 

materials concerning this proposed rule 

by one of the methods listed in 

ADDRESSES. We request that you send 


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comments only by the methods 

described in ADDRESSES. 

If you submit information via https:// 

www.regulations.gov, your entire 

submission—including any personal 

identifying information—will be posted 

on the website. If your submission is 

made via a hardcopy that includes 

personal identifying information, you 

may request at the top of your document 

that we withhold this information from 

public review. However, we cannot 

guarantee that we will be able to do so. 

We will post all hardcopy submissions 

on https://www.regulations.gov. 

Comments and materials we receive, 

as well as supporting documentation we 

used in preparing this proposed rule, 

will be available for public inspection 

on https://www.regulations.gov. 

Because we will consider all 

comments and information we receive 

during the comment period, our final 

determinations may differ from this 

proposal. Based on the new information 

we receive (and any comments on that 

new information), we may conclude that 

the species is endangered instead of 

threatened, or we may conclude that the 

species does not warrant listing as either 

an endangered species or a threatened 

species. For critical habitat, our final 

designation may not include all areas 

proposed, may include some additional 

areas that meet the definition of critical 

habitat, and may exclude some areas if 

we find the benefits of exclusion 

outweigh the benefits of inclusion. In 

addition, we may change the parameters 

of the prohibitions or the exceptions to 

those prohibitions in the 4(d) rule if we 

conclude it is appropriate in light of 

comments and new information 

received. For example, we may expand 

the prohibitions to include prohibiting 

additional activities if we conclude that 

those additional activities are not 

compatible with conservation of the 

species. Conversely, we may establish 

additional exceptions to the 

prohibitions in the final rule if we 

conclude that the activities would 

facilitate or are compatible with the 

conservation and recovery of the 

species. 

Public Hearing 

Section 4(b)(5) of the Act provides for 

a public hearing on this proposal, if 

requested. Requests must be received by 

the date specified in DATES. Such 

requests must be sent to the address 

shown in FOR FURTHER INFORMATION

CONTACT. We will schedule a public 

hearing on this proposal, if requested, 

and announce the date, time, and place 

of the hearing, as well as how to obtain 

reasonable accommodations, in the 

Federal Register and local newspapers 

at least 15 days before the hearing. For 

the immediate future, we will provide 

these public hearings using webinars 

that will be announced on the Service’s 

website, in addition to the Federal 

Register. The use of these virtual public 

hearings is consistent with our 

regulations at 50 CFR 424.16(c)(3). 

Previous Federal Actions 

On March 7, 2014, the Service 

received a petition requesting that sand 

dune phacelia be listed as an 

endangered or threatened species and, if 

applicable, critical habitat be designated 

for this species under the Act (Center for 

Biological Diversity et al. 2014, entire). 

Our subsequent 90-day finding (80 FR 

37568, July 1, 2015) concluded that the 

petition provided substantial 

information, and that the status of sand 

dune phacelia warranted further review. 

Supporting Documents 

A species status assessment (SSA) 

team prepared an SSA report for the 

sand dune phacelia. The SSA team was 

composed of Service biologists, in 

consultation with other species experts. 

The SSA report represents a 

compilation of the best scientific and 

commercial data available concerning 

the status of the species, including the 

impacts of past, present, and future 

factors (both negative and beneficial) 

affecting the species. In accordance with 

our joint policy on peer review 

published in the Federal Register on 

July 1, 1994 (59 FR 34270), and our 

August 22, 2016, memorandum 

updating and clarifying the role of peer 

review of listing actions under the Act, 

we sought the expert opinions of three 

appropriate specialists regarding the 

SSA. We received three responses. We 

also sent the SSA report to seven 

partners, including scientists with 

expertise in botany and coastal native 

dune plant conservation, for review. We 

received review from three partners: 

Oregon Department of Agriculture’s 

Native Plant Conservation Program, the 

California Department of Parks and 

Recreation, and the Tolowa Dunes 

Stewards. 

I. Proposed Listing Determination 

Background 

Sand dune phacelia (Phacelia 

argentea), also known as silvery 

phacelia, is an evergreen, herbaceous, 

flowering perennial in the forget-me-not 

family (Boraginaceae), and its status as 

a taxonomically valid species is wellaccepted (Nelson and MacBride 1916, p. 

34). It is found only on coastal dune 

habitat in southern Oregon (Coos and 

Curry Counties) and far northern 

California (Del Norte County) coasts. A 

rangewide survey conducted in 2017 

documented 26 occupied sites 

(including 1 entirely introduced 

population), with 16 sites in Oregon and 

the remaining 10 in California (Brown 

2020a database). Sand dune phacelia 

occurs on the open sand above the high 

tide line, further inland on semistabilized and open dunes, and on 

coastal bluffs (Kalt 2008, p. 2). It has 

been described as occurring at 

elevations ranging from 10 to 40 feet (3 

to 12 meters) and on slopes less than 30 

percent composed of sand or (rarely) 

gravel (Rodenkirk 2019, p. 7). 

Sand dune phacelia exhibits multiple 

adaptations for living in drought-like, 

nutrient-poor areas with high winds, 

blowing sand, and salt spray. It forms 

mats that reduce its exposure to wind 

and spray and has silvery hairs on its 

leaves, which allow it to resist 

desiccation in its harsh environment of 

blowing sand. Its tap root may be 

extensive, facilitating life in an 

environment of shifting sands and 

maximizing the plant’s ability to uptake 

water (Rodenkirk 2019, p. 12). 

Sand dune phacelia occurs in sandy 

habitats that are sufficiently free of 

competing vegetation to provide space 

and a high light environment to allow 

for seedling establishment and growth 

(Kalt 2008, p. 4; Meinke 2016, p. 2). 

Reproductively mature plants begin to 

bloom in late April and May, with 

flowers persisting through August 

(Meinke 1982, p. 282). Sand dune 

phacelia appears to be largely incapable 

of significant self-pollination (Meinke 

2016, p. 3), relying upon pollination by 

bees (Rittenhouse 1995, p. 8). 

A thorough review of the taxonomy, 

life history, and ecology of the sand 

dune phacelia (Phacelia argentea) is 

presented in the SSA report (Service 

2021, pp. 7–20). 

Regulatory and Analytical Framework 

Regulatory Framework 

Section 4 of the Act (16 U.S.C. 1533) 

and its implementing regulations (50 

CFR part 424) set forth the procedures 

for determining whether a species is an 

endangered species or a threatened 

species. The Act defines an 

‘‘endangered species’’ as a species that 

is in danger of extinction throughout all 

or a significant portion of its range, and 

a ‘‘threatened species’’ as a species that 

is likely to become an endangered 

species within the foreseeable future 

throughout all or a significant portion of 

its range. The Act requires that we 

determine whether any species is an 

endangered species or a threatened 

species because of any of the following 

factors: 


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(A) The present or threatened 

destruction, modification, or 

curtailment of its habitat or range; 

(B) Overutilization for commercial, 

recreational, scientific, or educational 

purposes; 

(C) Disease or predation; 

(D) The inadequacy of existing 

regulatory mechanisms; or 

(E) Other natural or manmade factors 

affecting its continued existence. 

These factors represent broad 

categories of natural or human-caused 

actions or conditions that could have an 

effect on a species’ continued existence. 

In evaluating these actions and 

conditions, we look for those that may 

have a negative effect on individuals of 

the species, as well as other actions or 

conditions that may ameliorate any 

negative effects or may have positive 

effects. 

We use the term ‘‘threat’’ to refer in 

general to actions or conditions that are 

known to or are reasonably likely to 

negatively affect individuals of a 

species. The term ‘‘threat’’ includes 

actions or conditions that have a direct 

impact on individuals (direct impacts), 

as well as those that affect individuals 

through alteration of their habitat or 

required resources (stressors). The term 

‘‘threat’’ may encompass—either 

together or separately—the source of the 

action or condition or the action or 

condition itself. 

However, the mere identification of 

any threat(s) does not necessarily mean 

that the species meets the statutory 

definition of an ‘‘endangered species’’ or 

a ‘‘threatened species.’’ In determining 

whether a species meets either 

definition, we must evaluate all 

identified threats by considering the 

expected response by the species, and 

the effects of the threats—in light of 

those actions and conditions that will 

ameliorate the threats—on an 

individual, population, and species 

level. We evaluate each threat and its 

expected effects on the species, then 

analyze the cumulative effect of all of 

the threats on the species as a whole. 

We also consider the cumulative effect 

of the threats in light of those actions 

and conditions that will have positive 

effects on the species, such as any 

existing regulatory mechanisms or 

conservation efforts. The Secretary 

determines whether the species meets 

the definition of an ‘‘endangered 

species’’ or a ‘‘threatened species’’ only 

after conducting this cumulative 

analysis and describing the expected 

effect on the species now and in the 

foreseeable future. 

The Act does not define the term 

‘‘foreseeable future,’’ which appears in 

the statutory definition of ‘‘threatened 

species.’’ Our implementing regulations 

at 50 CFR 424.11(d) set forth a 

framework for evaluating the foreseeable 

future on a case-by-case basis. The term 

‘‘foreseeable future’’ extends only so far 

into the future as the Service can 

reasonably determine that both the 

future threats and the species’ responses 

to those threats are likely. In other 

words, the foreseeable future is the 

period of time in which we can make 

reliable predictions. ‘‘Reliable’’ does not 

mean ‘‘certain’’; it means sufficient to 

provide a reasonable degree of 

confidence in the prediction. Thus, a 

prediction is reliable if it is reasonable 

to depend on it when making decisions. 

It is not always possible or necessary 

to define foreseeable future as a 

particular number of years. Analysis of 

the foreseeable future uses the best 

scientific and commercial data available 

and should consider the timeframes 

applicable to the relevant threats and to 

the species’ likely responses to those 

threats in view of its life-history 

characteristics. Data that are typically 

relevant to assessing the species’ 

biological response include speciesspecific factors such as lifespan, 

reproductive rates or productivity, 

certain behaviors, and other 

demographic factors. 

Analytical Framework 

The SSA report documents the results 

of our comprehensive biological review 

of the best scientific and commercial 

data regarding the status of the species, 

including an assessment of the potential 

threats to the species. The SSA report 

does not represent a decision by the 

Service on whether the species should 

be proposed for listing 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 FWS–R1–ES–2021– 

0070 on https://www.regulations.gov 

and at https://www.fws.gov/oregonfwo. 

To assess sand dune phacelia 

viability, we used the three conservation 

biology principles of resiliency, 

redundancy, and representation (Shaffer 

and Stein 2000, pp. 306–310). Briefly, 

resiliency supports the ability of the 

species to withstand environmental and 

demographic stochasticity (for example, 

wet or dry, warm or cold years), 

redundancy supports the ability of the 

species to withstand catastrophic events 

(for example, droughts, large pollution 

events), and representation supports the 

ability of the species to adapt over time 

to long-term changes in the environment 

(for example, climate changes). In 

general, the more resilient and 

redundant a species is and the more 

representation it has, the more likely it 

is to sustain populations over time, even 

under changing environmental 

conditions. Using these principles, we 

identified the species’ ecological 

requirements for survival and 

reproduction at the individual, 

population, and species levels, and 

described the beneficial and risk factors 

influencing the species’ viability. 

The SSA process can be categorized 

into three sequential stages. During the 

first stage, we evaluated the individual 

species’ life-history needs. The next 

stage involved an assessment of the 

historical and current condition of the 

species’ demographics and habitat 

characteristics, including an 

explanation of how the species arrived 

at its current condition. The final stage 

of the SSA involved making predictions 

about the species’ responses to positive 

and negative environmental and 

anthropogenic influences. Throughout 

all of these stages, we used the best 

available information to characterize 

viability as the ability of a species to 

sustain populations in the wild over 

time. We use this information to inform 

our regulatory decision. 

Summary of Biological Status and 

Threats 

In this discussion, we review the 

biological condition of the species and 

its resources, and the threats that 

influence the species’ current and future 

condition, in order to assess the species’ 

overall viability and the risks to that 

viability. 

Individual Needs 

Sand dune phacelia occurs in sandy 

habitats that are sufficiently free of 

competing vegetation to allow for 

seedling establishment and growth (Kalt 

2008, p. 4; Meinke 2016, p. 2). Drought 

has been implicated in low seedling 

recruitment and adult mortality 

(Rodenkirk 2019, p. 17), but precise 

moisture requirements are unknown. 

Nutritional needs are evidently low, as 

sand is nutrient poor. Whether sand 

dune phacelia is mycorrhizal (like many 

other dune species) is unknown. A high 

light environment is important for sand 

dune phacelia to complete its life cycle 

and reproduce. There is evidence that 

high light exposure is needed for seed 

germination (Meinke 2016, p. 5) as well 

as for seedling establishment and 

growth (Rodenkirk 2019, p. 19; Jacobs 

2019, p. 92). 


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Population Needs 

To be adequately resilient, 

populations of sand dune phacelia need 

sufficient numbers of reproductive 

individuals to withstand stochastic 

events. Sufficient annual seed 

production and seedling establishment 

is necessary to offset mortality of mature 

sand dune phacelia plants within a 

population. Because large individuals 

produce the most seed (Meinke 2016, p. 

3), their loss is likely to have the 

greatest impact on the overall 

population. However, no quantitative 

analyses have been completed to 

determine minimum viable population 

size for sand dune phacelia. 

Sandy habitat that is relatively free of 

vegetative competition is important for 

population persistence (Rodenkirk 2019, 

p. 16; Rittenhouse 1995, p. 8). 

Historically, sand dunes shifted as 

dictated by prevailing winds, tides, and 

storm surge, and these forces 

maintained and supported native dune 

plant communities adapted to highly 

dynamic environments. In the absence 

of sand-disturbing forces, dune habitats 

are susceptible to rapid colonization by 

nonnative species such as European 

beachgrass (Ammophila arenaria) and 

gorse (Ulex europaea), as well as 

encroachment by native successional 

species like shore pine (Pinus contorta 

ssp. contorta) (Meinke 2016, p. 2). 

Sand dune phacelia is largely 

dependent upon pollination by bees. In 

coastal dune habitats, bee abundance 

and species richness are positively 

correlated with the presence of sand 

dune phacelia (Julian 2012, p. 3), and 

negatively correlated with cover of 

European beachgrass and other invasive 

vegetation (Julian 2012, p. 21). 

Species Needs 

To maintain viability, sand dune 

phacelia should have a sufficient 

number of sustainable populations that 

are well-distributed throughout its 

geographic range and throughout the 

variety of ecological settings in which 

the species is known to exist. Suitable 

habitat must be available, and the 

number and distribution of adequately 

resilient populations must be sufficient 

for the species to withstand catastrophic 

events. No quantitative analysis exists 

upon which to determine the minimum 

number of populations or the quantity 

of suitable habitat necessary for sand 

dune phacelia to maintain viability as a 

species. 

The historical extent and distribution 

of sand dune phacelia across the 

southern Oregon and far northern 

California coasts is not precisely known. 

The species may have been more 

abundant, widespread, and 

contiguously distributed on the 

landscape prior to the loss and 

stabilization of sand dune habitats, offhighway vehicle use, and the 

introduction of invasive species 

(particularly European beachgrass) 

(Meinke 2016, p. 2). Due to its 

specialized adaptations to the sand 

dune environment, it is unlikely that 

sand dune phacelia ever occurred in a 

diverse range of ecological 

environments, and no information exists 

on the genetics of sand dune phacelia 

that would allow an assessment of 

whether populations demonstrate 

sufficient genetic variability to persist 

under changing environmental 

conditions. 

In summary, individual sand dune 

phacelia plants require sandy substrate 

with limited vegetative competition for 

light, moisture, and growing space. 

Populations must be sufficiently large 

and sustainable to withstand stochastic 

events, have sufficient annual seed 

production, and an adequate pollinator 

community. For species viability, sand 

dune phacelia must have sufficiently 

resilient populations that are well 

distributed across its range and 

sufficient genetic diversity to adapt to 

changing conditions (table 1). 

TABLE 1—INDIVIDUAL, POPULATION, AND SPECIES NEEDS OF SAND DUNE PHACELIA

Individuals Populations Species 

Bare sandy substrate Sufficiently large number of reproductive individuals per population to withstand 

stochastic events.

Sufficient number of adequately resilient populations well distributed 

across the range 

High light environment.Sufficient annual seed production to offset mortality ........................................... Sufficient genetic diversity to adapt to 

change over time (no information on 

genetics) 

Water ........................ Dune/sandy habitat with low degree of invasive species.

Pollinators ................. Sufficient abundance and diversity of pollinators for outcrossing/optimal seed 

production.

Threats 

We considered a comprehensive set of 

sand dune phacelia stressors that have 

been cited in the literature (Rodenkirk 

2019, entire), in the data provided from 

our partners (Brown 2020a database), 

and in the petition (Center for Biological 

Diversity et al. 2014, entire). For each 

stressor we assessed whether there was 

sufficient evidence that the influence of 

the stressor rose to the scope and 

magnitude necessary to impact sand 

dune phacelia populations, and thus be 

carried forward in our analysis of 

current and future condition. We also 

examined positive influence factors 

(conservation efforts) in a similar 

manner. 

Invasive Plants 

Invasive, introduced plant species are 

considered one of the most influential 

stressors to sand dune phacelia and its 

habitat (Kalt 2008, p. 7; Rodenkirk 2019, 

p. 6). European beachgrass, gorse, and 

other invasive plant species outcompete 

sand dune phacelia throughout its range 

(Rodenkirk 2019, p. 6). Introduced to 

the Pacific Northwest region of the 

United States and California in the 

1800s, European beachgrass is an 

aggressive, perennial, rhizomatous 

grass. It was extensively planted to 

stabilize sand and build dunes parallel 

to the ocean shore to protect 

infrastructure from the effects of ocean 

storms and tides (Hacker et al. 2011, p. 

2; Oregon Department of Fish and 

Wildlife (ODFW) 2016, pp. 67). 

Colonizing European beachgrass 

captures sand with its deep roots and 

spreading shoots, forming dense 

monocultures of grass that outcompete 

many native dune species, including 

sand dune phacelia, for growing space, 

sunlight, and moisture (Rittenhouse 

1996, p. 3). The steep, heavily vegetated 

foredunes seen today along much of the 

Oregon, and to a lesser extent California, 

coastlines are the result of European 

beachgrass colonization (Rittenhouse 

1995, p. 9; Zarnetske et al. 2010, pp. 12). 

Dune stabilization by European 

beachgrass also facilitates the 

establishment and succession of native 

trees and shrubs that proliferate in the 

absence of natural disturbance regimes, 


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thereby resulting in the conversion, and 

ultimate loss, of native dune habitat 

(Rittenhouse 1996, p. 3; Brown 2020a 

database). 

According to population surveys 

conducted in California, European 

beachgrass poses the most consequential 

threat to sand dune phacelia 

populations in that State (Jacobs 2019, 

p. 9; Imper 1987, p. 1; Kalt 2008, p. 7). 

In Oregon, the expansion of European 

beachgrass was a likely factor in the 

extirpation of two sand dune phacelia 

populations near Bandon (Christy 2007, 

p. 15), and adverse effects to sand dune 

phacelia populations from European 

beachgrass have been documented at 

multiple locations throughout its range 

(Rittenhouse 1995, p. 9; Kagan and Titus 

1998a, p. 10; Kagan and Titus 1998b, p. 

3; Titus 1998, p. 12; Rodenkirk 2019, 

entire; Brown 2020a database). 

We are also aware that under certain 

ocean shore alteration permits in 

Oregon, landowners are required to 

stabilize the dune against erosion in 

order to protect properties and 

shoreline. European beachgrass is often 

used because it is readily available and 

effective for that purpose (Bacheller 

2021, pers. comm.). This permitting 

requirement may promote the spread of 

European beachgrass, although to our 

knowledge this is not currently 

occurring within the range of sand dune 

phacelia. 

Gorse is an introduced spiny shrub 

that forms impenetrable thickets that 

overtake dune habitats. It is widely 

recognized as a threat to native plant 

species and dune habitats (Christy 2007, 

entire; ODFW 2016, p. 7). Widespread 

in the Bandon, Oregon, area, it poses a 

threat to sand dune phacelia 

populations in the northern region of its 

range (Kagan and Christy 1998, p. 14; 

Christy 2007, p. 17; Kalt 2008 p. 8; 

Rodenkirk 2019, p. 6; Brown 2020a 

database). Gorse is also highly 

flammable and produces copious 

amounts of seed that can persist in the 

environment for 30 years or more 

(Goodwin 2018, p. 119). 

There is broad consensus in the 

scientific literature and available data 

that invasive species presently pose a 

population-level threat to sand dune 

phacelia rangewide and will continue to 

do so into the future, so we included 

this threat in our analysis of current and 

future condition. 

Recreational Impacts 

Legal and illegal off-highway vehicle 

(OHV) use can damage or kill sand dune 

phacelia. While widely perceived as a 

potential threat (Kalt 2008, p. 9; Brown 

2020a database; Rodenkirk 2019, p. 6), 

documented impacts from OHVs are 

limited to individuals at a small number 

of sites throughout its range, most 

notably in California (Imper, 1987, p. 1; 

Gedik 2009, p. 7; Tolowa Dune 

Stewards 2013, p. 18; Jacobs 2019, pp. 

15, 102). Impacts of OHV use to sand 

dune phacelia in Oregon are thought to 

be minimal and localized (Rittenhouse 

1995, p. 9), with most OHV use 

occurring in areas unoccupied by sand 

dune phacelia (Kalt 2008, p. 9). 

Trampling by pedestrians and 

equestrians is noted in the literature as 

a concern throughout the range of sand 

dune phacelia. Trampling can both 

decrease the size of sand dune phacelia 

mats and destroy individuals 

(Rodenkirk 2019, p. 6). However, light 

levels of disturbance can also partially 

destabilize dunes and reduce invasive 

species proliferation, thus benefitting 

sand dune phacelia habitat (Kalt 2008, 

p. 10). Additional study is needed to 

investigate the effects of human traffic 

on sand dune phacelia populations 

(Jacobs 2019, pp. 113–114). 

In general, while noted as a stressor 

and documented as destructive to 

individuals at some sites, lack of 

available data on population-level 

effects of recreational use on sand dune 

phacelia precluded us from carrying 

forward the influence of recreation in 

our analysis of current and future 

condition. However, we do 

acknowledge that recreational impacts, 

primarily from OHV use, are damaging 

sand dune phacelia habitat at some 

sites, and may be especially deleterious 

to small populations. 

Coastal Development 

Coastal development may directly 

damage sand dune phacelia plants or 

result in habitat loss due to conversion 

of sand dunes to other uses (Kalt 2008, 

p. 9). Coastal development may be more 

consequential in Oregon, where Statelisted plants receive no protection on 

private lands. In California, the 

California Environmental Quality Act, 

the Native Plant Protection Act, and the 

California Coastal Act regulate 

development to minimize impacts to 

coastal dunes and other 

Environmentally Sensitive Habitat 

Areas. 

Most extant populations of sand dune 

phacelia occur on public lands where 

protections are in place that safeguard 

against direct mortality or habitat loss, 

and we found insufficient data to 

support the claim that development is 

currently impacting the remaining 

extant populations on private land. For 

example, the two primary private land 

parcels that currently support sand 

dune phacelia are the Pacific Shores 

Subdivision in California and the sites 

at the Bandon Dunes Golf Resort in 

Oregon. Seventy-five percent of the 

undeveloped, privately owned lots at 

Pacific Shores have been acquired by 

the California Department of Fish and 

Wildlife for inclusion into a 

conservation area, and efforts are 

underway to purchase the remaining 

undeveloped private holdings (Jerabek 

2020, pers. comm.). At the Bandon 

Dunes Golf Resort, a stated goal of the 

conservation-minded owner is to protect 

and enhance the sand dune phacelia 

population there, which after heavy 

infestations of gorse were cleared 

(Gunther 2012, no pagination) now 

represents the largest population 

rangewide (Brown 2020a database). 

It is possible that coastal development 

had impacts on sand dune phacelia 

historically, leading to its present-day 

condition of small and fragmented 

populations. However, based on our 

assessment of current land ownership 

and population condition, the best 

available data does not indicate that 

development is presently a populationlevel threat to sand dune phacelia. This 

stressor may have had historical impacts 

but no longer appears influential, and, 

based on land ownership of extant 

population sites, it seems unlikely to 

become influential in the future. 

Livestock Grazing 

Livestock grazing occurs throughout 

the range of sand dune phacelia on 

some private lands; however, it usually 

occurs on well-stabilized (vegetated) 

dunes and coastal meadows, which are 

not suitable sand dune phacelia habitat. 

Furthermore, in some cases grazing may 

actually benefit sand dune phacelia by 

reducing competition from invasive 

species (Rodenkirk 2019, p. 22). 

Negative effects of livestock grazing on 

sand dune phacelia populations have 

not been documented, and grazing was 

not listed as a threat to any of the 

populations in the most recent 

rangewide survey (Brown 2020a 

database). Given current land 

ownership, we do not expect grazing to 

impact populations in the future. 

Therefore, we did not include livestock 

grazing in our threat analysis. 

Overutilization 

Because of sand dune phacelia’s 

attractive foliage, illegal removal of it for 

horticultural purposes has been cited as 

a threat (Rodenkirk 2019, p. 6; Oregon 

Department of Agriculture (ODA) 2020, 

no pagination). We could find no 

information with which to validate this 

claim or assess its impacts on sand dune 

phacelia populations. As such, we do 

not consider overutilization to be a 

threat influencing populations of sand 


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dune phacelia currently or into the 

future. 

Sea Level Rise 

The best available data does not 

indicate that sea level rise is currently 

influencing sand dune phacelia, and it 

is unknown how changes in sea levels 

may have affected the species in the 

past. However, because sea level rise is 

expected to increase in the future with 

climate change, and near-shore species 

could be affected by sea level rise and 

associated erosion and storm surge 

(IPCC 2014, p. 67), we consider the 

impact of projected sea level rise on 

sand dune phacelia in our analysis of 

future conditions. 

Small Population Size 

We acknowledge that, prior to habitat 

fragmentation, many of the populations, 

especially those south of the town of 

Bandon, Oregon, and near Crescent City, 

California, were most likely functionally 

continuous (Brown 2020b, pers. comm.). 

Our assessment of population 

abundance and habitat quality from 

recent surveys indicates that the number 

of populations of sand dune phacelia is 

reduced compared to documented 

historical occurrences. Many of the 

remaining populations are very small in 

size, and most populations are isolated 

from one another by large tracts of 

unsuitable habitat, making genetic 

exchange and dispersal among most 

populations unlikely without human 

intervention. No information exists on 

the minimum number of individuals 

required to support a sand dune 

phacelia population. However, a 

population size of about 25 individuals 

appears to be biologically relevant given 

the best available data. Specifically, the 

current abundance of nearly every 

extant population falls either below 25 

(1 to 24 individuals) or well above 25 

(100 or more individuals), with all 

populations with fewer than 25 

individuals also undergoing population 

decline (Brown 2020a database). 

Therefore, in the absence of any existing 

minimum viable population analysis to 

draw upon, we assume that at least 25 

individuals are necessary for sand dune 

phacelia population viability. As such, 

low abundance was a factor in our 

analysis of current condition, and we 

considered small populations that 

currently support fewer than 25 

individuals as unlikely to persist in our 

future condition analysis. 

Pollinator Decline 

Because sand dune phacelia is largely 

reliant upon pollination to successfully 

reproduce, pollinator decline is cited as 

a potential threat to sand dune phacelia 

(ODA 2020; no pagination). 

Furthermore, bee abundance and 

diversity were found to be positively 

correlated with the presence of sand 

dune phacelia in one study in California 

(Julian 2012, p. iii). While we recognize 

the important role pollinators play in 

the needs of sand dune phacelia, we 

found no data with which to assess the 

status of pollinator communities at 

extant sand dune phacelia sites, nor to 

indicate that pollinator decline was 

affecting sand phacelia populations. 

Therefore, we acknowledge the 

importance of a healthy and diverse 

pollinator community but were unable 

to include this factor in our analysis of 

current and future conditions. 

Summary of Threats 

The primary threat currently acting 

upon sand dune phacelia populations is 

that of invasive species, which is 

expected to continue impacting the 

species into the future and was therefore 

included in our analysis of current and 

future condition. In addition, our 

current and future condition analysis 

included the consideration of sea level 

rise and small population size. Other 

stressors mentioned above may act on 

sand dune phacelia individuals, or have 

highly localized impacts, but do not rise 

to the level of impacting populations. 

However, we acknowledge that all 

stressors may exacerbate the effects of 

other ongoing threats. 

Regulatory Conservation Efforts 

Sand dune phacelia is listed as 

threatened by the Oregon Department of 

Agriculture (ODA) and has a State 

listing status of 1, indicating that it is 

threatened or endangered throughout its 

range (Oregon Biodiversity Information 

Center 2019, p. 33). Native plant species 

that are listed as threatened or 

endangered in Oregon are protected on 

all non-federal public lands (Oregon 

Revised Statutes (ORS) 564.105). Any 

land action on Oregon public lands that 

results, or might result, in the collection 

or disturbance of a threatened or 

endangered species requires either a 

permit or a consultation with ODA staff. 

The State consultation process for 

public land managers requires a written 

evaluation of projects that impact listed 

plant species, and the ODA may 

recommend alternatives to avoid or 

minimize impacts to those species; a 

formal consultation or permit may be 

required. Prohibitions for listed plant 

species in the State of Oregon are 

provided by ORS 603–073–0003, which 

states ‘‘Willful or negligent cutting, 

digging, trimming, picking, removing, 

mutilating, or in any manner injuring, or 

subsequently selling, transporting, or 

offering for sale any plant, flower, 

shrub, bush, fruit, or other vegetation 

growing on the right of way of any 

public highway within this state, within 

500 feet of the center of any public 

highway, upon any public lands, or 

upon any privately owned lands is 

prohibited without the written 

permission of the owner or authorized 

agent of the owner.’’ Additionally, ORS 

564.105(3) calls for the State to establish 

programs for the protection and 

conservation of plant species, and the 

State participates in conservation 

management actions as staffing and 

funding allows. In practice, however, 

resource limitations often prevent 

implementation of the full suite of 

affirmative management actions 

required to achieve the recovery of State 

listed plants. As an example, the 

eradication or control of widespread 

invasive species such as gorse, one of 

the primary threats to sand dune 

phacelia, would pose enormous 

resource requirements that far exceed 

the State’s capacity. 

Oregon State Parks contain nearly 50 

percent of all sand dune phacelia 

populations rangewide. Under the 

master-plan level designation for 

Oregon State parks, sites that contain 

listed species are automatically placed 

in a category of administrative 

conservation designation, which 

provides sand dune phacelia 

populations with protection from 

development. While no formal 

conservation plans to benefit sand dune 

phacelia are in place, invasive control 

actions at several parks improve sand 

dune habitat and may assist with 

restoring or maintaining suitable 

conditions for sand dune phacelia in the 

future (Bacheller 2020, pers. comm.). 

Oregon State Parks are not supported by 

tax dollars, as are other State agencies, 

but are supported by a combination of 

State Park user fees, recreational vehicle 

license fees, and a portion of State 

lottery revenues. As a result, Oregon 

State Park budgets can be subject to 

significant fluctuations in revenue and 

are often limited, which can affect their 

capacity to implement management 

actions for conservation, such as habitat 

restoration for rare plants on State Park 

lands. 

In California, sand dune phacelia is 

designated as a California Rare Plant 

with a rank of 1B.1, meaning that it is 

rare, threatened, or endangered in 

California and elsewhere, and is 

seriously endangered in California. 

Impacts to species of this rank or their 

habitat must be analyzed during 

preparation of environmental 

documents relating to the California 

Environmental Quality Act (CEQA). 


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Under CEQA, state public agencies 

(including State Parks) must provide 

measures to reduce or avoid adverse 

environmental impacts of proposed 

projects, including impacts to 

designated rare plants such as sand 

dune phacelia. Designation as a 

California Rare Plant generally reduces 

negative impacts to sand dune phacelia 

caused by development or other land 

use programs and actions but does not 

ameliorate the primary threat to the 

species, which is that of invasive 

species encroachment. All of the plants 

constituting California Rare Plant Rank 

1B meet the definitions of the California 

Endangered Species Act of the 

California Fish and Game Code, and are 

eligible for State listing, however, sand 

dune phacelia is not listed under the 

California Endangered Species Act. 

The Federal Lands Policy and 

Management Act of 1976, as amended 

(FLPMA; 43 U.S.C. 1701 et seq.) governs 

the management of public lands 

administered by the Bureau of Land 

Management (BLM). Under FLPMA, the 

BLM administers a special status 

species policy that calls for the 

conservation of BLM special status 

species and the ecosystems upon which 

they depend on BLM-administered 

lands. BLM special status species are 

any species listed or proposed for listing 

under the Endangered Species Act, or 

species designated as ‘‘Bureau 

sensitive’’ by the State Director(s). Sand 

dune phacelia is designated as a Bureau 

sensitive special status plant species 

and is thus the recipient of proactive 

conservation efforts on BLM lands as 

staffing and resources allow. On Federal 

lands in Oregon, the BLM regularly 

restores sand dune phacelia habitat 

through the removal or control of 

invasive species at Lost Lake, Floras 

Lake, and Storm Ranch (Rodenkirk 

2019; entire). BLM is updating its 

management plan for the New River 

Area of Critical Environmental Concern, 

where the majority of sand dune 

phacelia populations on BLM land 

occurs (Wright, pers. comm. 2020). The 

new plan will include an emphasis on 

restoring native dune plant 

communities, including those with sand 

dune phacelia. 

Voluntary Conservation Efforts 

Rangewide, the largest sand dune 

phacelia population is located on 

private land at the Bandon Dunes Golf 

Resort, and while no formal 

conservation agreements or 

commitments exist, the private land 

owner has been actively maintaining 

sand dune phacelia habitat through 

ongoing removal of European 

beachgrass and gorse (Gunther 2012, no 

pagination). In California, the South 

Lake Tolowa Restoration effort has 

removed European beachgrass from 

approximately 25 ac (10 ha) at Tolowa 

Dunes State Park and the Lake Earl 

Wildlife Area (Jacobs 2019, pp. 24–25). 

Conducted by California State Parks and 

a volunteer group called the Tolowa 

Dunes Stewards (Jacobs 2019, p. 10), 

restoration efforts initiated in 2010 

increased the sand dune phacelia 

population from approximately 2,300 

plants to 5,936 plants in 2017 (Brown 

2020a database). The South Lake 

Tolowa population is now the largest in 

California, and the second largest 

rangewide. Volunteers from the Tolowa 

Dunes Stewards have also restored 30 ac 

of habitat (12 hectares) at the nearby 

East Dead Lake population via the 

removal of European beachgrass 

(Jerabek 2020, pers. comm.). However, 

in the absence of committed funding or 

agreements associated with these 

restoration efforts, they are almost 

entirely reliant on grant funding and 

volunteer efforts (Jerabek 2020, pers. 

comm.). The significant gains made for 

sand dune phacelia at these sites could 

quickly be lost without continuous 

maintenance efforts, given the 

aggressive nature of European 

beachgrass and other invasive species. 

Rangewide, actions to control 

invasive species have demonstrated 

success in maintaining or increasing 

populations of sand dune phacelia 

(Gunther 2012, no pagination; Meinke 

2016, p. 25; Jacobs 2019, p. 10; 

Rodenkirk 2019; entire). Sand dune 

phacelia is a management-dependent 

species, as restoration of dune habitat 

through ongoing control of invasive 

species is essential to the continuing 

viability of sand dune phacelia 

rangewide. Therefore, we considered 

the contribution of habitat management 

actions, and in particular control of 

invasive species, in our analysis of 

future conditions. 

We also considered whether or not 

our Policy for the Evaluation of 

Conservation Efforts (68 FR 15100, 

March 28, 2003) applies to sand dune 

phacelia habitat management efforts, but 

we determined that it does not apply 

because no formalized agreements exist 

to ensure the future mitigation of the 

threat posed by invasive species. 

In addition to habitat restoration 

activities, augmentation of sand dune 

phacelia populations using transplants 

has been carried out at several sites by 

BLM in partnership with Oregon State 

University (Meinke 2016, entire) and the 

Oregon Department of Agriculture 

(Brown 2017, entire). While transplant 

efforts appear to be beneficial initially, 

transplant mortality over time tends to 

be high as outplanted individuals 

succumb to environmental conditions 

(Meinke 2016, p. 18). Refinements to 

sand dune phacelia cultivation 

protocols are necessary to improve 

transplanting success (Meinke 2016, 

entire; Brown 2017, p. 5). 

Attempts are also underway by BLM 

to enhance or establish populations by 

directly seeding sand dune phacelia into 

suitable habitat (Wright 2020, pers. 

comm.). The recently introduced 

population at Storm Ranch is the largest 

population that occurs on Federal lands 

(Rodenkirk 2019, p. 28). Attempts to 

establish the Storm Ranch population 

began in 2012 with a seeding of 2 ac (0.8 

ha) (Rodenkirk 2019, p. 28). Initial 

seedings were unsuccessful, but 

eventually a population was 

established, with 1,596 plants counted 

in 2018. The population drastically 

declined in 2019, with only 620 plants 

observed (Rodenkirk 2019, p. 29). Longterm monitoring will assess whether 

this seeded population can maintain 

viability. 

Because of the high levels of plant 

mortality observed following 

transplantation efforts, and the 

significant uncertainty as to whether 

augmented or introduced populations 

may be capable of contributing to the 

maintenance or enhancement of sand 

dune phacelia populations over time, 

we did not include the seeded 

population at Storm Ranch, or 

outplanted individuals at other sites, in 

our analysis of current and future 

conditions. 

We determined that habitat 

restoration in the form of invasive 

species removal is the primary 

conservation effort influencing sand 

dune phacelia at the population level, 

and therefore carried it through our 

analysis of future condition. 

Augmentation and reintroduction are 

likely having a positive influence on 

sand dune phacelia, but we lack 

evidence that these conservation efforts 

are having population-level effects at 

this time. 

Current Condition 

Methodology 

We delineated three representation 

units (Oregon–North, Oregon–South, 

and California) based on geographic 

breaks in the distribution of the species, 

because they could not otherwise be 

characterized by marked differences in 

genetic makeup, phenotypic variation, 

habitats, or ecological niches. No 

population viability assessment models 

exist to inform the categorization of 

population condition for sand dune 

phacelia. Therefore, we used the best 


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available science to score the overall 

current condition of each population 

qualitatively as high, moderate, or low, 

based upon our assessment of habitat 

condition, population abundance, and 

population trend over time. The average 

score was then used to rate the overall 

current condition of each population. 

Sand dune phacelia populations were 

surveyed rangewide in Oregon and 

California in 2017 by the Oregon 

Department of Agriculture’s Plant 

Conservation Program (Brown 2020a 

database). The 2017 survey enumerated 

current population size, examined 

historical data to discern population 

trends, delineated the area occupied, 

briefly described the habitat, and 

identified stressors at each site. This 

effort provides the most current data 

available on nearly every extant 

population of sand dune phacelia. 

We excluded sites consisting of 

Phacelia species with intermediate 

morphology (those that appear 

hybridized). These plants were 

determined to most likely be crosses 

between sand dune phacelia and P. 

nemoralis ssp. oregonensis (Brown 

2020a database; Meinke 1982, p. 260). In 

addition to different morphological 

attributes, the intermediate plants occur 

in rockier habitats as compared to areas 

occupied by sand dune phacelia, and 

rockier habitat is more indicative of P. 

nemoralis. While we suspect that these 

plants are most likely hybrids and not 

representatives of sand dune phacelia, 

no genetic information is available upon 

which to base this conclusion. Whether 

the presumed intergrades affect sand 

dune phacelia population viability is 

unknown. More information on 

intermediate populations, as well as on 

all populations, is included in the SSA 

(Service 2021, entire). 

Abundance categories were defined as 

‘‘Low’’ (100 or fewer plants), 

‘‘Moderate’’ (101,500 plants), and 

‘‘High’’ (over 500 plants). These rating 

categories were derived to reflect 

relative abundance between populations 

only, or an index of population size, 

because there is no information 

available on the minimum number of 

individuals necessary to maintain a 

viable population. 

Habitat condition was scored based 

on the most recently available 

observations at sand dune phacelia 

population sites. Because sand dune 

phacelia habitat quality is highly 

influenced by invasive species, the 

scores reflect the relative encroachment 

of invasive species at a given site as 

reported by the 2017 rangewide survey 

(Brown 2020a database) and by BLM. 

Quantitative data on invasive species in 

sand dune phacelia populations, such as 

percent cover of invasive species, are 

not available. 

Population trend data were derived 

from the 2017 rangewide survey (Brown 

2020a database) and reflect documented 

abundance data across historical 

records. Trend data are necessarily 

coarse, as many populations were rarely 

or sporadically monitored prior to 2017. 

Increasing trends were rated as ‘‘High,’’ 

stable trends as ‘‘Moderate,’’ and 

decreasing trends as ‘‘Low.’’ 

The overall condition scores for all 

known extant populations of sand dune 

phacelia are presented in table 2. 

Current Resiliency, Redundancy, and 

Representation 

Resiliency refers to the ability of 

populations to withstand stochastic 

events, and we assessed the resiliency of 

each population using the current 

habitat condition, population 

abundance, and population trend. Of 

the 25 naturally occurring (we did not 

include the 1 entirely introduced 

population) extant sand dune phacelia 

populations we assessed, 4 are currently 

in high condition, 4 are in moderate 

condition, and 17 are in low condition 

(table 2). Therefore, resiliency is low for 

most populations rangewide, with 68 

percent of all populations rated with 

low overall condition (figure 1). 


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Redundancy is a species’ ability to 

withstand catastrophic events and is 

determined by the number of its 

populations and their distribution 

across the landscape. Currently, 

approximately 33,858 naturally 

occurring sand dune phacelia plants 

exist in 25 populations along roughly 

100 miles (161 kilometers (km)) of 

coastline. Our analysis of current 

redundancy concludes that, although 

most extant populations exhibit low 

resiliency, it is unlikely that a single 

catastrophic event could eliminate all 

extant populations, which are well 

distributed throughout all 

representation units, with the most 

robust populations located at either end 

of the range (figure 1). 


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TABLE 2.-CURRENT CONDITION OF EXTANT SAND DUNE PHACELIA POPULATIONS. 

Representation R .

1. U . (P 1 . ) U . es1 1ency mt opu at1on 

mt 

Oregon - North 

Oregon - North Bandon Preserve & Go """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" 

Oregon - North 

Oregon - South Ophir Dunes '"'"'"""''""'""""'"""""""'' 

Oregon- South Nesika Beach 

California 

California 

California 

California 

East Dead Lake """""""""""""""""""""""""""""""""""""""""""""""" 

N End Del Norte Cty. Airport '" '""""' '""""'"'~"''" ""'' ,, ' 

NW End Del Norte Cty. Airport 

Point St. George 

Pebble Beach 

Parameters Overall 

Habitat Ab d Population Current 

Condition un ance Trend Condition 
16330 Federal Register / Vol. 87, No. 55 / Tuesday, March 22, 2022 / Proposed Rules 

Representation refers to the ability of 

a species to adapt to change and is 

based upon considerations of 

phenotypic, genetic, and ecological 

diversity, as well as the species’ ability 

to colonize new areas. There is little 

evidence of phenotypic variation among 

individuals of sand dune phacelia, and 

no data are available on potential 

genetic diversity. As a narrow endemic, 

sand dune phacelia is highly specialized 

and restricted in its ecological niche, 

with all occupied sites sharing similar 

features, and differences being largely 

related to the population’s distance from 

the ocean and position in relation to the 

dune (e.g., foredune, backdune). As 

such, sand dune phacelia demonstrates 

little ecological diversity. However, the 

ability of a species to adapt is gauged 

not only by diversity among 


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12S'W 124•<40W 124'20'W 1:H'W 123"<40W I~ 

•· • City c:::J County 

,~"4 WllteiW8Y Current Condition 

-Interstate • High 

0 3ilkik>metera -~ US Highway • Moderate !lrrtii,:· I , l· t State Higllway. • Low , .. 

I I I . 0 25Mlles 

Figure 1.-Current condition of extant sand dune phacelia populations across the three 

representation units (Oregon-North, Oregon-South, and California). 
Federal Register / Vol. 87, No. 55 / Tuesday, March 22, 2022 / Proposed Rules 16331 

individuals, but also by its ability to 

colonize new areas. Currently, 

populations of sand dune phacelia are 

patchy and dispersed, often isolated by 

large tracts of intervening habitat made 

unsuitable by human development or 

invasive species. The lack of available 

and unoccupied suitable habitat leaves 

less opportunity for a species to exploit 

new resources outside of the area it 

currently occupies and to adapt to 

changing conditions. Further, the lack of 

connectivity between populations may 

result in reduced gene flow and genetic 

diversity, rendering the species less able 

to adapt to novel conditions. 

The low level of phenotypic and 

ecological diversity demonstrated 

within this species, as well as restricted 

opportunity for colonization into new 

areas, indicates some limitations in 

representation for sand dune phacelia. 

However, sand dune phacelia continues 

to be represented by multiple 

populations distributed throughout the 

known historical range of the species, 

although the resiliency of most of these 

populations is low. 

Future Condition 

The intent of this analysis is to assess 

the viability of sand dune phacelia into 

the future under various plausible 

future scenarios. Further explanation on 

our methodology and assumptions for 

our future condition analysis can be 

found in our SSA report (Service 2021, 

Chapter 6). We assessed the future 

condition of sand dune phacelia by 

considering how invasive species 

competition, the effects of climate 

change, small population size, and 

habitat management efforts may affect 

populations over time. We considered 

the impacts of both habitat management 

(invasive species removal) and climate 

change on the extent of invasive species 

cover expected to occur in the future at 

each site. Climate change is also 

projected to affect sea levels; thus, we 

assessed each site for potential effects of 

inundation due to sea level rise. In 

addition to the overall current condition 

categories of ‘‘high,’’ ‘‘moderate,’’ and 

‘‘low’’ that were based on current 

habitat and demographic factors, we 

included for the future condition 

analysis the additional categories of 

‘‘very high,’’ ‘‘very low,’’ and 

‘‘extirpated’’ for populations where the 

overall condition was already high but 

projected to improve, was already low 

but projected to deteriorate further, or 

where the population (with fewer than 

25 individuals) was expected to become 

extirpated, respectively. 

Future Timeframe 

We considered a timeframe for this 

analysis based upon the extent into the 

future we could reasonably forecast the 

impact of the threats on the species, 

given the data and models available to 

us. Global climate models project 

changes in global temperature and other 

associated climatic changes based on 

potential future scenarios of greenhouse 

gas concentrations in the atmosphere 

(i.e., Representative Concentration 

Pathways, or RCPs). RCP 4.5 assumes 

major near-future cuts to carbon dioxide 

emissions, and RCP 8.5 assumes that 

current emissions practices continue 

with no significant change (Terando et 

al. 2020, p. 10). Thus, these RCPs 

represent conditions in the upper and 

lower ends of the range of what can 

reasonably be expected for the future 

effects of climate change (Terando et al. 

2020, p. 17). Climate model projections 

are fairly aligned until about midcentury when they start to diverge more, 

as this is the timeframe during which 

our near-future carbon emissions begin 

to manifest in projections of future 

climate. Although all projections into 

the future show global temperature and 

sea level rise increasing, the variability 

or uncertainty in the magnitude of 

changes expected becomes much greater 

at this point. Therefore, we determined 

that the period of time from the present 

to about mid-century to be the 

timeframe over which we could most 

reliably project the future condition of 

sand dune phacelia. As such, the 

timeframe for our analysis of the future 

condition of sand dune phacelia extends 

to approximately the year 2060, which 

is the mid-century timeframe available 

for the sea level rise projections we used 

to assess inundation at sand dune 

phacelia populations (Service 2021, p. 

43). 

Climate Change 

Warming temperatures have already 

been documented and are expected to 

continue in the Pacific Northwest, 

though changes will be somewhat 

muted in coastal areas (Mote et al. 2019, 

summary p. 1). There have been no clear 

discernible trends in annual 

precipitation, though there will likely be 

modest increases in the winter and 

decreases of similar scale in the summer 

(Mote et al. 2019, summary p. 1). 

Warming summer temperatures paired 

with decreased summer precipitation 

may lead to increased drought risk, 

which has the potential to cause stress, 

desiccation, and even mortality in plant 

communities. Although increased 

temperatures and decreased 

precipitation during the summer 

growing season are likely to have 

negative effects on sand dune phacelia, 

whether these changes will result in 

population-level impacts in the next 40 

years is unclear given the available data. 

Therefore, we were unable to analyze 

the impacts of drought in our future 

scenarios. 

Sea level rise projections in 1-foot 

increments were available at three 

locations that span the entire range of 

sand dune phacelia (Coos Bay and Port 

Orford in Oregon, and Crescent City in 

California). One foot (0.3 meter) of sea 

level rise is projected to occur under 

RCP 8.5 by 2060 in Oregon and by 2070 

in northern California but is not 

projected to occur within this timeframe 

under RCP 4.5 (Climate Central 2020, no 

pagination). According to the sea level 

rise modeling tool we used (National 

Oceanographic and Atmospheric 

Administration 2020, no pagination), 

this amount of sea level rise under RCP 

8.5 is not projected to inundate the areas 

currently occupied by sand dune 

phacelia. Further details of the sea level 

rise analysis we conducted, including 

potential indirect effects such as erosion 

and storm surge that we were unable to 

project, are available in the SSA 

(Service 2021, Chapter 6, Appendix 2). 

Invasive Species 

As described previously in this report, 

invasive plant species, in particular 

European beachgrass and gorse, 

unequivocally represent the primary 

driver of sand dune phacelia’s status 

presently and into the future. Though 

some uncertainty remains as to how 

climate change will impact biological 

invasions into the future, it is widely 

agreed that changing climate, especially 

temperature and precipitation regimes, 

will exacerbate the invasions of many 

alien species under future conditions 

(Gervais et al. 2020, p. 1). 

Although relatively few in number, 

some studies have demonstrated the 

impacts of climate change on invasive 

species by modeling the abundance, 

distribution, spread, and impact of 

invasive species in the Pacific 

Northwest relative to climate model 

projections (Gervais et al. 2020, p. 1). 

Further, there is evidence that climateinduced expansions of invasive species 

are already underway in this region 

(Gervais et al. 2020, p. 1). The best 

available information at this time does 

not allow us to quantify the magnitude 

of these expansions, nor does it allow us 

to predict how the population dynamics 

of sand dune phacelia at occupied sites 

may be affected. However, we expect 

that the pressure currently exerted upon 

sand dune phacelia populations due to 

encroachment by invasive plant species 


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is likely to increase into the future in 

response to climate change. We expect 

the negative impacts to sand dune 

phacelia from climate-related invasive 

species expansion to be most evident 

under the higher emissions scenario 

(RCP 8.5). 

Small Population Size 

We considered populations with 

fewer than 25 individuals likely to 

become extirpated in the future. While 

small population size does not appear to 

be a threat at the species level because 

there are multiple adequately-sized 

populations found throughout the range 

of the species, very small populations 

are at elevated risk for local extirpation, 

and thus small population size is a 

threat at the population level. None of 

the sites with very small populations 

currently have habitat management 

practices to remove invasive species, 

and we did not assume new efforts 

would be initiated but acknowledge that 

extirpation of very small populations 

could be prevented with management 

intervention. 

Habitat Management 

As previously described, the removal 

of invasive species has been shown to 

be the most effective strategy for 

maintaining and increasing populations 

of sand dune phacelia. Because there are 

no management plans in place at any of 

the population sites that would ensure 

the continuation of or initiate new 

habitat management practices, and 

funding for these practices is tenuous, 

we assumed that either habitat 

management currently in place would 

continue or cease, but that management 

efforts would not increase. We also 

assumed that populations with current 

management practices in place would 

improve in condition into the future 

with continued management, and those 

without management currently in place 

would decline in condition into the 

future. 

Future Scenarios 

We considered two plausible future 

scenarios in our analysis of future 

viability of sand dune phacelia. 

Scenario 1 assumes that current habitat 

management actions to control invasive 

species will continue to occur and will 

continue to benefit sand dune phacelia 

into the future. Thus, the condition of 

populations of sand dune phacelia at 

sites that are currently receiving habitat 

management will continue to improve 

into the future. Conversely, under this 

scenario we assume that if no actions to 

control invasive species are currently 

being implemented in or adjacent to 

sand dune phacelia populations, no new 

efforts are likely to be initiated, and 

habitat conditions will subsequently 

worsen over time. Scenario 1 also 

assumes that RCP 4.5 is in effect, with 

associated effects to sea level rise and a 

moderate increase in invasive species 

expansion. Scenario 2 assumes that any 

habitat management actions that are 

presently occurring will be 

discontinued over time, and therefore 

no habitat management actions to 

control invasive species are in effect in 

the future. Scenario 2 also assumes that 

RCP 8.5 is in effect, with the associated 

effects to sea level rise and a greater 

increase in invasive species expansion. 

Therefore, these two scenarios represent 

our best understanding of the most 

optimistic and the least optimistic of 

plausible futures we can expect for sand 

dune phacelia. 

Future Resiliency, Redundancy, and 

Representation 

Rangewide, we conclude that under 

Scenario 1, nearly half (12 of 25) of all 

sand dune phacelia populations would 

become extirpated by 2060, and many of 

the remaining populations (7 of 13) 

would deteriorate to Low or Very Low 

condition. However, the condition of 

those populations that currently benefit 

from the active control of invasive 

species would increase over time due to 

improved habitat conditions, such that 

five populations would be in High or 

Very High condition under Scenario 1. 

Future population resiliency fares worse 

under Scenario 2, with well over half of 

all populations (68 percent) becoming 

extirpated, and all remaining 

populations projected to be in Low or 

Very Low condition (table 3). Thus, 

under either future scenario we 

considered, many populations will 

become extirpated, and future resiliency 

will be low among most remaining 

populations. 


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Future redundancy of sand dune 

phacelia declines under both future 

scenarios we considered. Under 

Scenario 1, only 13 of the 25 extant 

populations would exist rangewide by 

2060, with about half of those in Low 

or Very Low condition. However, five 

populations would remain in High or 

Very High condition, with at least one 

population considered in Very High 

condition in each representation unit. In 

the event of a catastrophe in a part of 

its range, sand dune phacelia would 

likely continue to exist in other parts of 

its range, albeit in low numbers and 

condition. Under Scenario 2, only eight 

populations are estimated to remain 

extant in 2060 and would be evenly 

split between Low and Very Low 

condition. Due to the greatly reduced 

number of remaining populations 

(mostly with low resiliency) under 

either future scenario, sand dune 

phacelia redundancy will be low, 

rendering the species vulnerable to 

catastrophic events within the future 

timeframe we considered. 

Representation is not expected to 

change significantly under either future 

scenario we considered. All 

representation units will retain 

populations, and each will have at least 

one population in Very High condition 

under Scenario 1. However, only 13 

populations are projected to exist 

rangewide, with over half (54 percent) 

being in Very Low or Low condition. 

Under Scenario 2, all populations are in 

Very Low or Low condition, with very 

few populations existing in any of the 

representation units. Fewer populations 

in the future would provide less 

opportunity for diversity among 

individuals, with fewer individuals 

available to contribute to the adaptive 

capacity of the species. Isolation is also 

expected to increase in the future with 

the expected reduction in size and 

number of populations on the 

landscape, further decreasing the 

likelihood of genetic exchange. These 

factors may result in a modest reduction 

in representation into the future, but 

overall, populations (though fewer) will 

still be distributed across the range of 

the species providing adequate 

representation. 

Overall, we expect the viability of the 

species to decline by varying degrees 

under the future scenarios considered. 

Persistence of the two populations that 

contain 89 percent of known 

individuals, even under the more 


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TABLE 3 .-FUTURE CONDITION OF EXTANT SAND DUNE PHACELIA POPULATIONS. 

Representation 

Unit Population 

-2.r.e~on - North !1,~cific Dunes Go!_C_ours_e __ _ 

.. Oregon -North Bandon Prnserve & Golf Course, 

2!:~on - North Bandon State Natural Area 

Oregon-. North LoSiLake, __ _ 

.. Oregon - North Fourmile Cree_k __ 

-Or,egon - North Floras Lake 

. Oregon - North Cape Blanco State Par~ _ 

Oregon - North Paradise Point 

Oregon - North Hubbard Creek 

,Oregon - South Op.._hir_· _Dun __ es ______ _ 

Oregon - South N esika Beach 

.. Oregon~ South ... !1~!?1 ~er_M_outh _______ , 

. .Q!.e~~~:. S~~. Pistol River State Park - _ So~ 

_ Oregon - South Lone Ranch Beach 

Oregon - South Crissey Fields State Park 

California N. Kellogg Roa_d ______ ., 

California Pacific Shores Subdivision 

California South Lake Tolowa Restoration 

California Old Mill Road 

California NNW ofDead Lake 

California East Dead Lake 

California N End Del Norte Cty. Airport 

Californi~'... ,,NW End Del Norte Cty. Airport 

California Point St. George 

California Pebble Beach 

Current S . 1 S . 2 

C di . cenano cenano 

on tion 

Extirpated Extirpated 

Extirpated Extirpated 

Extirpated Extirpated 

Extirpated Extirpated 

. ated Extirpated 

Extirpated 
16334 Federal Register / Vol. 87, No. 55 / Tuesday, March 22, 2022 / Proposed Rules 

favorable future scenario considered, 

appears to depend upon continued 

removal of introduced, invasive species. 

By mid-century (roughly 2060), we 

expect sand dune phacelia will still 

occur on the landscape, but likely with 

a significantly reduced number of 

sufficiently resilient populations that 

are even more sparsely distributed 

across the historical range of the 

species. 

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. 

Determination of Sand Dune Phacelia 

Status 

Section 4 of the Act (16 U.S.C. 1533) 

and its implementing regulations (50 

CFR part 424) set forth the procedures 

for determining whether a species meets 

the definition of an ‘‘endangered 

species’’ or a ‘‘threatened species.’’ The 

Act defines an ‘‘endangered species’’ as 

a species in danger of extinction 

throughout all or a significant portion of 

its range, and a ‘‘threatened species’’ as 

a species likely to become an 

endangered species within the 

foreseeable future throughout all or a 

significant portion of its range. The Act 

requires that we determine whether a 

species meets the definition of 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. 

Status Throughout All of Its Range 

We carefully assessed the best 

scientific and commercial information 

available regarding the past, present, 

and future stressors to sand dune 

phacelia. The potential stressors we 

considered were: Invasive species 

encroachment and competition (Factors 

A and E); recreational impacts from 

OHV use and trampling (Factor A); 

coastal development (Factor A); 

livestock grazing (Factor A); regulatory 

and voluntary conservation efforts 

(Factor D); climate change impacts 

including sea level rise and drought 

(Factor E); small population size (Factor 

E); and pollinator decline (Factor E). 

There is no evidence that overutilization 

(Factor B) or disease and predation 

(Factor C) are impacting sand dune 

phacelia. We evaluated each potential 

stressor to determine which stressors 

were likely to be drivers of the species’ 

current and future condition, and found 

that invasive species, climate change, 

and small population size are the 

primary threats to the species. 

There are 25 naturally occurring, 

extant populations of sand dune 

phacelia. Nearly 70 percent (17) of these 

populations are currently in low 

condition according to our assessment, 

and nearly half (12) of the populations 

have fewer than 25 individuals. 

However, extant populations are 

distributed across the historical range of 

the species, and there remains at least 

one highly resilient population and one 

moderately resilient population in each 

of the three representative areas (in the 

northern, middle, and southern regions 

of the range). Populations that are 

currently in poor condition, many of 

which have fewer than 25 individuals, 

are at risk of extirpation without 

management intervention. Many of 

these populations, especially those with 

very low abundance, may never be 

likely to contribute meaningfully to the 

species’ viability. However, even 

without the very small (fewer than 25 

individuals) populations on the 

landscape, the species would still 

maintain 13 populations across the 

range, with 8 of those populations being 

in moderate or high condition and 

evenly distributed across all 3 

representation units. The distribution 

and maintenance of sufficiently resilient 

populations, albeit few of them, across 

the historical range of the species 

indicates an adequate degree of 

redundancy, making it unlikely that a 

single catastrophic event would lead to 

the extirpation of all extant populations. 

While we have little evidence of 

diversity among members of the species, 

sand dune phacelia is a relatively 

localized endemic inhabiting a narrow 

ecological niche, so broad diversity is 

not necessarily expected. Populations of 

sand dune phacelia remain distributed 

across the three representation units and 

throughout its known historical range, 

and therefore the species is currently 

represented across the breadth of any 

ecological diversity that exists within its 

range. 

We know that the most influential 

threat to sand dune phacelia, 

encroachment by invasive species 

(Factors A and E), can be successfully 

mitigated with active habitat 

management. Effective habitat 

management is currently ongoing at 

several population sites, including at 

the largest population strongholds at the 

northern and southern extents of the 

species’ range (Bandon Preserve and 

Golf Course in Oregon and Tolowa 

Dunes in California). It is also possible 

that if management efforts continue or 

increase, they could promote the 

increase and expansion of populations 

into the future. 

Because of the presence of multiple 

populations in moderate to high 

condition (or with adequate resiliency) 

distributed across all regions of the 

species’ historical range (redundancy) 

and across the breadth of ecological 

conditions inhabited by the species 

(representation), as well as the success 

of current conservation efforts to 

mitigate the primary threat (invasive 

species) at population strongholds, we 

determined that sand dune phacelia is 

not currently in danger of extinction 

throughout its range. 

Upon determining that sand dune 

phacelia is not at risk of extinction now, 

we consider whether it is likely to 

become endangered in the foreseeable 

future. According to our assessment of 

plausible future scenarios, we conclude 

that the species is likely to become 

endangered within the foreseeable 

future throughout all of its range 

through decreased resiliency, 

redundancy, and representation. For the 

purposes of this determination, the 

foreseeable future is considered to be 

approximately 40 years from now (or 

approximately 2060), based on the 

timeframe with which we could most 

reliably project the impacts of climate 

change and the species’ response to 

those impacts. 

As previously noted, the primary 

driver of the sand dune phacelia’s status 

is habitat loss due to encroachment and 

competition by invasive species (Factors 

A and E). This species is considered 

management-dependent, relying on 

active and continuous removal of 

invasive species such as European 

beachgrass and gorse to maintain habitat 


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conditions to support sand dune 

phacelia. Invasive species removal, 

especially that which is effective and 

consistent enough to maintain sand 

dune phacelia populations over time, is 

costly and labor-intensive, and requires 

a significant commitment of resources. 

Currently, while invasive species 

removal efforts are responsible for 

maintaining the few (8 of 25) sand dune 

phacelia populations that are in 

moderate to high condition, no formal 

commitments or agreements are in place 

to continue these efforts, and many of 

these efforts are dependent upon the 

will and resources of volunteer groups 

or private landowners. The remaining 

strongholds of sand dune phacelia 

would likely decline quickly in the 

absence of effective habitat management 

efforts that are currently ongoing. 

Specifically, in the most severe future 

scenario we considered, which includes 

the cessation of all management efforts 

into the future, our analysis projects the 

extirpation of most (17) populations in 

the future, with those remaining (8) 

declining to low or very low condition. 

Climate change (Factor E) may elevate 

the risk of drought, lead to increased 

erosion caused by sea level rise and the 

increased frequency and magnitude of 

storm surge, or potentially result in 

other negative influences to sand dune 

phacelia, but we were unable to reliably 

project how these influences would 

impact the species in our future 

analysis. Climate change is expected to 

exacerbate the threat of invasive species 

into the future, regardless of which 

emissions scenarios we consider. Given 

the severity of the threat of invasive 

species and the tenuous nature of 

habitat management into the future, the 

synergistic effects of climate change and 

invasive species on sand dune phacelia 

could be significant regardless of the 

magnitude of climate change impacts on 

their own. 

Small population size (Factor E) is a 

threat that affects nearly half of the 

extant sand dune phacelia populations. 

These 12 populations have fewer than 

25 individuals and have no programs in 

place or conservation efforts ongoing to 

ameliorate the threat of invasive species, 

which is the primary cause of low sand 

dune phacelia abundance at these sites. 

Without the implementation of habitat 

management practices at these sites, we 

expect these very small populations to 

become extirpated in the future. 

Regulatory mechanisms (Factor D) 

and voluntary conservation efforts by 

the States of Oregon and California, 

BLM, volunteer groups, and private 

landowners, provide benefit to sand 

dune phacelia at the affected population 

sites, mostly through invasive species 

removal efforts and to some degree 

augmentation and reintroduction efforts. 

However, while these efforts have 

helped reduce the impacts of invasive 

species and small population size 

locally at certain populations, these 

influences remain prominent threats to 

sand dune phacelia and continue to 

affect the species as a whole. 

Due to the continuation of threats at 

increasing levels into the future, we 

anticipate a significant reduction in the 

distribution of sand dune phacelia as 

the result of the extirpation of multiple 

populations. Even in the most 

optimistic future scenario we 

considered, nearly half of the extant 

populations of sand dune phacelia 

would likely become extirpated, with 

only six populations remaining with 

moderate to high/very high resiliency. 

The less optimistic future projection 

would result in most populations 

becoming extirpated, and any remaining 

populations would be in low or very 

low condition. These types of declines 

illustrate a loss of resiliency among 

most populations, as well as a 

significant reduction in redundancy and 

representation, with fewer populations 

on the landscape to withstand 

catastrophic events and maintain 

adaptive capacity. Remaining 

populations in either future scenario 

will have lower resiliency, leading to 

lower overall redundancy and 

representation. Even in the most 

optimistic future scenario, the species 

will have low viability and is therefore 

at risk of becoming endangered within 

the foreseeable future. 

Thus, after assessing the best available 

information, we conclude that sand 

dune phacelia is likely to become in 

danger of extinction within the 

foreseeable future throughout all of its 

range. 

Status Throughout a Significant Portion 

of Its Range 

Under the Act and our implementing 

regulations, a species may warrant 

listing if it is in danger of extinction or 

likely to become so in the foreseeable 

future throughout all or a significant 

portion of its range. The court in Center 

for Biological Diversity v. Everson, 2020 

WL 437289 (D.D.C. Jan. 28, 2020) 

(Center for Biological Diversity), vacated 

the aspect of the Final Policy on 

Interpretation of the Phrase ‘‘Significant 

Portion of Its Range’’ in the Endangered 

Species Act’s Definitions of 

‘‘Endangered Species’’ and ‘‘Threatened 

Species’’ (79 FR 37578; July 1, 2014) 

that provided that the Service does not 

undertake an analysis of significant 

portions of a species’ range if the 

species warrants listing as threatened 

throughout all of its range. Therefore, 

we proceed to evaluating whether the 

species is endangered in a significant 

portion of its range—that is, whether 

there is any portion of the species’ range 

for which both (1) the portion is 

significant; and (2) the species is in 

danger of extinction in that portion. 

Depending on the case, it might be more 

efficient for us to address the 

‘‘significance’’ question or the ‘‘status’’ 

question first. We can choose to address 

either question first. Regardless of 

which question we address first, if we 

reach a negative answer with respect to 

the first question that we address, we do 

not need to evaluate the other question 

for that portion of the species’ range. 

Following the court’s holding in 

Center for Biological Diversity, we now 

consider whether there are any 

significant portions of the species’ range 

where the species is in danger of 

extinction now (i.e., endangered). In 

undertaking this analysis for sand dune 

phacelia, we choose to address the 

status question first—we consider 

information pertaining to the geographic 

distribution of both the species and the 

threats that the species faces to identify 

any portions of the range where the 

species is endangered. 

For sand dune phacelia, we 

considered whether the threats are 

geographically concentrated in any 

portion of the species’ range at a 

biologically meaningful scale. We 

examined the threats of invasive species 

and of climate change, including 

cumulative effects. 

The threat of invasive species is 

pervasive throughout the range of sand 

dune phacelia. The type of invasive 

species may vary regionally (gorse, for 

example, is more prevalent in the 

northern extent of the range), but the 

threat of invasive species encroachment 

in general is equal in severity 

throughout the range. Similarly, both 

the efficacy of mitigating the threat of 

invasive species through habitat 

restoration, and the uncertainty related 

to funding availability to do so, appear 

consistent throughout the species’ 

range. 

The effects of climate change appear 

to be similar across the historical range 

of sand dune phacelia. Increases in 

temperature and changes in seasonal 

precipitation that could increase the risk 

of drought in the future are expected to 

occur to a similar magnitude across the 

range of the species. Storm surge, which 

can lead to flooding and erosion at 

coastal sites, is also expected to increase 

with climate change, and we have no 

data to indicate that these impacts 

would not be approximately equivalent 

across the range of sand dune phacelia. 


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Sea level rise projections are also nearly 

identical across the coastal habitat 

occupied by sand dune phacelia. 

Specifically, RCP 8.5 indicates that the 

impacts of sea level rise are essentially 

equal across all sites: Within the 

foreseeable future all sites will 

experience a 1-foot (0.3 m) or less 

increase in sea level rise, which will not 

inundate any of the population sites. 

The synergistic effects of climate change 

and invasive species, with biological 

invasions being facilitated by climate 

change, are also expected to occur in 

approximately equal magnitude 

throughout the range of sand dune 

phacelia and likely represent the more 

influential effect of climate change on 

the species given that sea level rise is 

not projected to inundate any extant 

population sites. 

The threat of small population size 

also appears to be distributed 

throughout the range, with lowabundance populations throughout the 

range and distributed across all three 

representation units. 

While there may be some variation in 

the source and intensity of each 

individual threat at each population 

location, we found no concentration of 

threats in any portion of the sand dune 

phacelia’s range at a biologically 

meaningful scale. Thus, there are no 

portions of the species’ range where the 

threats facing the species are 

concentrated to a degree where the 

species in that portion would have a 

different status from its rangewide 

status. Therefore, no portion of the 

species’ range provides a basis for 

determining that the species is in danger 

of extinction in a significant portion of 

its range, and we determine that the 

species is likely to become in danger of 

extinction within the foreseeable future 

throughout all of its range. This does not 

conflict with the courts’ holdings in 

Desert Survivors v. Department of the 

Interior, 331 F.Supp.3d 1131, 1136 (N.D. 

Cal. 2018), and Center for Biological 

Diversity v. Jewell, 248 F. Supp. 3d, 946, 

959 (D. Ariz. 2017) because, in reaching 

this conclusion, we did not need to 

consider whether any portions are 

significant and therefore did not apply 

the aspects of the Final Policy’s 

definition of ‘‘significant’’ that those 

court decisions held were invalid. 

Determination of Status 

Our review of the best available 

scientific and commercial information 

indicates that the sand dune phacelia 

meets the definition of a threatened 

species. Therefore, we propose to list 

the sand dune phacelia as a threatened 

species in accordance with sections 

3(20) and 4(a)(1) of the Act. 

Available Conservation Measures 

Conservation measures provided to 

species listed as endangered or 

threatened 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, selfsustaining, and functioning components 

of their ecosystems. 

Recovery planning consists of 

preparing draft and final recovery plans, 

beginning with the development of a 

recovery outline and making it available 

to the public within 30 days of a final 

listing determination. The recovery 

outline guides the immediate 

implementation of urgent recovery 

actions and describes the process to be 

used to develop a recovery plan. 

Revisions of the plan may be done to 

address continuing or new threats to the 

species, as new substantive information 

becomes available. The recovery plan 

also identifies recovery criteria for 

review of when a species may be ready 

for reclassification from endangered to 

threatened (‘‘downlisting’’) or removal 

from protected status (‘‘delisting’’), and 

methods for monitoring recovery 

progress. Recovery plans also establish 

a framework for agencies to coordinate 

their recovery efforts and provide 

estimates of the cost of implementing 

recovery tasks. Recovery teams 

(composed of species experts, Federal 

and State agencies, nongovernmental 

organizations, and stakeholders) are 

often established to develop recovery 

plans. When completed, the recovery 

outline, draft recovery plan, and the 

final recovery plan will be available on 

our website (https://www.fws.gov/ 

endangered), or from our Oregon Fish 

and Wildlife 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. 

If this species is listed, funding for 

recovery actions will be available from 

a variety of sources, including Federal 

budgets, State programs, and cost-share 

grants for non-Federal landowners, the 

academic community, and 

nongovernmental organizations. In 

addition, pursuant to section 6 of the 

Act, the States of Oregon and California 

would be eligible for Federal funds to 

implement management actions that 

promote the protection or recovery of 

the sand dune phacelia. Information on 

our grant programs that are available to 

aid species recovery can be found at: 

https://www.fws.gov/grants. 

Although the sand dune phacelia is 

only proposed for listing under the Act 

at this time, please let us know if you 

are interested in participating in 

recovery efforts for this species. 

Additionally, we invite you to submit 

any new information on this species 

whenever it becomes available and any 

information you may have for recovery 

planning purposes (see FOR FURTHER

INFORMATION CONTACT). 

Section 7(a) of the Act requires 

Federal agencies to evaluate their 

actions with respect to any species that 

is proposed or listed as an endangered 

or threatened species and with respect 

to its critical habitat, if any is 

designated. Regulations implementing 

this interagency cooperation provision 

of the Act are codified at 50 CFR part 

402. Section 7(a)(4) of the Act requires 

Federal agencies to confer with the 

Service on any action that is likely to 

jeopardize the continued existence of a 

species proposed for listing or result in 

destruction or adverse modification of 

proposed critical habitat. If a species is 

listed subsequently, section 7(a)(2) of 


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the Act requires Federal agencies to 

ensure that activities they authorize, 

fund, or carry out are not likely to 

jeopardize the continued existence of 

the species or destroy or adversely 

modify its critical habitat. If a Federal 

action may affect a listed species or its 

critical habitat, the responsible Federal 

agency must enter into consultation 

with the Service. 

Federal agency actions within the 

species’ habitat that may require 

conference or consultation or both as 

described in the preceding paragraph 

include management and any other 

landscape-altering activities on Federal 

lands administered by the Bureau of 

Land Management. 

It is our policy, as published in the 

Federal Register on July 1, 1994 (59 FR 

34272), to identify to the maximum 

extent practicable at the time a species 

is listed, those activities that would or 

would not constitute a violation of 

section 9 of the Act. The intent of this 

policy is to increase public awareness of 

the effect of a proposed listing on 

proposed and ongoing activities within 

the range of the species proposed for 

listing. The discussion below regarding 

protective regulations under section 4(d) 

of the Act complies with our policy. 

II. Proposed Rule Issued Under Section 

4(d) of the Act 

Background 

Section 4(d) of the Act contains two 

sentences. The first sentence states that 

the Secretary shall issue such 

regulations as she deems necessary and 

advisable to provide for the 

conservation of species listed as 

threatened. The U.S. Supreme Court has 

noted that statutory language like 

‘‘necessary and advisable’’ demonstrates 

a large degree of deference to the agency 

(see Webster v. Doe, 486 U.S. 592 

(1988)). Conservation is defined in the 

Act to mean the use of all methods and 

procedures which are necessary to bring 

any endangered species or threatened 

species to the point at which the 

measures provided pursuant to the Act 

are no longer necessary. Additionally, 

the second sentence of section 4(d) of 

the Act states that the Secretary may by 

regulation prohibit with respect to any 

threatened species any act prohibited 

under section 9(a)(1), in the case of fish 

or wildlife, or section 9(a)(2), in the case 

of plants. Thus, the combination of the 

two sentences of section 4(d) provides 

the Secretary with wide latitude of 

discretion to select and promulgate 

appropriate regulations tailored to the 

specific conservation needs of the 

threatened species. The second sentence 

grants particularly broad discretion to 

the Service when adopting the 

prohibitions under section 9. 

The courts have recognized the extent 

of the Secretary’s discretion under this 

standard to develop rules that are 

appropriate for the conservation of a 

species. For example, courts have 

upheld rules developed under section 

4(d) as a valid exercise of agency 

authority where they prohibited take of 

threatened wildlife, or include a limited 

taking prohibition (see Alsea Valley 

Alliance v. Lautenbacher, 2007 U.S. 

Dist. Lexis 60203 (D. Or. 2007); 

Washington Environmental Council v. 

National Marine Fisheries Service, 2002 

U.S. Dist. Lexis 5432 (W.D. Wash. 

2002)). Courts have also upheld 4(d) 

rules that do not address all of the 

threats a species faces (see State of 

Louisiana v. Verity, 853 F.2d 322 (5th 

Cir. 1988)). As noted in the legislative 

history when the Act was initially 

enacted, ‘‘once an animal is on the 

threatened list, the Secretary has an 

almost infinite number of options 

available to him [or her] with regard to 

the permitted activities for those 

species. He [or she] may, for example, 

permit taking, but not importation of 

such species, or he [or she] may choose 

to forbid both taking and importation 

but allow the transportation of such 

species’’ (H.R. Rep. No. 412, 93rd Cong., 

1st Sess. 1973). 

Exercising this authority under 

section 4(d), we have developed a 

proposed rule that is designed to 

address sand dune phacelia 

conservation needs. Although the 

statute does not require us to make a 

‘‘necessary and advisable’’ finding with 

respect to the adoption of specific 

prohibitions under section 9, we find 

that this rule as a whole satisfies the 

requirement in section 4(d) of the Act to 

issue regulations deemed necessary and 

advisable to provide for the 

conservation of sand dune phacelia. As 

discussed above under Summary of 

Biological Status and Threats, we have 

concluded that sand dune phacelia is 

likely to become in danger of extinction 

within the foreseeable future primarily 

due to encroachment by invasive 

species, small population size, and the 

effects of climate change. The 

provisions of this proposed 4(d) rule 

would promote conservation of sand 

dune phacelia by encouraging 

management of the landscape in ways 

that meet the conservation needs of the 

sand dune phacelia. The provisions of 

this proposed rule are one of many tools 

that we would use to promote the 

conservation of sand dune phacelia. 

This proposed 4(d) rule would apply 

only if and when we make final the 

listing of the sand dune phacelia as a 

threatened species. 

Section 7(a)(2) of the Act requires 

Federal agencies, including the Service, 

to ensure that any action they fund, 

authorize, or carry out is not likely to 

jeopardize the continued existence of 

any endangered species or threatened 

species or result in the destruction or 

adverse modification of designated 

critical habitat of such species. In 

addition, section 7(a)(4) of the Act 

requires Federal agencies to confer with 

the Service on any agency action which 

is likely to jeopardize the continued 

existence of any species proposed to be 

listed under the Act or result in the 

destruction or adverse modification of 

proposed critical habitat. 

If a Federal action may affect a listed 

species or its critical habitat, the 

responsible Federal agency (action 

agency) must enter into consultation 

with us. Examples of actions that are 

subject to the section 7 consultation 

process are actions on State, Tribal, 

local, or private lands that require a 

Federal permit (such as a permit from 

the U.S. Army Corps of Engineers under 

section 404 of the Clean Water Act (33 

U.S.C. 1251 et seq.) or a permit from the 

Service under section 10 of the Act) or 

that involve some other Federal action 

(such as funding from the Federal 

Highway Administration, Federal 

Aviation Administration, or the Federal 

Emergency Management Agency). 

Federal actions not affecting listed 

species or critical habitat—and actions 

on State, Tribal, local, or private lands 

that are not federally funded, 

authorized, or carried out by a Federal 

agency—do not require section 7 

consultation. 

This obligation does not change in 

any way for a threatened species with a 

species-specific 4(d) rule. Actions that 

result in a determination by a Federal 

agency of ‘‘not likely to adversely 

affect’’ continue to require the Service’s 

written concurrence and actions that are 

‘‘likely to adversely affect’’ a species 

require formal consultation and the 

formulation of a biological opinion. 

Provisions of the Proposed 4(d) Rule 

This proposed 4(d) rule would 

provide for the conservation of the sand 

dune phacelia by prohibiting the 

following activities applicable to an 

endangered plant, except as otherwise 

authorized or permitted: Import or 

export; certain acts related to removing, 

damaging, and destroying on areas 

under Federal jurisdiction; delivery, 

receipt, transport, or shipment in 

interstate or foreign commerce in the 

course of commercial activity; and sale 


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or offering for sale in interstate or 

foreign commerce. 

As discussed above under Summary 

of Biological Status and Threats, 

encroachment by native and nonnative 

invasive species (Factors A and E), 

small population size (Factor E), and 

climate change (Factor E) affect the 

status of sand dune phacelia. 

Additionally, a range of activities have 

the potential to negatively affect 

individual sand dune phacelia, 

including recreational impacts such as 

off-road vehicle use and inadvertent 

trampling through pedestrian or 

equestrian activities. To protect the 

species from these stressors, in addition 

to the protections that apply to Federal 

lands, the 4(d) rule would prohibit a 

person from removing, cutting, digging 

up, or damaging or destroying the 

species on non-Federal lands in 

knowing violation of any law or 

regulation of any State or in the course 

of any violation of a State criminal 

trespass law. As most populations of 

sand dune phacelia occur off Federal 

land, these protections in the 4(d) rule 

are key to its effectiveness. For example, 

any damage to the species on nonFederal land in violation of a State offhighway vehicle law would be 

prohibited by the 4(d) rule. 

Additionally, any damage incurred by 

the species due to criminal trespass on 

non-Federal lands would similarly 

violate the proposed 4(d) rule. 

Regulating these activities will help 

preserve the species’ remaining 

populations, slow their rate of decline, 

and decrease synergistic, negative 

effects from other stressors. As a whole, 

the proposed 4(d) rule would help in 

the efforts to recover sand dune phacelia 

by limiting specific actions that damage 

individual populations. 

We may issue permits to carry out 

otherwise prohibited activities, 

including those described above, 

involving threatened plants under 

certain circumstances. Regulations 

governing permits for threatened plants 

are codified at 50 CFR 17.72, which 

states that the Director may issue a 

permit authorizing any activity 

otherwise prohibited with regard to 

threatened species. That regulation also 

states that the permit shall be governed 

by the provisions of 50 CFR 17.72 

unless a special rule applicable to the 

plant is provided in 50 CFR 17.73 to 

17.78. We interpret that second sentence 

to mean that permits for threatened 

species are governed by the provisions 

of 50 CFR 17.72 unless a special rule, 

which we have defined to mean a 

species-specific 4(d) rule, provides 

otherwise. We recently promulgated 

revisions to 50 CFR 17.71 providing that 

50 CFR 17.71 will no longer apply to 

plants listed as threatened in the future. 

We did not intend for those revisions to 

limit or alter the applicability of the 

permitting provisions in 50 CFR 17.72, 

or to require that every species-specific 

4(d) rule spell out any permitting 

provisions that apply to that species and 

species-specific 4(d) rule. 

To the contrary, we anticipate that 

permitting provisions would generally 

be similar or identical for most species, 

so applying the provisions of 50 CFR 

17.72 unless a species-specific 4(d) rule 

provides otherwise would likely avoid 

substantial duplication. Moreover, this 

interpretation brings 50 CFR 17.72 in 

line with the comparable provision for 

wildlife at 50 CFR 17.32, in which the 

second sentence states that the permit 

shall be governed by the provisions of 

50 CFR 17.32 unless a special rule 

applicable to the wildlife, appearing in 

50 CFR 17.40 to 17.48, provides 

otherwise. Under 50 CFR 17.72 with 

regard to threatened plants, a permit 

may be issued for the following 

purposes: for scientific purposes, to 

enhance propagation or survival, for 

economic hardship, for botanical or 

horticultural exhibition, for educational 

purposes, or for other purposes 

consistent with the purposes and policy 

of the Act. Additional statutory 

exemptions from the prohibitions are 

found in sections 9 and 10 of the Act. 

We recognize the special and unique 

relationship with our State natural 

resource agency partners in contributing 

to conservation of listed species. State 

agencies often possess scientific data 

and valuable expertise on the status and 

distribution of endangered, threatened, 

and candidate species of wildlife and 

plants. State agencies, because of their 

authorities and their close working 

relationships with local governments 

and landowners, are in a unique 

position to assist the Service in 

implementing all aspects of the Act. In 

this regard, section 6 of the Act provides 

that the Service shall cooperate to the 

maximum extent practicable with the 

States in carrying out programs 

authorized by the Act. Therefore, any 

qualified employee or agent of a State 

conservation agency that is a party to a 

cooperative agreement with the Service 

in accordance with section 6(c) of the 

Act, who is designated by his or her 

agency for such purposes, would be able 

to conduct activities designed to 

conserve sand dune phacelia that may 

result in otherwise prohibited activities 

without additional authorization. 

Nothing in this proposed 4(d) rule 

would change in any way the recovery 

planning provisions of section 4(f) of the 

Act, the consultation requirements 

under section 7 of the Act, or the ability 

of the Service to enter into partnerships 

for the management and protection of 

sand dune phacelia. However, 

interagency cooperation may be further 

streamlined through planned 

programmatic consultations for the 

species between Federal agencies and 

the Service, where appropriate. We ask 

the public, particularly State agencies 

and other interested stakeholders that 

may be affected by the proposed 4(d) 

rule, to provide comments and 

suggestions regarding additional 

guidance and methods that the Service 

could provide or use, respectively, to 

streamline the implementation of this 

proposed 4(d) rule (see Information 

Requested, above). 

III. Critical Habitat 

Background 

Critical habitat is defined in section 3 

of the Act as: 

(1) The specific areas within the 

geographical area occupied by the 

species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features 

(a) Essential to the conservation of the 

species, and 

(b) Which may require special 

management considerations or 

protection; and 

(2) Specific areas outside the 

geographical area occupied by the 

species at the time it is listed, upon a 

determination that such areas are 

essential for the conservation of the 

species. 

Our regulations at 50 CFR 424.02 

define the geographical area occupied 

by the species as an area that may 

generally be delineated around species’ 

occurrences, as determined by the 

Secretary (i.e., range). Such areas may 

include those areas used throughout all 

or part of the species’ life cycle, even if 

not used on a regular basis (e.g., 

migratory corridors, seasonal habitats, 

and habitats used periodically, but not 

solely by vagrant individuals). 

Additionally, our regulations at 50 CFR 

424.02 define the word ‘‘habitat,’’ for 

the purposes of designating critical 

habitat only, as the abiotic and biotic 

setting that currently or periodically 

contains the resources and conditions 

necessary to support one or more life 

processes of a species. 

Conservation, as defined under 

section 3 of the Act, means 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 


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methods and procedures include, but 

are not limited to, all activities 

associated with scientific resources 

management such as research, census, 

law enforcement, habitat acquisition 

and maintenance, propagation, live 

trapping, and transplantation, and, in 

the extraordinary case where population 

pressures within a given ecosystem 

cannot be otherwise relieved, may 

include regulated taking. 

Critical habitat receives protection 

under section 7 of the Act through the 

requirement that Federal agencies 

ensure, in consultation with the Service, 

that any action they authorize, fund, or 

carry out is not likely to result in the 

destruction or adverse modification of 

critical habitat. The designation of 

critical habitat does not affect land 

ownership or establish a refuge, 

wilderness, reserve, preserve, or other 

conservation area. Such designation also 

does not allow the government or public 

to access private lands. Such 

designation does not require 

implementation of restoration, recovery, 

or enhancement measures by nonFederal landowners. Where a landowner 

requests Federal agency funding or 

authorization for an action that may 

affect a listed species or critical habitat, 

the Federal agency would be required to 

consult with the Service under section 

7(a)(2) of the Act. However, even if the 

Service were to conclude that the 

proposed activity would result in 

destruction or adverse modification of 

the critical habitat, the Federal action 

agency and the landowner are not 

required to abandon the proposed 

activity, or to restore or recover the 

species; instead, they must implement 

‘‘reasonable and prudent alternatives’’ 

to avoid destruction or adverse 

modification of critical habitat. 

Under the first prong of the Act’s 

definition of critical habitat, areas 

within the geographical area occupied 

by the species at the time it was listed 

are included in a critical habitat 

designation if they contain physical or 

biological features (1) which are 

essential to the conservation of the 

species and (2) which may require 

special management considerations or 

protection. For these areas, critical 

habitat designations identify, to the 

extent known using the best scientific 

and commercial data available, those 

physical or biological features that are 

essential to the conservation of the 

species (such as space, food, cover, and 

protected habitat). In identifying those 

physical or biological features that occur 

in specific 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, prey, vegetation, 

symbiotic species, or other features. A 

feature may be a single habitat 

characteristic or a more complex 

combination of habitat characteristics. 

Features may include habitat 

characteristics that support ephemeral 

or dynamic habitat conditions. Features 

may also be expressed in terms relating 

to principles of conservation biology, 

such as patch size, distribution 

distances, and connectivity. 

Under the second prong of the Act’s 

definition of critical habitat, we can 

designate critical habitat in areas 

outside the geographical area occupied 

by the species at the time it is listed, 

upon a determination that such areas 

are essential for the conservation of the 

species. The implementing regulations 

at 50 CFR 424.12(b)(2) further delineate 

unoccupied critical habitat by setting 

out three specific parameters: (1) When 

designating critical habitat, the 

Secretary will first evaluate areas 

occupied by the species; (2) the 

Secretary will only consider unoccupied 

areas to be essential where a critical 

habitat designation limited to 

geographical areas occupied by the 

species would be inadequate to ensure 

the conservation of the species; and (3) 

for an unoccupied area to be considered 

essential, the Secretary must determine 

that there is a reasonable certainty both 

that the area will contribute to the 

conservation of the species and that the 

area contains one or more of those 

physical or biological features essential 

to the conservation of the species. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific data available. 

Further, our Policy on Information 

Standards Under the Endangered 

Species Act (published in the Federal 

Register on July 1, 1994 (59 FR 34271)), 

the Information Quality Act (section 515 

of the Treasury and General 

Government Appropriations Act for 

Fiscal Year 2001 (Pub. L. 106–554; H.R. 

5658)), and our associated Information 

Quality Guidelines provide criteria, 

establish procedures, and provide 

guidance to ensure that our decisions 

are based on the best scientific data 

available. They require our biologists, to 

the extent consistent with the Act and 

with the use of the best scientific data 

available, to use primary and original 

sources of information as the basis for 

recommendations to designate critical 

habitat. 

When we are determining which areas 

should be designated as critical habitat, 

our primary source of information is 

generally the information from the SSA 

report and information developed 

during the listing process for the 

species. Additional information sources 

may include any generalized 

conservation strategy, criteria, or outline 

that may have been developed for the 

species; the recovery plan for the 

species; articles in peer-reviewed 

journals; conservation plans developed 

by States and counties; scientific status 

surveys and studies; biological 

assessments; other unpublished 

materials; or experts’ opinions or 

personal knowledge. 

As the regulatory definition of 

‘‘habitat’’ reflects (50 CFR 424.02), 

habitat is dynamic, and species may 

move from one area to another over 

time. We recognize that critical habitat 

designated at a particular point in time 

may not include all of the habitat areas 

that we may later determine are 

necessary for the recovery of the 

species. For these reasons, a critical 

habitat designation does not signal that 

habitat outside the designated area is 

unimportant or may not be needed for 

recovery of the species. Areas that are 

important to the conservation of the 

species, both inside and outside the 

critical habitat designation, will 

continue to be subject to: (1) 

Conservation actions implemented 

under section 7(a)(1) of the Act; (2) 

regulatory protections afforded by the 

requirement in section 7(a)(2) of the Act 

for Federal agencies to ensure their 

actions are not likely to jeopardize the 

continued existence of any endangered 

or threatened species; and (3) the 

prohibitions found in section 9 of the 

Act. Federally funded or permitted 

projects affecting listed species outside 

their designated critical habitat areas 

may still result in jeopardy findings in 

some cases. These protections and 

conservation tools will continue to 

contribute to recovery of 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. 

Prudency Determination 

Section 4(a)(3) of the Act, as 

amended, and implementing regulations 

(50 CFR 424.12) require that, to the 

maximum extent prudent and 

determinable, the Secretary shall 

designate critical habitat at the time the 

species is determined to be an 

endangered or threatened species. Our 

regulations (50 CFR 424.12(a)(1)) state 

that the Secretary may, but is not 


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required to, determine that a 

designation would not be prudent in the 

following circumstances: 

(i) The species is threatened by taking 

or other human activity and 

identification of critical habitat can be 

expected to increase the degree of such 

threat to the species; 

(ii) The present or threatened 

destruction, modification, or 

curtailment of a species’ habitat or range 

is not a threat to the species, or threats 

to the species’ habitat stem solely from 

causes that cannot be addressed through 

management actions resulting from 

consultations under section 7(a)(2) of 

the Act; 

(iii) Areas within the jurisdiction of 

the United States provide no more than 

negligible conservation value, if any, for 

a species occurring primarily outside 

the jurisdiction of the United States; 

(iv) No areas meet the definition of 

critical habitat; or 

(v) The Secretary otherwise 

determines that designation of critical 

habitat would not be prudent based on 

the best scientific data available. 

As discussed earlier in this document, 

there is currently no imminent threat of 

collection or vandalism identified under 

Factor B for this species, and 

identification and mapping of critical 

habitat is not expected to initiate any 

such threat. In our SSA report and 

proposed listing determination for sand 

dune phacelia, we determined that the 

present or threatened destruction, 

modification, or curtailment of habitat 

or range is a threat to sand dune 

phacelia and that those threats in some 

way can be addressed by section 7(a)(2) 

consultation measures. The species 

occurs wholly in the jurisdiction of the 

United States, and we are able to 

identify areas that meet the definition of 

critical habitat. Therefore, because none 

of the circumstances enumerated in our 

regulations at 50 CFR 424.12(a)(1) have 

been met and because the Secretary has 

not identified other circumstances for 

which this designation of critical habitat 

would be not prudent, we have 

determined that the designation of 

critical habitat is prudent for sand dune 

phacelia. 

Critical Habitat Determinability 

Having determined that designation is 

prudent, under section 4(a)(3) of the Act 

we must find whether critical habitat for 

the sand dune phacelia is determinable. 

Our regulations at 50 CFR 424.12(a)(2) 

state that critical habitat is not 

determinable when one or both of the 

following situations exist: (i) Data 

sufficient to perform required analyses 

are lacking, or (ii) the biological needs 

of the species are not sufficiently well 

known to identify any area that meets 

the definition of ‘‘critical habitat.’’ 

When critical habitat is not 

determinable, the Act allows the Service 

an additional year to publish a critical 

habitat designation (16 U.S.C. 

1533(b)(6)(C)(ii)). 

We reviewed the available 

information pertaining to the biological 

needs of the species and habitat 

characteristics where this species is 

located. This and other information 

represent the best scientific data 

available and led us to conclude that the 

designation of critical habitat is 

determinable for the sand dune 

phacelia. 

Physical or Biological Features 

Essential to the Conservation of the 

Species 

In accordance with section 3(5)(A)(i) 

of the Act and regulations at 50 CFR 

424.12(b), in determining which areas 

we will designate as critical habitat from 

within the geographical area occupied 

by the species at the time of listing, we 

consider the physical or biological 

features that are essential to the 

conservation of the species and that may 

require special management 

considerations or protection. The 

regulations at 50 CFR 424.02 define 

‘‘physical or biological features essential 

to the conservation of the species’’ as 

the features that occur in specific areas 

and that are essential to support the lifehistory needs of the species, including, 

but not limited to, water characteristics, 

soil type, geological features, sites, prey, 

vegetation, symbiotic species, or other 

features. A feature may be a single 

habitat characteristic or a more complex 

combination of habitat characteristics. 

Features may include habitat 

characteristics that support ephemeral 

or dynamic habitat conditions. Features 

may also be expressed in terms relating 

to principles of conservation biology, 

such as patch size, distribution 

distances, and connectivity. For 

example, physical features essential to 

the conservation of the species might 

include gravel of a particular size 

required for spawning, alkaline soil for 

seed germination, protective cover for 

migration, or susceptibility to flooding 

or fire that maintains necessary earlysuccessional habitat characteristics. 

Biological features might include prey 

species, forage grasses, specific kinds or 

ages of trees for roosting or nesting, 

symbiotic fungi, or a particular level of 

nonnative species consistent with 

conservation needs of the listed species. 

The features may also be combinations 

of habitat characteristics and may 

encompass the relationship between 

characteristics or the necessary amount 

of a characteristic essential to support 

the life history of the species. 

In considering whether features are 

essential to the conservation of the 

species, we may consider an appropriate 

quality, quantity, and spatial and 

temporal arrangement of habitat 

characteristics in the context of the lifehistory needs, condition, and status of 

the species. These characteristics 

include, but are not limited to, space for 

individual and population growth and 

for normal behavior; food, water, air, 

light, minerals, or other nutritional or 

physiological requirements; cover or 

shelter; sites for breeding, reproduction, 

or rearing (or development) of offspring; 

and habitats that are protected from 

disturbance. 

The following features are essential to 

the conservation of sand dune phacelia: 

Sandy Coastal Dune Habitat With 

Adequate Light Exposure, Water, and 

Growing Space 

Sandy coastal dune habitat above the 

high tide line that provides a high light 

environment, room for growth, and 

adequate moisture is required to support 

sand dune phacelia populations. Sandy 

areas must have open (unvegetated) 

space within them to accommodate 

population expansion. The physical 

features of sunlight, space, and water 

are essential for seedling establishment 

and growth, and facilitate the 

development of large, mature plants that 

produce copious amounts of seed. 

While we lack information on specific 

quantities associated with this need 

(such as maximum percent canopy 

cover that the species can tolerate), it is 

clear that sandy habitats that provide 

the essential features of sunlight, space, 

and water for sand dune phacelia tend 

to have lower cover of competitive 

invasive species, particularly European 

beachgrass and gorse. 

Adequate Pollinator Community 

A sufficient abundance of pollinators, 

particularly leafcutter bees (Family: 

Megachilidae), are required for genetic 

exchange among sand dune phacelia 

individuals. Sand dune phacelia 

appears to be largely incapable of 

significant self-pollination (Meinke 

2016, p. 3), relying primarily on 

leafcutter bees (Anthidium palliventre) 

and bumblebees (Bombus spp.) for 

pollination. Ants (Formica spp.) and 

beetles (unidentified spp.) have also 

been observed in association with sand 

dune phacelia flowers, but it is unclear 

how effective they are at pollination 

(Rittenhouse 1995, p. 8). 


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Summary of Essential Physical or 

Biological Features 

We derive the specific physical or 

biological features essential to the 

conservation of sand dune phacelia 

from studies of the species’ habitat, 

ecology, and life history as described 

below. Additional information can be 

found in the SSA report (Service 2021, 

entire, available on https://

www.regulations.gov under Docket No. 

FWS–R1–ES–2021–0070). We have 

determined that the following physical 

or biological features are essential to the 

conservation of sand dune phacelia: 

• Sandy coastal dune habitat above 

the high tide line that provides a high 

light environment, room for growth, and 

adequate moisture; 

• A sufficiently abundant pollinator 

community (which may include 

leafcutter bees and bumble bees) for 

pollination and reproduction; 

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. In the case 

of sand dune phacelia, these essential 

features include sandy dune habitat 

with high light exposure and adequate 

moisture and unvegetated space, as well 

as a sufficiently large and diverse 

pollinator community, and a minimum 

of 25 reproductively mature sand dune 

phacelia plants within dispersal 

distance of one another to sustain a 

population. 

These features essential to sand dune 

phacelia conservation may require 

special management considerations or 

protection to reduce the threat of 

invasive species encroachment, and to 

withstand climate change effects such as 

drought and sea level rise. In addition, 

localized stressors related to 

recreational activity, such as off-road 

vehicle use and pedestrian or equestrian 

trampling, may also need to be 

mitigated by special management 

practices to maintain viable sand dune 

phacelia populations. 

Management activities that could 

ameliorate these threats include, but are 

not limited to: (1) Habitat restoration 

activities in sand dune habitat that 

include the removal of invasive species 

such as nonnative European beachgrass 

and gorse, or native successional species 

such as shore pine; (2) efforts to restore 

a diverse and abundant pollinator 

community, such as through restricting 

land management practices that harm 

pollinator species, or through support of 

a diverse native nectar plant 

community; (3) access restrictions and 

enforcement for off-road vehicle use in 

areas occupied by sand dune phacelia; 

(4) recreational restrictions to prevent 

trampling of sand dune phacelia by 

pedestrians or equestrians; and (5) 

augmentation and reintroduction 

programs to expand phacelia 

populations. 

These management activities will 

protect the physical and biological 

features (PBFs) essential for the 

conservation of sand dune phacelia by 

providing native sandy dune habitat 

that allows for sand dune phacelia 

population growth and expansion, 

supporting the pollinator community 

that enables sand dune phacelia 

reproduction, protecting sand dune 

phacelia populations from trampling 

and crushing, and maintaining an 

adequate number of sand dune phacelia 

individuals necessary to sustain viable 

populations. 

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. We are not currently 

proposing to designate any areas outside 

the geographical area occupied by the 

species because we have not identified 

any unoccupied areas that meet the 

definition of critical habitat. We 

determined that the areas currently 

occupied by populations of sand dune 

phacelia made up of at least 25 

individuals, if recovered, would be 

sufficient to conserve the species. The 

extant populations with at least 25 

individuals are distributed across the 

three representation units and across the 

historical range of the species and, 

therefore, also span any ecological 

diversity that may exist within the 

species’ range. Therefore, if these 

populations were recovered to sufficient 

resiliency, they would provide adequate 

redundancy and representation for the 

species. Because currently occupied 

areas are sufficient to recover the 

species, we conclude that currently 

unoccupied areas do not meet the 

definition of critical habitat because 

they are not essential to the 

conservation of the species. In 

summary, for areas within the 

geographic area occupied by the species 

at the time of listing, we delineated 

critical habitat unit boundaries using 

the following criteria: 

Across the representation units, there 

are 25 naturally occurring sand dune 

phacelia populations consisting of a 

total of 94 polygons (patches of sand 

dune phacelia). We developed critical 

habitat units within each representation 

unit by joining patches of sand dune 

phacelia within each population to form 

discrete units; this was accomplished by 

joining patch vertices and creating 

minimum convex polygons. We 

considered patches to be part of the 

same population if they are within 0.30 

miles (0.48 km) of each other in Oregon 

(as defined by Oregon Natural Heritage 

Information Center) or 0.25 miles (0.4 

km) of each other in California (as 

defined by the California Natural 

Diversity Database). 

A minimum of 25 reproductively 

mature plants are required for breeding 

purposes to maintain viability in a 

population. Extant sand dune phacelia 

populations are isolated from one 

another on the landscape, with no 

possibility of natural dispersal between 

populations. As such, each individual 

population relies on having an adequate 

number of its own members to sustain 

itself and avoid extirpation. Although 

there are no data related to the 

minimum number of individuals 

necessary to sustain the viability of a 

sand dune phacelia population, we 

assume that at least 25 reproductively 

mature plants are needed for sufficient 

reproduction to allow the population to 

withstand stochastic events. 

Because we consider populations 

comprising fewer than 25 plants as 

being in low condition and unlikely to 

contribute meaningfully to recovery, we 

designated critical habitat only around 

populations with equal to or greater 

than 25 individuals. This consideration 

resulted in the creation of 13 critical 

habitat units. 

Some patches within the same 

population were separated by habitat 

that was unsuitable (i.e., does not 

contain PBFs). We avoided including 

unsuitable habitat within the critical 

habitat units by joining patches only if 

the intervening habitat contained at 

least one PBF. We further limited the 

inclusion of unsuitable habitat by 

removing areas from the unit that were 

clearly unsuitable (e.g., forest, water 

bodies) to the maximum extent possible 

given the scale of mapping. 

When determining proposed critical 

habitat boundaries, we made every 


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effort to avoid including developed 

areas such as lands covered by 

buildings, pavement, and other 

structures because such lands lack 

physical or biological features necessary 

for sand dune phacelia. The scale of the 

maps we prepared under the parameters 

for publication within the Code of 

Federal Regulations may not reflect the 

exclusion of such developed lands. Any 

such lands inadvertently left inside 

critical habitat boundaries shown on the 

maps of this proposed rule have been 

excluded by text in the proposed rule 

and are not proposed for designation as 

critical habitat. Therefore, if the critical 

habitat is finalized as proposed, a 

Federal action involving these lands 

would not trigger section 7 consultation 

with respect to critical habitat and the 

requirement of no adverse modification 

unless the specific action would affect 

the physical or biological features in the 

adjacent critical habitat. 

We propose to designate as critical 

habitat lands that we have determined 

are occupied at the time of listing (i.e., 

currently occupied). Thirteen critical 

habitat units are proposed for 

designation based on the physical or 

biological features being present to 

support sand dune phacelia’s lifehistory processes. All of the critical 

habitat units contain all of the identified 

physical or biological features and 

support multiple life-history processes 

necessary to support the sand dune 

phacelia’s use of that habitat. 

The proposed critical habitat 

designation is defined by the map or 

maps, as modified by any accompanying 

regulatory text, presented at the end of 

this document under Proposed 

Regulation Promulgation. We include 

more detailed information on the 

boundaries of the critical habitat 

designation in the preamble of this 

document. We will make the 

coordinates or plot points or both on 

which each map is based available to 

the public on https://

www.regulations.gov at Docket No. 

FWS–R1–ES–2021–0070, and on our 

internet site at https://www.fws.gov/ 

oregonfwo. 

Proposed Critical Habitat Designation 

We are proposing to designate 

approximately 252 ac (102 ha) in 13 

units as critical habitat for sand dune 

phacelia. The critical habitat areas we 

describe below constitute our current 

best assessment of areas that meet the 

definition of critical habitat for sand 

dune phacelia. The 13 critical habitat 

units we propose are: (1) North Bandon 

1, (2) North Bandon 2, (3) Lost Lake, (4) 

Floras Lake, (5) Cape Blanco, (6) 

Paradise Point, (7) Pistol River North, 

(8) Pistol River South, (9) Lone Ranch, 

(10) Pacific Shores, (11) Tolowa Dunes, 

(12) Point St. George, and (13) Pebble 

Beach. All 13 critical habitat units are 

occupied by the species. Table 4 shows 

the proposed critical habitat units and 

the approximate area, broken down by 

land ownership, for each unit. 

We present brief descriptions of all 

critical habitat units below. Note that all 

units of critical habitat described below 

meet the definition of critical habitat for 

sand dune phacelia because all of the 

units are occupied by sand dune 

phacelia, and all units contain all of the 

physical and biological features 

essential to the species. 

TABLE 4—PROPOSED CRITICAL HABITAT UNITS FOR SAND DUNE PHACELIA

Private 

(ac (ha)) 

Federal 

(ac (ha)) State (ac (ha)) County (ac (ha)) 

Total 

(ac (ha)) 

Oregon 

North Bandon 1 .................................................................... 0.6 (0.2) 0 0 0 0.6 (0.2) 

North Bandon 2 .................................................................... 54.4 (22) 0 6.9 (2.8) 0 61.3 (24.8) 

Lost Lake ............................................................................. 2.8 (1.1) 0.8 (0.3) 0.1 (0.04) 0 3.7 (1.5) 

Floras Lake .......................................................................... 0 5.8 (2.3) 0 0 5.8 (2.3) 

Cape Blanco ........................................................................ 0 0 2.0 (0.8) 0 2.0 (0.8) 

Paradise Point ...................................................................... 3.7 (1.5) 0 0 0 3.7 (1.5) 

Pistol River North ................................................................. 0 0 3.2 (1.3) 0 3.2 (1.3) 

Pistol River South ................................................................ 0 0 0.7 (0.3) 0 0.7 (0.3) 

Lone Ranch .......................................................................... 0 0 6.5 (2.6) 0 6.5 (2.6) 

California 

Pacific Shores ...................................................................... 54.4 (22) 0 37.9 (15.3) 0 92.3 (37.4) 

Tolowa Dunes ...................................................................... 0 0 69.6 (28.2) 0 69.6 (28.2) 

Pt. St. George ...................................................................... 0.1 (0.4) 0 0 1.0 (0.4) 1.1 (0.4) 

Pebble Beach ....................................................................... 0 0 1.3 (0.5) 0.4 (0.2) 1.7 (0.7) 

Totals ............................................................................ 116 (46.9) 6.6 (2.8) 128.2 (51.9) 1.4 (0.6) 252.2 (102.1) 

Note: Area estimates reflect suitable habitat within critical habitat unit boundaries, with non-habitat (as identified by textual description) excluded. Area sizes may not sum due to rounding. 

Unit 1: North Bandon 1 

Unit 1 consists of 0.6 ac (0.2 ha) in 

Coos County, Oregon. It is at the 

northernmost limit of the sand dune 

phacelia’s range in Coos County and is 

located on the privately owned Bandon 

Dunes Golf Resort. Invasive species are 

an ongoing threat at this site, and 

therefore invasive species management 

may be required. A stated goal of the 

conservation-minded owner is to protect 

and enhance sand dune phacelia at the 

site, and the population here has 

flourished due to the removal of heavy 

infestations of gorse (Gunther 2012, no 

pagination). 

Unit 2: North Bandon 2 

Unit 2 consists of 61.3 ac (24.8 ha) in 

Coos County, Oregon, and currently 

supports the largest population of sand 

dune phacelia rangewide. The majority 

(54.4 ac (22 ha)) of the habitat at this site 

is on the privately owned Bandon 

Dunes Golf Resort. The population here 

is now the largest rangewide, with over 

24,000 individuals (Brown 2020a 

database). Invasive species are the 

primary threat, and therefore invasive 

species management may be required. 

Conservation and restoration 

implemented by the golf resort are 

largely responsible for the high 


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condition of this population and its 

habitat. While there are no formal 

agreements in place to protect sand 

dune phacelia at the resort, we have no 

evidence at this time that management 

efforts at this site will be discontinued. 

Part of the population (6.9 ac (2.8 ha)) 

is in State park ownership (Bullard’s 

Beach) and implementation of invasive 

species control, particularly gorse, could 

result in an expanded sand dune 

phacelia population in the park. 

Unit 3: Lost Lake 

Unit 3 consists of 3.7 ac (1.5 ha) in 

Coos County, Oregon. The Lost Lake 

unit contains land within the Coos Bay 

New River Area of Critical 

Environmental Concern (ACEC) (0.8 ac 

(0.3 ha)) that is federally managed by 

BLM, State-managed land (0.1 ac (0.04 

ha)) within the Bandon State Natural 

Area (BSNA), and undeveloped private 

land (2.8 ac (1.1 ha)). Stressors in Unit 

3 include illegal off-highway vehicle 

(OHV) use and the persistent threat of 

invasive species. As such, managing 

OHV use may benefit the unit, and 

invasive species management may be 

required to maintain it. Sand dune 

phacelia has greatly benefited from 

BLM’s efforts to remove invasive species 

in the Lost Lake area, and it is likely that 

there is room for expansion of this 

population provided that annual, or 

nearly annual, vegetation management 

continues. Augmentation efforts, 

including transplanting and seeding, 

have also occurred at Lost Lake on the 

ACEC. 

Unit 4: Floras Lake 

Unit 4 consists of 5.8 ac (2.3 ha) in 

Curry County, Oregon. Like Unit 3, 

Floras Lake is a part of BLM’s New 

River ACEC. BLM monitors and 

regularly manages the habitat to 

maintain the open sand conditions that 

the sand dune phacelia requires, 

contributing to the fact that the 

population of sand dune phacelia at 

Floras Lake is the largest naturally 

occurring (i.e., not introduced) 

population on Federal land. BLM has 

augmented populations in this subunit 

with transplants. In addition to the 

threat of invasive species, other 

stressors include trampling by hikers 

and wintertime flooding from Floras 

Lake. Dependent upon the intensity, 

these activities could also be beneficial 

as they mobilize sand and clear habitat 

of invasive species. As such, mitigating 

the impacts of pedestrian use, flooding, 

and invasive species, may be required. 

Sea level rise may pose an additional 

threat. As determined by our future 

condition analysis, a 1-foot rise in sea 

level by 2060 would barely reach the 

seaward boundary of the unit; however, 

other accompanying effects of climate 

change, like increased storm surge, may 

also affect sand dune phacelia habitat in 

this unit. 

Unit 5: Cape Blanco 

Unit 5 consists of 2.0 ac (0.8 ha) in 

Curry County, Oregon. The unit is Statemanaged by the Oregon Parks and 

Recreation Department (OPRD) and 

consists of sandy bluffs above the high 

tide line. A naturally occurring 

population was augmented with 

transplants in 2018. Invasive species are 

a threat at this site, and therefore 

invasive species management may be 

required. 

Unit 6: Paradise Point 

Unit 6 consists of 3.7 ac (1.5 ha) in 

Curry County, Oregon. It is separated 

from Unit 5 by the Elk River and 

bounded to the east by private 

ranchlands. Unit 6 is made up of 

undeveloped private land, limited to 

sandy bluffs between the high tide line 

and adjacent pastureland. Although it is 

privately owned, the State (OPRD) has 

jurisdiction over the land in Unit 6 as 

well as some adjacent State-owned land. 

In addition to the threat of invasive 

species, other factors influencing the 

population at this site include OHV use, 

erosion, and storm surge associated with 

sea level rise. As such, invasive species 

management may be required, and other 

management associated with mitigating 

the impacts of OHV use, erosion, and 

flooding may also be beneficial. 

Unit 7: Pistol River North 

Unit 7 consists of 3.2 ac (1.3 ha) in 

Curry County, Oregon. The land on Unit 

7 lies southwest of the Pistol River and 

is State-managed by OPRD (Pistol River 

State Park) and the Oregon Department 

of Transportation. As with all other 

units, invasive species are a threat, and 

therefore invasive species management 

may be required. Another stressor 

affecting Unit 7 is erosion, as the mouth 

of the Pistol River changes location 

annually, scouring the dunes and 

carrying sand out to sea. 

Unit 8: Pistol River South 

Unit 8 consists of 0.7 ac (0.3 ha) in 

Curry County, Oregon. The land is south 

of Unit 7 and also located on Pistol 

River State Park. Invasive species are a 

threat here, and the site is surrounded 

by European beachgrass and 

encroaching shore pine. As such, 

invasive species management may be 

required. 

Unit 9: Lone Ranch 

Unit 9 consists of 6.5 ac (2.6 ha) in 

Curry County, Oregon, and currently 

supports the third largest population of 

sand dune phacelia throughout its 

range. It is composed entirely of land 

managed by the State (OPRD; Boardman 

State Park). There is an imminent threat 

to the population at this site posed by 

a number of invasive species. As such, 

invasive species management may be 

required. Existing control of weedy 

species for recreational trail access may 

be maintaining existing suitable habitat. 

Unit 10: Pacific Shores 

Unit 10 consists of 92.3 ac (37.4 ha) 

in Del Norte County, California. State 

lands make up 37.9 ac (15.3 ha) of this 

site, with the remaining 54.4 acres (22 

ha) in private ownership at this time. 

This area represents an abandoned real 

estate venture, where lands were 

subdivided into 0.5-ac (0.20-ha) lots in 

the 1960s for residential development. 

Over 1,500 lots were sold and 

approximately 27 miles of road and 

electric transmission line were 

constructed. However, the area remains 

undeveloped due to permitting issues, 

and the empty lots are now being 

acquired for conservation by a coalition 

of entities for inclusion into the State’s 

Lake Earl Wildlife Area. Approximately 

430 lots remain in private ownership. 

Invasive species are a threat here, and 

therefore invasive species management 

may be required. In addition, because 

much of the sand dune phacelia 

population in the unit occurs adjacent 

to roadways or other readily accessible 

areas, the unit is considered heavily 

impacted by human activities that 

include OHV use. Special management 

considerations to mitigate the impact to 

sand dune phacelia habitat from these 

activities may be required. 

Unit 11: Tolowa Dunes 

Unit 11 consists of 69.6 ac (28.2 ha) 

in Del Norte County, California, and 

currently supports the second largest 

population of sand dune phacelia 

rangewide. The unit is State-managed in 

part by California State Parks (on 

Tolowa Dunes State Park) and the 

California Department of Fish and 

Wildlife (on Lake Earl Wildlife Area). 

Invasive species are a threat here and 

OHV use also impacts this site. As such, 

managing OHV use and invasive species 

may be required. The relatively high 

abundance of sand dune phacelia in 

Unit 11 is attributed to a concerted 

restoration program that has removed 

invasive species, particularly European 

beachgrass. These efforts have made this 

population the stronghold for the 


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species in California and an important 

contributor to sand dune phacelia 

resiliency and redundancy rangewide. 

However, much of the restoration at this 

site has been conducted by volunteers, 

and funding to continue maintaining 

restored habitat is uncertain. 

Unit 12: Point Saint George 

Unit 12 consists of 1.1 ac (0.4 ha) in 

Del Norte County, California. The vast 

majority of the land (1 ac (0.4 ha)) is 

county-managed by Del Norte County 

Parks, and the other 0.1 ac (0.04 ha) is 

privately owned. Invasive species, 

particularly annual grasses, are prolific 

in this unit and therefore invasive 

species management may be required. 

However, a large proportion of the sand 

dune phacelia population at this site 

occurs near a hiking trail where 

disturbance has kept the area relatively 

free of invasive species. 

Unit 13: Pebble Beach 

Unit 13 consists of 1.7 ac (0.7 ha) in 

Del Norte County, California. While 0.4 

ac (0.2 ha) of the land here is county 

land, the rest (1.3 ac (0.5 ha)) is Statemanaged by the California Department 

of Transportation. Invasive species pose 

a substantial threat at this site, primarily 

Hottentot fig or iceplant (Carpobrotus 

edulis), and therefore invasive species 

management may be required. 

Additionally, much of this unit is 

located within a road right-of-way, and 

therefore road development or 

maintenance activities could impact 

sand dune phacelia individuals, some of 

which are quite large and productive. 

As such, special management to 

mitigate the impact to sand dune 

phacelia habitat from these activities 

may be required. 

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. In 

addition, section 7(a)(4) of the Act 

requires Federal agencies to confer with 

the Service on any agency action which 

is likely to jeopardize the continued 

existence of any species proposed to be 

listed under the Act or result in the 

destruction or adverse modification of 

proposed critical habitat. 

We published a final rule revising the 

definition of destruction or adverse 

modification on August 27, 2019 (84 FR 

44976). Destruction or adverse 

modification means a direct or indirect 

alteration that appreciably diminishes 

the value of critical habitat as a whole 

for the conservation of a listed species. 

If a Federal action may affect a listed 

species or its critical habitat, the 

responsible Federal agency (action 

agency) must enter into consultation 

with us. Examples of actions that are 

subject to the section 7 consultation 

process are actions on State, Tribal, 

local, or private lands that require a 

Federal permit (such as a permit from 

the U.S. Army Corps of Engineers under 

section 404 of the Clean Water Act (33 

U.S.C. 1251 et seq.) or a permit from the 

Service under section 10 of the Act) or 

that involve some other Federal action 

(such as funding from the Federal 

Highway Administration, Federal 

Aviation Administration, or the Federal 

Emergency Management Agency). 

Federal actions not affecting listed 

species or critical habitat—and actions 

on State, Tribal, local, or private lands 

that are not federally funded, 

authorized, or carried out by a Federal 

agency—do not require section 7 

consultation. 

Compliance with the requirements of 

section 7(a)(2) is documented through 

our issuance of: 

(1) A concurrence letter for Federal 

actions that may affect, but are not 

likely to adversely affect, listed species 

or critical habitat; or 

(2) A biological opinion for Federal 

actions that may affect, and are likely to 

adversely affect, listed species or critical 

habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

jeopardize the continued existence of a 

listed species and/or destroy or 

adversely modify critical habitat, we 

provide reasonable and prudent 

alternatives to the project, if any are 

identifiable, that would avoid the 

likelihood of jeopardy and/or 

destruction or adverse modification of 

critical habitat. We define ‘‘reasonable 

and prudent alternatives’’ (at 50 CFR 

402.02) as alternative actions identified 

during consultation that: 

(1) Can be implemented in a manner 

consistent with the intended purpose of 

the action, 

(2) Can be implemented consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction, 

(3) Are economically and 

technologically feasible, and 

(4) Would, in the Service Director’s 

opinion, avoid the likelihood of 

jeopardizing the continued existence of 

the listed species and/or avoid the 

likelihood of destroying or adversely 

modifying critical habitat. 

Reasonable and prudent alternatives 

can vary from slight project 

modifications to extensive redesign or 

relocation of the project. Costs 

associated with implementing a 

reasonable and prudent alternative are 

similarly variable. 

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: (1) If the amount or extent 

of taking specified in the incidental take 

statement is exceeded; (2) if new 

information reveals effects of the action 

that may affect listed species or critical 

habitat in a manner or to an extent not 

previously considered; (3) if the 

identified action is subsequently 

modified in a manner that causes an 

effect to the listed species or critical 

habitat that was not considered in the 

biological opinion; or (4) if a new 

species is listed or critical habitat 

designated that may be affected by the 

identified action. 

In such situations, Federal agencies 

sometimes may need to request 

reinitiation of consultation with us, but 

the regulations also specify some 

exceptions to the requirement to 

reinitiate consultation on specific land 

management plans after subsequently 

listing a new species or designating new 

critical habitat. See the regulations for a 

description of those exceptions. 

Application of the ‘‘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 physical or 

biological features essential to the 

conservation of a listed species and 

provide for the conservation of the 

species. 

Section 4(b)(8) of the Act requires us 

to briefly evaluate and describe, in any 

proposed or final regulation that 

designates critical habitat, activities 

involving a Federal action that may 

violate section 7(a)(2) of the Act by 

destroying or adversely modifying such 

habitat, or that may be affected by such 

designation. 


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Activities that the Service may, 

during a consultation under section 

7(a)(2) of the Act, consider likely to 

destroy or adversely modify critical 

habitat include, but are not limited to: 

(1) Actions that would destroy, alter, 

or convert sand dune habitat. Such 

activities could include, but are not 

limited to, the construction of new 

roads or utility lines, dune breaching or 

breaching of water bodies for flood 

control, bridge work, and the use of 

heavy equipment for regular 

maintenance activities (such as roadway 

maintenance). These activities could 

eliminate or reduce the sandy dune 

habitat necessary for sand dune phacelia 

growth and reproduction. 

(2) Actions that would inhibit or 

reduce native plant communities and 

the pollinator communities they 

support. Such activities could include, 

but are not limited to, herbicide or 

insecticide application. These activities 

could limit the ability of sand dune 

phacelia to reproduce by inhibiting 

pollinator communities. 

(3) Actions that would introduce or 

promote the proliferation of invasive or 

successional species plant species into 

sand dune habitat. Such activities could 

include, but are not limited to, 

vegetation management that encourages 

growth of competing native and 

nonnative species. These activities 

could increase competition for space for 

growth, sunlight, and nutrients between 

sand dune phacelia and nonnative or 

successional competitors such as 

European beachgrass and shore pine, 

respectively. 

Exemptions 

Application of Section 4(a)(3) of the Act 

Section 4(a)(3)(B)(i) of the Act (16 

U.S.C. 1533(a)(3)(B)(i)) provides that the 

Secretary shall not designate as critical 

habitat any lands or other geographical 

areas owned or controlled by the 

Department of Defense (DoD), or 

designated for its use, that are subject to 

an integrated natural resources 

management plan (INRMP) prepared 

under section 101 of the Sikes Act (16 

U.S.C. 670a), if the Secretary determines 

in writing that such plan provides a 

benefit to the species for which critical 

habitat is proposed for designation. No 

DoD lands with a completed INRMP are 

within the proposed 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. 

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. 

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 

4(b)(2) exclusion analysis. 

For this particular designation, we 

developed an incremental effects 

memorandum (IEM) considering the 

probable incremental economic impacts 

that may result from this 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 the 

sand dune phacelia (Industrial 

Economics, Inc. 2021). 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. 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 


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constitute what we consider to be our 

draft economic analysis (DEA) of the 

proposed critical habitat designation for 

the sand dune phacelia; our DEA is 

summarized in the narrative below. 

Executive Orders (E.O.s) 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 E.O. 

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 the sand dune 

phacelia, first we identified, in the IEM 

dated April 14, 2021, probable 

incremental economic impacts 

associated with the following categories 

of activities: (1) Federal lands 

management (U.S. Bureau of Land 

Management) for recreational use, 

western snowy plover management, 

dune breaching, salt spray meadow 

restoration, and management plan 

updates; (2) bridge work; (3) breaching 

of water bodies for flood control 

purposes; and (4) road development and 

maintenance. 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. If we 

list the species, in areas where the sand 

dune phacelia is present, Federal 

agencies would be required to consult 

with the Service under section 7 of the 

Act on activities they fund, permit, or 

implement that may affect the species. 

If, when we list the species, we also 

finalize this proposed critical habitat 

designation, our consultation would 

include an evaluation of measures to 

avoid the destruction or adverse 

modification of 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., 

difference between the jeopardy and 

adverse modification standards) for 

sand dune phacelia’s critical habitat. 

Because the designation of critical 

habitat for sand dune phacelia was 

proposed concurrently with the listing, 

it has been our experience that it is 

more difficult to discern which 

conservation efforts are attributable to 

the species being listed and those which 

will result solely from the designation of 

critical habitat. However, the following 

specific circumstances in this case help 

to inform our evaluation: (1) The 

essential physical or biological features 

identified for critical habitat are the 

same features essential for the life 

requisites of the species, and (2) any 

actions that would result in sufficient 

harm or harassment to constitute 

jeopardy to sand dune phacelia would 

also likely adversely affect the essential 

physical or biological features of critical 

habitat. The IEM outlines our rationale 

concerning this limited distinction 

between baseline conservation efforts 

and incremental impacts of the 

designation of critical habitat for this 

species. This evaluation of the 

incremental effects has been used as the 

basis to evaluate the probable 

incremental economic impacts of this 

proposed designation of critical habitat. 

We are proposing to designate 

approximately 252 ac (102 ha) of critical 

habitat for sand dune phacelia across 

Coos and Curry Counties in Oregon and 

Del Norte County in California. The 

designation is divided into 13 units, and 

all units are occupied by sand dune 

phacelia. We are not proposing to 

designate any units of unoccupied 

habitat. Approximately 51 percent of the 

proposed designation is located on 

State-owned lands, 46 percent is on 

privately owned lands, 3 percent is on 

Federal lands, and less than 1 percent 

is on county-owned lands. Any actions 

that may affect the species or its habitat 

would also affect 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 sand dune phacelia. 

Therefore, only administrative costs are 

expected with the proposed critical 

habitat designation. While this 

additional analysis will require time 

and resources by both the Federal action 

agency and the Service, it is believed 

that, in most circumstances, these costs 

would predominantly be administrative 

in nature and would not be significant. 

The probable incremental economic 

impacts of the sand dune phacelia 

critical habitat designation are expected 

to be limited to additional 

administrative effort resulting from an 

estimated 3 programmatic consultations, 

10 formal consultations, 3 informal 

consultations, and 7 technical assistance 

efforts related to section 7 consultation 

over the next 10 years. Because all of the 

proposed critical habitat units are 

occupied by the species, incremental 

economic impacts of critical habitat 

designation, other than administrative 

costs, are unlikely. The incremental 

costs for each programmatic, formal, 

informal, and technical assistance effort 

are estimated to be $9,800, $5,300, 

$2,600, and $420, respectively. These 

estimates assume that consultation 

actions will occur even in the absence 

of critical habitat due to the presence of 

the sand dune phacelia, and the amount 

of administrative effort needed to 

address the critical habitat during this 

process is relatively minor. Applying 

these unit cost estimates, this analysis 

estimates that considering adverse 

modification of sand dune phacelia 

critical habitat during section 7 

consultation will result in incremental 

costs of no more than $9,300 (2021 

dollars) per year, which is well below 

the annual administrative burden 

threshold of $100 million of incremental 

administrative impacts in a single year. 

We are soliciting data and comments 

from the public on the DEA discussed 

above, as well as on all aspects of this 

proposed rule and our required 

determinations. During the development 

of a final designation, we will consider 

the information presented in the DEA 

and any additional information on 

economic impacts we receive during the 

public comment period to determine 

whether any specific areas should be 

excluded from the final critical habitat 

designation under authority of section 

4(b)(2) and our implementing 

regulations at 50 CFR 17.90. If we 

receive credible information regarding 

the existence of a meaningful economic 

or other relevant impact supporting a 

benefit of exclusion, we will conduct an 

exclusion analysis for the relevant area 

or areas. We may also exercise the 

discretion to evaluate any other 

particular areas for possible exclusion. 

Furthermore, when we conduct 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 will give weight to those 

impacts consistent with the expert or 

firsthand information unless we have 

rebutting information. We may exclude 

an area from critical habitat if we 

determine that the benefits of excluding 


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the area outweigh the benefits of 

including the area, provided the 

exclusion will not result in the 

extinction of this species. 

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 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 homelandsecurity 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 

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 nationalsecurity or homeland-security impact 

might exist on lands not owned or 

managed by DoD or DHS. In preparing 

this proposal, we have determined that 

the lands within the proposed 

designation of critical habitat for sand 

dune phacelia are not owned or 

managed by DoD or DHS. Therefore, we 

anticipate no impact on national 

security or homeland security. However, 

if through the public comment period 

we receive credible information 

regarding impacts on national security 

or homeland security from designating 

particular areas as critical habitat, then 

as part of developing the final 

designation of critical habitat, we will 

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 17.90. 

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 nonpermitted 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, public-health, communityinterest, environmental, or social 

impacts that might occur because of the 

designation. 

We have not identified any areas to 

consider for exclusion from critical 

habitat based on other relevant impacts. 

In preparing this proposal, we have 

determined that there are currently no 

permitted conservation plans or other 

management plans for sand dune 

phacelia. There are no partnerships, 

management, or protection afforded by 

cooperative management efforts 

sufficient to provide for the 

conservation of the species. There are 

no areas for which exclusion would 

result in conservation, or in the 

continuation, strengthening, or 

encouragement of partnerships. 

However, during the development of 

a final designation, we will consider all 

information currently available or 

received during the public comment 

period. If we receive credible 

information regarding the existence of a 

meaningful impact supporting a benefit 

of excluding any areas, we will 

undertake an exclusion analysis and 

determine whether those 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 17.90. We may 

also exercise the discretion to undertake 

exclusion analyses for other areas as 

well, and we will describe all of our 

exclusion analyses as part of a final 

critical habitat determination. 

Summary of Exclusions Considered 

Under Section 4(b)(2) of the Act 

At this time, we are not considering 

any exclusions from the proposed 

designation based on economic impacts, 

national security impacts, or other 

relevant impacts—such as partnerships, 

management, or protection afforded by 

cooperative management efforts—under 

section 4(b)(2) of the Act. In preparing 

this proposal, we have determined that 

no HCPs or other management plans for 

sand dune phacelia currently exist, and 

the proposed designation does not 

include any Tribal lands or trust 

resources. Therefore, we anticipate no 

impact on Tribal lands, partnerships, or 

HCPs from this proposed critical habitat 

designation and thus, as described 

above, we are not considering excluding 

any particular areas on the basis of the 

presence of conservation agreements or 

impacts to trust resources. 


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During the development of a final 

designation, we will consider any 

additional information received through 

the public comment period to determine 

whether any specific areas should be 

excluded from the final critical habitat 

designation under authority of section 

4(b)(2) and our implementing 

regulations at 50 CFR 17.90. 

Required Determinations 

Clarity of the Rule 

We are required by Executive Orders 

12866 and 12988 and by the 

Presidential Memorandum of June 1, 

1998, to write all rules in plain 

language. This means that each rule we 

publish must: 

(1) Be logically organized; 

(2) Use the active voice to address 

readers directly; 

(3) Use clear language rather than 

jargon; 

(4) Be divided into short sections and 

sentences; and 

(5) Use lists and tables wherever 

possible. 

If you feel that we have not met these 

requirements, send us comments by one 

of the methods listed in ADDRESSES. To 

better help us revise the rule, your 

comments should be as specific as 

possible. For example, you should tell 

us the numbers of the sections or 

paragraphs that are unclearly written, 

which sections or sentences are too 

long, the sections where you feel lists or 

tables would be useful, etc. 

Regulatory Planning and Review 

(Executive Orders 12866 and 13563) 

Executive Order 12866 provides that 

the Office of Information and Regulatory 

Affairs (OIRA) in the Office of 

Management and Budget will review all 

significant rules. OIRA has determined 

that this rule is not significant. 

Executive Order 13563 reaffirms the 

principles of E.O. 12866 while calling 

for improvements in the nation’s 

regulatory system to promote 

predictability, to reduce uncertainty, 

and to use the best, most innovative, 

and least burdensome tools for 

achieving regulatory ends. The 

executive order directs agencies to 

consider regulatory approaches that 

reduce burdens and maintain flexibility 

and freedom of choice for the public 

where these approaches are relevant, 

feasible, and consistent with regulatory 

objectives. E.O. 13563 emphasizes 

further that regulations must be based 

on the best available science and that 

the rulemaking process must allow for 

public participation and an open 

exchange of ideas. We have developed 

this proposed 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 if 

we adopt the proposed critical habitat 

designation. The RFA does not require 

evaluation of the potential impacts to 

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, if made final as 

proposed, the proposed critical habitat 

designation will not have a significant 

economic impact on a substantial 

number of small entities. 

In summary, we have considered 

whether the proposed 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, if made 

final, the proposed critical habitat 

designation would not have a significant 

economic impact on a substantial 

number of small business entities. 

Therefore, an initial regulatory 

flexibility analysis is not required. 

Energy Supply, Distribution, or Use— 

Executive Order 13211 

Executive Order 13211 (Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use) requires agencies 

to prepare Statements of Energy Effects 

when undertaking certain actions. In 

our economic analysis, we did not find 

that this proposed critical habitat 

designation would significantly affect 

energy supplies, distribution, or use. We 

are not aware of any energy-related 

activities or facilities within the 

boundaries of the proposed critical 

habitat designation. 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 proposed rule would not 

produce a Federal mandate. In general, 


lotter on DSK11XQN23PROD with PROPOSALS2
Federal Register / Vol. 87, No. 55 / Tuesday, March 22, 2022 / Proposed Rules 16349 

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 nonFederal 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 will not 

produce a Federal mandate of $100 

million or greater in any 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. Therefore, a Small 

Government Agency Plan is not 

required. 

Takings—Executive Order 12630 

In accordance with E.O. 12630 

(Government Actions and Interference 

with Constitutionally Protected Private 

Property Rights), we have analyzed the 

potential takings implications of 

designating critical habitat for sand 

dune phacelia 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 

proposed designation of critical habitat 

for sand dune phacelia 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. 

Federalism—Executive Order 13132 

In accordance with E.O. 13132 

(Federalism), this proposed 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 

proposed 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 proposed rule does not have 

substantial direct effects either on the 

States, or on the relationship between 

the national government and the States, 

or on the distribution of powers and 

responsibilities among the various 

levels of government. The proposed 

designation may have some benefit to 

these governments because the areas 

that contain the features essential to the 

conservation of the species are more 

clearly defined, and the physical or 

biological features of the habitat 

necessary for the conservation of the 

species are specifically identified. This 

information does not alter where and 

what federally sponsored activities may 

occur. However, it may assist State and 

local governments in long-range 

planning because they no longer have to 

wait for case-by-case section 7 

consultations to occur. 

Where State and local governments 

require approval or authorization from a 

Federal agency for actions that may 

affect critical habitat, consultation 

under section 7(a)(2) of the Act 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 proposed 

designating critical habitat in 

accordance with the provisions of the 

Act. To assist the public in 

understanding the habitat needs of the 

species, this proposed rule identifies the 

physical or biological features essential 

to the conservation of the species. The 

proposed areas of critical habitat are 

presented on maps, and the proposed 

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 


lotter on DSK11XQN23PROD with PROPOSALS2
16350 Federal Register / Vol. 87, No. 55 / Tuesday, March 22, 2022 / Proposed Rules 

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 

proposed critical habitat for sand dune 

phacelia, so no Tribal lands would be 

affected by the proposed designation. 

References Cited 

A complete list of references cited in 

this rulemaking is available on the 

internet at https://www.regulations.gov 

and upon request from the Oregon 

Ecological Services Field Office (see FOR

FURTHER INFORMATION CONTACT). 

Authors 

The primary authors of this proposed 

rule are the staff members of the Fish 

and Wildlife Service’s Species 

Assessment Team and the Oregon 

Ecological Services Field Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Proposed Regulation Promulgation 

Accordingly, we propose to 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 

■ 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. 

■ 2. Amend § 17.12 paragraph (h) by 

adding an entry for ‘‘Phacelia argentea 

(Sand dune phacelia)’’ to the List of 

Endangered and Threatened Plants in 

alphabetical order under FLOWERING 

PLANTS to read as set forth below: 

§ 17.12 Endangered and threatened plants. 

* * * * * 

(h) * * * 

Scientific name Common name Where listed Status Listing citations and applicable rules 

FLOWERING PLANTS

* * * * * * * 

Phacelia argentea ........... Sand dune phacelia ....... Wherever found .............. T [Federal Register citation when published as a 

final rule]; 

50 CFR 17.73(j); 4d

50 CFR 17.96(a).CH

* * * * * * * 

■ 3. Revise § 17.73 to read as follows: 

§ 17.73 Special rules—flowering plants. 

(a)–(i) [Reserved] 

(j) Phacelia argentea (sand dune 

phacelia).—(1) Prohibitions. The 

following prohibitions that apply to 

endangered plants also apply to sand 

dune phacelia. Except as provided 

under paragraph (k)(2) of this section, it 

is unlawful for any person subject to the 

jurisdiction of the United States to 

commit, to attempt to commit, to solicit 

another to commit, or cause to be 

committed, any of the following acts in 

regard to this species: 

(i) Import or export, as set forth at 

§ 17.61(b) for endangered plants. 

(ii) Remove and reduce to possession 

the species from areas under Federal 

jurisdiction as set forth at § 17.61(c)(1) 

for endangered plants. 

(iii) Maliciously damage or destroy 

the species on any areas under Federal 

jurisdiction, or remove, cut, dig up, or 

damage or destroy the species on any 

other area in knowing violation of any 

law or regulation of any State or in the 

course of any violation of a State 

criminal trespass law, as set forth at 

section 9(a)(2)(B) of the Act. 

(iv) Interstate or foreign commerce in 

the course of commercial activity, as set 

forth at § 17.61(d) for endangered plants. 

(v) Sale or offer for sale, as set forth 

at § 17.61(e) for endangered plants. 

(2) Exceptions from prohibitions. In 

regard to Phacelia argentea, you may: 

(i) Conduct activities, including 

activities prohibited under paragraph 

(k)(1) of this section, if they are 

authorized by a permit issued in 

accordance with the provisions set forth 

at § 17.72. 

(ii) Remove and reduce to possession 

from areas under Federal jurisdiction, as 

set forth at § 17.71(b). 

(iii) Remove, cut, dig up, damage or 

destroy on areas not under Federal 

jurisdiction by any qualified employee 

or agent of the Service or State 

conservation agency which is a party to 

a Cooperative Agreement with the 

Service in accordance with section 6(c) 

of the Act, who is designated by that 

agency for such purposes, when acting 

in the course of official duties. 

■ 4. Amend § 17.96 paragraph (a) by 

adding an entry for ‘‘Family 

Boraginaceae: Phacelia argentea (sand 


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Federal Register / Vol. 87, No. 55 / Tuesday, March 22, 2022 / Proposed Rules 16351 

dune phacelia)’’ after the entry for 

‘‘Family Boraginaceae: Amsinckia 

grandiflora (large-flowered 

fiddleneck)’’, to read as set forth below: 

§ 17.96 Critical habitat—plants. 

(a) Flowering plants. 

* * * * * 

Family Boraginaceae: Phacelia argentea 

(sand dune phacelia) 

(1) Critical habitat units are depicted 

for Coos and Curry Counties, Oregon, 

and Del Norte County, California, on the 

maps in this entry. 

(2) Within these areas, the physical or 

biological features essential to the 

conservation of sand dune phacelia 

consist of the following components: 

(i) Sandy coastal dune habitat above 

the high tide line that provides a high 

light environment, room for growth, and 

adequate moisture. 

(ii) A sufficiently abundant pollinator 

community (which may include 

leafcutter bees and bumble bees) for 

pollination and reproduction. 

(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 [EFFECTIVE DATE OF 

THE FINAL RULE]. 

(4) Data layers defining map units 

were created using Geographic 

Information Systems (GIS) feature 

classes from known extant populations. 

Critical habitat units were defined by 

applying the minimum convex polygon 

approach in GIS, thereby creating a 

single polygon from occupied habitat 

patches within each population 

consisting of 25 or more individuals. In 

a few cases, the unit boundaries were 

modified to align with the coastal 

boundary based on current National 

Agriculture Imagery Program natural 

color imagery. The maps in this entry, 

as modified by any accompanying 

regulatory text, establish the boundaries 

of the critical habitat designation. The 

coordinates or plot points or both on 

which each map is based are available 

to the public at the Service’s internet 

site at https://www.fws.gov/oregonfwo, 

at https://www.regulations.gov at Docket 

No. FWS–R1–ES–2021–0070, and at the 

field office responsible for this 

designation. You may obtain field office 

location information by contacting one 

of the Service regional offices, the 

addresses of which are listed at 50 CFR 

2.2. 


lotter on DSK11XQN23PROD with PROPOSALS2
16352 Federal Register / Vol. 87, No. 55 / Tuesday, March 22, 2022 / Proposed Rules 

(5) Note: Index map follows: 

(6) Unit 1: North Bandon 1, Coos 

County, Oregon; Unit 2: North Bandon 

2, Coos County, Oregon. 

(i) Unit 1 consists of 0.6 acres (ac) (0.2 

hectares (ha)) in Coos County, Oregon, 

and is composed of land in private 

ownership. Unit 2 consists of 61.3 ac 

(24.8 ha) in Coos County, Oregon, and 

is composed of land in State (6.9 ac (2.8 

ha)) and private ownership (54.4 ac (22 

ha)). 


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Critical Habitat Locations for Sand Dune Phacelia (Phacelia argentea) 

Oregon - Coos and Curry Counties, California - Del Norte County 

125"W 124"40'W 124"20W 124"W 

' l,_,-~ 

123"40W 

3l> Kliornetera 

I I 

251Vllle& 

7 ~" } 

123"20W 

e Cn1ical Habitat 

• City 

Waterway 

- Interstate 

- USHighway 

-- State HlghWay 

c:Jcounty 
Federal Register / Vol. 87, No. 55 / Tuesday, March 22, 2022 / Proposed Rules 16353 

(ii) Map of Unit 1 and Unit 2 follows: 

(7) Unit 3: Lost Lake, Coos County, 

Oregon. 

(i) Unit 3 consists of 3.7 ac (1.5 ha) in 

Coos County, Oregon, and is composed 

of land in State (0.1 ac (0.04 ha)), 

Federal (0.8 ac (0.3 ha)), and private 

ownership (2.8 ac (1.1 ha)). 


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Critical Habitat for Sand Dune Phacelia {Phacelia argentea} 

Oregon - North, Units: North Bandon 1 and North Bandon 2 

124'24'21l'W 124•24w 124°23'40-W 

0 

I 

0 

North 

n , "' Bandon 1 

,, 

COOSCOUNTY 

124"23'20-W 

530Meters 

11 1 1 I 

1,000Feet 

124•23w 124°22'40"W 

iJIM Critical Habitat 

Watetbody 

-LocalRoad 
16354 Federal Register / Vol. 87, No. 55 / Tuesday, March 22, 2022 / Proposed Rules 

(ii) Map of Unit 3 follows: 

(8) Unit 4: Floras Lake, Curry County, 

Oregon 

(i) Unit 4 consists of 5.8 ac (2.3 ha) in 

Curry County, Oregon, and is composed 

of land in Federal ownership. 


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Critical Habitat for Sand Dune Phacelia (Phacelia argentea) 

Oregon - North, Unit: Lost Lake 

• 

124°26"40'W 124"26'20'W 

0 

I 

0 

COOSCOVNTY 

124•2ew 

340Meters 

I I l I 

1,000Feet 

124'.25'40'W 

1/fM Critical Habitat 

Waterbody 

- Local Road 
Federal Register / Vol. 87, No. 55 / Tuesday, March 22, 2022 / Proposed Rules 16355 

(ii) Map of Unit 4 follows: 

(9) Unit 5: Cape Blanco, Curry 

County, Oregon 

(i) Unit 5 consists of 2 ac (0.8 ha) in 

Curry County, Oregon, and is composed 

of land in State ownership. 


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Critical Habitat for Sand Dune Phacelia (Phacelia argentea) 

124°30'40-W 

Oregon - North, Unit: Floras Lake 

...----------...,,....---------, 

124°30'20-W 

0 

I 

0 

275Meters 

I I I I 

1,000Feet 

CURRY COUNTY 

Bok:e: Cope Rt! 42 

124°30'W 

•• Critical Habitat 

Waterbody 

...- Waterway 

-Loca!Road 

- County Road 
16356 Federal Register / Vol. 87, No. 55 / Tuesday, March 22, 2022 / Proposed Rules 

(ii) Map of Unit 5 follows: 

(10) Unit 6: Paradise Point, Curry 

County, Oregon. 

(i) Unit 6 consists of 3.7 ac (1.5 ha) in 

Curry County, Oregon, and is composed 

of land in private ownership. 


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Critical Habitat for Sand Dune Phacelia (Phacelia argentea) 

Oregon• North, Unit: Cape Blanco 

CURRYCOIJNTY 

124"33'30'W 124"33W 124"32'30'W 124"32W 124"31 ':lO'W 124"31W 

♦ .. ,,,,. Critical Habitat 

Waterbody 

,,,- Waterway 

0 860Meters - Local Road I 1 I j 

I I I 

0 3,000Feet 
Federal Register / Vol. 87, No. 55 / Tuesday, March 22, 2022 / Proposed Rules 16357 

(ii) Map of Unit 6 follows: 

(11) Unit 7: Pistol River North, Curry 

County, Oregon. 

(i) Unit 7 consists of 3.2 ac (1.3 ha) in 

Curry County, Oregon, and is composed 

of land in State ownership. 


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Critical Habitat for Sand Dune Phacelia {Phacelia argentea) 

Oregon - North, Units: Paradise Point 

CURRY COUNTY 

124'31'40'W 124'31'20"W 124'31W 

(l 

I 

0 

124'30'40"W 

380Meters 

I I 

1,000 Feet 

Kna J? • .c..;Rd'-----1 

124'30'20'W 

~ Critical Habitat 

Waterbody 

- Local Road 
16358 Federal Register / Vol. 87, No. 55 / Tuesday, March 22, 2022 / Proposed Rules 

(ii) Map of Unit 7 follows: 

(12) Unit 8: Pistol River South, Curry 

County, Oregon 

(i) Unit 8 consists of 0.7 ac (0.3 ha) in 

Curry County, Oregon, and is composed 

of land in State ownership. 


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Critical Habitat for Sand Dune Phacelia (Phacelia argentea) 

Oregon - North, Units: Pistol River North 

124°24'40-W 124"24'20-W 

0 

., 

0 

124"24'W 

340Meters 

I I I I 

1,000 Feet 

124°23'40-W 

11/1' Critical Habitat 

■ Community 

Waterbody 

-- Local Road 

-- County Road 

-. US Highway 
Federal Register / Vol. 87, No. 55 / Tuesday, March 22, 2022 / Proposed Rules 16359 

(ii) Map of Unit 8 follows: 

(13) Unit 9: Lone Ranch, Curry 

County, Oregon 

(i) Unit 9 consists of 6.5 ac (2.6 ha) in 

Curry County, Oregon, and is composed 

of land in State ownership. 


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Critical Habitat for Sand Dune Phacelia (Phacelia argentea) 

Oregon - South, Unit: Pistol River South 

124"24'30-W 

CURRY 

COUNTY 

I 

124•24w 

0 

. I I .-

0 

410Meters 

JI I 

1,000Feet 

124°23'30-W 

iJf' Critical Habitat 

Waterbody 

-. Local. Road 

- County Road 

-US Highway 
16360 Federal Register / Vol. 87, No. 55 / Tuesday, March 22, 2022 / Proposed Rules 

(ii) Map of Unit 9 follows: 

(14) Unit 10: Pacific Shores, Del Norte 

County, California; Unit 11: Tolowa 

Dunes, Del Norte County, California. 

(i) Unit 10 consists of 92.3 ac (37.4 ha) 

in Del Norte County, California, and is 

composed of land in State (37.9 ac (15.3 

ha)) and private ownership (54.4 ac (22 

ha)). Unit 11 consists of 69.6 ac (28.2 ha) 

in Del Norte County, California, and is 

composed of land in State ownership. 


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Critical Habitat for Sand Dune Phacelia (Phacelia argentea) 

Oregon - South, Unit: Lone Ranch 

CURRY COUNTY 

124°21'30"W 124•21w 124°20'30"W 124•20w 124°19'30"W 

♦ •· ,,. Critical Habitat 

WatEirbody 

- Local Road 

0 600Meters - County Road 

I I i I I -USHighway 

0 2,000Feet 
Federal Register / Vol. 87, No. 55 / Tuesday, March 22, 2022 / Proposed Rules 16361 

(ii) Map of Unit 10 and Unit 11 

follows: 

(15) Unit 12: Point Saint George, Del 

Norte County, California. 

(i) Unit 12 consists of 1.1 ac (0.4 ha) 

in Del Norte County, California, and is 

composed of land in county (1 ac (0.4 

ha)) and private ownership (0.1 ac (0.04 

ha)). 


lotter on DSK11XQN23PROD with PROPOSALS2EP22MR22.012</GPH>

Critical Habitat for Sand Dune Phacelia (Phacelia argentea) 

California, Units: Pacific Shores and Tolowa Dunes 

124.14'30'W .124•14w 124°13'30"W 124"13W 124"12'30'W 

IMOMeiera 

i l I I I I . 3,000Feef 

124'12W 

.,,.. Critical Habitat 

_., waterbody 

-- Local Road 
16362 Federal Register / Vol. 87, No. 55 / Tuesday, March 22, 2022 / Proposed Rules 

(ii) Map of Unit 12 follows: 

(16) Unit 13: Pebble Beach, Del Norte 

County, California. 

(i) Unit 13 consists of 1.7 ac (0.7 ha) 

in Del Norte County, California, and is 

composed of land in State (1.3 ac (0.5 

ha)) and county ownership (0.4 ac (0.2 

ha)). 


lotter on DSK11XQN23PROD with PROPOSALS2EP22MR22.013</GPH>

Critical Habitat for Sand Dune Phacelia (Phacelia argentea) 

California, Unit: Point St. George 

124"15'40'W 1.24"15'20-W 124"15W 124"14'40"W 

bailbkiE 

COUNTY 

124"14'20"\N 

670Meters 

I I I I 

2,000Feet 

124"14W 124°13'40"\N 

,,,. Cfitlcal Ha_bitat 

.-, Waterbody 

-- Local Road 
Federal Register / Vol. 87, No. 55 / Tuesday, March 22, 2022 / Proposed Rules 16363 

(ii) Map of Unit 13 follows: 

* * * * * 

Martha Williams, 

Director, U.S. Fish and Wildlife Service. 

[FR Doc. 2022–05326 Filed 3–21–22; 8:45 am] 

BILLING CODE 4333–15–P 


lotter on DSK11XQN23PROD with PROPOSALS2EP22MR22.014</GPH>

Critical Habitat for Sand Dune Phacelia (Phacelia argentea) 

California, Unit: Pebble Beach 

124"14'15'W 

w Washington V 

DEL NORTE 

COUNTY 

124"14'W 124°13'45-W 

290Meters 

', I I 

1,000Feet 

124°13'3()-W 

,,,,. Critlcal Habitat 

Watetbody 

,,......... Waterway 

- Local Road