`[Federal Register Volume 89, Number 234 (Thursday, December 5, 2024)]
[Rules and Regulations]
[Pages 96602-96616]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-28357]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2022-0173; FXES1111090FEDR-256-FF09E21000]
RIN 1018-BF79


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
endangered species status under the Endangered Species Act of 1973 
(Act), as amended, for the swale paintbrush (Castilleja ornata), a 
flowering plant species from New Mexico within the United States and 
the states of Chihuahua and Durango in Mexico. This rule extends the 
Act's protections to the species. We find that designating critical 
habitat for the swale paintbrush is not prudent.

DATES: This rule is effective January 6, 2025.

ADDRESSES: This final rule, supporting materials we used in preparing 
this rule (such as the species status assessment report), and comments 
we received on the June 8, 2023, proposed rule are available on the 
internet at https://www.regulations.gov under Docket No. FWS-R2-ES-
2022-0173.

FOR FURTHER INFORMATION CONTACT: Shawn Sartorius, Field Supervisor, 
U.S. Fish and Wildlife Service, New Mexico Ecological Services Field 
Office, 2105 Osuna Road NE, Albuquerque, NM 87113; telephone 505-346-
2525. Individuals in the United States who are deaf, deafblind, hard of 
hearing, or have a speech disability may dial 711 (TTY, TDD, or 
TeleBraille) to access telecommunications relay services. Individuals 
outside the United States should use the relay services offered within 
their country to make international calls to the point-of-contact in 
the United States.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act (16 U.S.C. 1531 et 
seq.), a species warrants listing if it meets the definition of an 
endangered species (in danger of extinction throughout all or a 
significant portion of its range) or a threatened species (likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range). If we determine that a 
species warrants listing, we must list the species promptly and 
designate the species' critical habitat to the maximum extent prudent 
and determinable. We have determined that the swale paintbrush meets 
the Act's definition of an endangered species; therefore, we are 
listing it as such. Listing a species as an endangered or threatened 
species can be completed only by issuing a rule through the 
Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq.).
    What this document does. This rule lists the swale paintbrush as an 
endangered species under the Act.
    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 habitat loss and 
fragmentation, hydrological alteration, altered fire regimes, effects 
from intensive grazing pressure, exotic plant invasion, climate change 
impacts (i.e., drought and increased cool season temperatures), and the 
cumulative effects of multiple stressors are threats to the swale 
paintbrush to the degree that listing it as an endangered species under 
the Act is warranted. Additionally, future collection risk may have 
compounding impacts on the species' viability.
    Section 4(a)(3) of the Act requires the Secretary of the Interior 
(Secretary), to the maximum extent prudent and determinable, 
concurrently with listing designate critical habitat for the species. 
We have determined that designating critical habitat for the swale 
paintbrush

[[Page 96603]]

is not prudent due to the threat of collection and/or vandalism.

Previous Federal Actions

    Please refer to our June 8, 2023, proposed listing rule (88 FR 
37490) for a detailed description of previous Federal actions 
concerning the swale paintbrush.

Peer Review

    A species status assessment (SSA) team prepared an SSA report for 
the swale paintbrush. The SSA team was composed of Service biologists, 
in consultation with other species experts. The SSA report represents a 
compilation of the best scientific and commercial data available 
concerning the status of the species, including the impacts of past, 
present, and future factors (both negative and beneficial) affecting 
the species.
    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 
2016, memorandum updating and clarifying the role of peer review in 
listing and recovery actions under the Act, we solicited independent 
scientific review of the information contained in the swale paintbrush 
SSA report. As discussed in our June 8, 2023, proposed rule (88 FR 
37490), we sent the SSA report to four independent peer reviewers and 
received two responses. The peer reviews can be found at https://www.regulations.gov at Docket No. FWS-R2-ES-2022-0173. In preparing the 
proposed rule, we incorporated the results of these reviews, as 
appropriate, into the SSA report, which is the foundation for the 
proposed rule and this final rule. A summary of the peer review 
comments and our responses can be found in the proposed rule (88 FR 
37490 at 37491-37492, June 8, 2023).

Summary of Changes From the Proposed Rule

    Based on information we received during the June 8, 2023, proposed 
rule's public comment period, we made the following changes in this 
final rule:
    (a) We refine our discussion of grazing as a threat under Summary 
of Biological Status and Threats, below;
    (b) We provide additional discussion under Prudency Determination 
for critical habitat, below, to better convey the risks and 
consequences of collection events for the species. These additions 
provide additional support for our not-prudent critical habitat 
determination; and
    (c) We update our list of activities that may qualify as ``take'' 
under section 9 of the Act (see Available Conservation Measures, below) 
to minimize redundant wording.

Summary of Comments and Recommendations

    In the proposed rule published on June 8, 2023 (88 FR 37490), we 
requested that all interested parties submit written comments on the 
proposal by August 7, 2023. We also contacted appropriate Federal and 
State agencies, Tribal entities, scientific experts and organizations, 
and other interested parties and invited them to comment on the 
proposal. A newspaper notice inviting general public comment was 
published in the Hidalgo County Herald. We did not receive any requests 
for a public hearing. All substantive information we received during 
the comment period has either been incorporated directly into this 
final determination or is addressed below.

Public Comments

    (1) Comment: Multiple commenters requested that we designate a 
sufficiently large area of critical habitat--hundreds if not thousands 
of acres--to obviate the risk of illegal collection and that we 
designate at least two areas of unoccupied critical habitat in the 
United States--ideally on Federal or public lands--to serve as 
reintroduction habitat. They suggested that much of the southern Animas 
Valley could be assumed to be potential habitat given that species had 
been documented at a second site, the Cowan Ranch site, in 1993, and 
the area contains many of the physical or biological features essential 
for the conservation of the species (i.e., areas within the elevational 
range with the same fine-textured soils, vegetative communities, and 
low-gradient swales).
    Our response: As we explain in our response to (2) Comment, below, 
we maintain that designating occupied areas as critical habitat places 
increased risk on the swale paintbrush; thus, designating critical 
habitat for the species is not prudent. Accordingly, we do not think it 
prudent to designate the area suggested by these commenters.
    That said, we acknowledge that there are likely additional areas 
throughout the Animas Valley that may contain the physical and 
biological features essential for the conservation of the species. As 
mentioned in the species' SSA report, we acknowledge that the species 
may possibly be extant at the Cowan Ranch site, given its similarity of 
climatic and environmental conditions and land-use history to the Gray 
Ranch site (Service 2023, pp. 48-49). However, available information 
that we have on the species' habitat requirements indicates that the 
swale paintbrush may be more reliant on microhabitat features that are 
unknown or unmeasured (Service 2023, pp. 99-100).
    To aid in the conservation of the species, we have conducted 
habitat assessments to identify areas of State and Federal lands in the 
vicinity of the known occupied habitat that might contain additional 
populations of the species and/or serve as suitable habitat for 
potential future reintroduction efforts. Multiple searches for suitable 
habitat on public trust lands--across years and surveyors--have failed 
to yield additional observations of swale paintbrush or locate habitat 
comparable to the Gray Ranch site (Roth 2017, pp. 4-6; Service 2024a, 
entire; Service 2024b, entire). Additionally, surveys within areas of 
potentially suitable habitat on private land in the vicinity of the 
known site have not yielded additional populations of the species (Roth 
2017, pp. 4-6; Roth 2020, pp. 3, 5).
    When designating critical habitat, the Act and our implementing 
regulations require that we distinguish areas that are occupied by the 
species from those that are unoccupied by the species at the time of 
listing. That means that we cannot designate a large tract of the 
Animas Valley as critical habitat for the swale paintbrush without 
distinguishing those areas within the designation that are occupied by 
the species from those areas unoccupied by the species. To claim that 
the entire designation is ``occupied'' would stretch that term beyond 
its reasonable definition and imply that we assume the swale paintbrush 
is more widely distributed than it is based on the best available 
information. Therefore, the approach suggested by the commenters would 
not avoid the publication of relatively precise swale paintbrush 
locality data, which would put this rare species at risk of illegal 
collection and/or vandalism events. These risks are explained further 
below, under Prudency Determination.
    (2) Comment: Multiple commenters requested that we reconsider our 
``not prudent'' determination for critical habitat. The commenters 
suggested that a ``not prudent'' determination was not defensible for a 
few reasons. First, one of the commenters suggested that we did not 
adequately weigh the collection risk against the benefits of critical 
habitat designation, citing as support the Natural Resources Defense 
Council v. U.S. Dept. of Interior, 113 F.3d 1121 (9th Cir. 1997) court 
opinion. Second, multiple commenters stated that there is not a 
documented collection risk to swale paintbrush or other plant species;

[[Page 96604]]

the given examples of illegal collection were all from herpetofauna and 
were all dated examples. Finally, they stated that the plant has little 
to no commercial value and, thus, does not have as much inherent risk 
for illegal collection.
    Our response: The Act requires the Service to designate critical 
habitat to the maximum extent prudent and determinable, and we 
recognize that--while the Act provides some limited flexibility to find 
that the designation of critical habitat should not be undertaken for a 
particular species--not-prudent determinations are generally expected 
to be rare (see 88 FR 40764 at 40768; June 22, 2023, and 89 FR 24300 at 
24315-24317; April 5, 2024). Our regulations at 50 CFR 424.12 outline a 
non-exhaustive list of circumstances in which such designation may not 
be prudent, including when 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.
    In the case that we find the designation of critical habitat would 
not be prudent, we must state the rationale in our proposed and final 
rules. While we must provide our rationale, a weighing analysis--such 
as the one suggested by one of the commenters--is conducted in 
situations when we are designating critical habitat and considering 
whether any areas should be excluded from such designation under 
section 4(b)(2) of the Act; weighing analyses are not a component of a 
determination of whether designation of critical habitat may not be 
prudent. This point was noted in the dissenting opinion of the Natural 
Resources Defense Council v. U.S. Dept. of Interior, 113 F.3d 1121, 
lawsuit.
    In the preamble to both the 2018 proposed rule (83 FR 35193 at 
35197, July 25, 2018) and the 2019 final rule (84 FR 45020 at 45040, 
August 27, 2019) revising the critical habitat regulations at 50 CFR 
424.12 that we administer jointly with the National Marine Fisheries 
Service (collectively referred to as the ``Services''), we recognized 
the confusion surrounding past regulatory language that indicated that 
it would not be prudent to designate critical habitat when 
``designation of critical habitat would not be beneficial to the 
species.'' As this phrase has been interpreted in ways that we did not 
intend, including creating the implication that a balancing analysis 
was a required component of prudency determinations under the Act, the 
Services removed the ``not be beneficial to the species'' language from 
the regulations in 2019 (84 FR 45020 at 45053, August 27, 2019). In the 
2023 proposed rule (88 FR 40764 at 40768 and 40774, June 22, 2023) and 
the 2024 final rule (89 FR 24300 at 24318; April 5, 2024) to revise the 
regulations at 50 CFR 424.12, the Services do not propose to reinstate 
the ``not be beneficial to the species'' language.
    As noted above, under the Act's implementing regulations, we may 
determine that a critical habitat designation is not prudent if 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 (50 CFR 424.12(a)(1)(i)). This 
portion of the Act's implementing regulations has remained constant 
between the 2019 regulatory change (84 FR 45020, August 27, 2019) and 
the 2024 regulatory change (89 FR 24300; April 5, 2024). As we state in 
the proposed listing rule for swale paintbrush, effects from illegal 
collection (removal of plants and damage to habitat) will exacerbate 
the degree of risk to the known population of swale paintbrush (88 FR 
37490 at 37502-37503, June 8, 2023).
    In supporting our not-prudent critical habitat determination in the 
proposed listing rule for swale paintbrush, we outlined both documented 
instances of harm to similar species in other areas and documented 
instances of such harm to other species in the same geographic area (88 
FR 37490 at 37502-37503, June 8, 2023). Castilleja species may not be 
as desirable as other plant species (e.g., orchids, cacti, and 
carnivorous plants); however, commercial value for Castilleja seed is 
apparent from online native seed markets. Although we evaluate the 
exposure likelihood for illegal collection of swale paintbrush to range 
from unlikely to possible, the severity of consequences is moderate to 
severe, depending on the intensity of the collection pressure relative 
to the abundance of plants in a given year. For instance, the estimated 
abundance of the known population in 2017 may have been as few as two 
individuals; if collection had occurred within that year, the 
implications could have been catastrophic to reproductive effort and/or 
seedbank replenishment. In short, given the limited distribution and 
abundance of the species, the limited longevity of the plant's seeds in 
the seedbank and dependence of the species on the seedbank, and the 
high severity of consequences that increased collection pressure could 
have on the species and its seedbank, the risks of adverse effects from 
collection pose a threat to the species.
    Since proposing to designate critical habitat involves publicly 
publishing precise locality information and distinguishing occupied 
from unoccupied critical habitat units, this risk cannot be mitigated. 
Therefore, we maintain the determination that it is not prudent to 
designate critical habitat for swale paintbrush. We added additional 
discussion pertaining to the risks associated with a critical habitat 
designation under Prudency Determination, below.
    (3) Comment: One commenter suggested that, as an alternative to 
designating critical habitat, we develop and implement a conservation 
plan for swale paintbrush sufficient to support a critical habitat 
exclusion.
    Our response: Although there is not a formal conservation plan in 
place that lists swale paintbrush as a covered species, there are 
multiple ongoing efforts aimed at benefitting the species, its habitat, 
or both. Critical habitat designation is one tool in our toolbox for 
enacting conservation and/or recovery of the species, and the lack of a 
critical habitat designation does not beget a lack of conservation 
effort for the species. As part of our survey and monitoring efforts 
for the swale paintbrush--which were initiated prior to proposing to 
list this species--we have been working to identify areas of 
potentially suitable swale paintbrush habitat within the Animas Valley 
that might contain unknown populations and/or serve as potential 
reintroduction sites for future conservation or recovery efforts. 
Additionally, we have worked with the landowners as well as State, 
nongovernmental, and other Federal agency partners to collect and 
maintain ex situ seed storage of 77 maternal lines of the species, with 
59 lines being maintained at two storage institutions (Service 2023, p. 
33). One storage collection is intended for research, grow out, seed 
increases, and eventual return to the wild; the other collection is 
intended for long-term back-up storage. Finally, although the swale 
paintbrush is not listed as a covered species under the Malpai 
Borderlands Habitat Conservation Plan (HCP), discussed in more detail 
under Conservation Efforts and Regulatory Mechanisms, below, this plan 
has the potential to maintain and enhance the grassland ecosystems in 
which the swale paintbrush occurs (Service 2023, pp. 31-33). Finally, 
during the June 8, 2023, proposed rule's public comment period, we 
received information from the landowners stating that they have, and 
will, continue to avoid grazing near swale paintbrush populations 
during the plant's active season (Animas Foundation 2023, entire).

[[Page 96605]]

    Additionally, for a critical habitat exclusion under section 
4(b)(2) of the Act, the mechanism through which areas of critical 
habitat would be excluded from designation based on conservation plans, 
we must first propose to designate critical habitat. As discussed in 
other comments, above, and under Prudency Determination, below, we are 
not proposing to designate critical habitat due to the risk that doing 
so would exacerbate the degree of risk to the known population by 
publishing locality information.
    (4) Comment: One commenter provided information and suggested that 
grazing is a more nuanced influential factor for the swale paintbrush 
than was presented in the June 8, 2023, proposed rule. The commenter 
also stated that observations from the known population indicate that 
the species may be reliant on heavy disturbance.
    Our response: In this final rule, we add more nuance to the 
discussion of grazing and disturbance under ``Effects of Intensive 
Grazing,'' below. While the swale paintbrush requires canopy gaps that 
are maintained by periodic disturbance through natural processes (e.g., 
hydrological cycles, seasonally appropriate fires, burrowing, cool 
season grazing), intensive disturbance, such as mechanical tillage, 
particularly during the active season, is currently a documented threat 
for Castilleja species (see 62 FR 31740, June 11, 1997; 88 FR 46088 at 
46092, July 19, 2023; Service 2023, pp. 53-82). Thus, the best 
available information does not support that the swale paintbrush is 
reliant on heavy disturbance, and further research would be needed to 
assess the use of anthropogenic disturbance for stimulating swale 
paintbrush emergence and growth.

I. Final Listing Determination

Background

    A thorough review of the taxonomy, life history, and ecology of the 
swale paintbrush is presented in the SSA report (Service 2023, entire). 
The swale paintbrush (also known as the glowing Indian paintbrush and 
the ornate paintbrush) is an annual species of flowering plant in the 
family Orobanchaceae. There is no taxonomic uncertainty surrounding the 
validity of swale paintbrush as a species (Egger 2002, pp. 193, 195; 
Integrated Taxonomic Information System (ITIS) 2022, unpaginated); 
thus, we recognize swale paintbrush as a valid species and, therefore, 
a listable entity under the Act.
    The swale paintbrush is native to the grassland ecosystems of 
Hidalgo County, New Mexico, in the United States and to the eastern 
Sierra Madre Occidental in Chihuahua and Durango in Mexico (McIntosh 
1994, pp. 329-330). The species has been historically documented from 
13 sites: 2 sites within Hidalgo County, New Mexico; 10 sites in 
Chihuahua, Mexico; and 1 site in Durango, Mexico. The swale paintbrush 
was first observed from a site in Chihuahua, Mexico, in 1887, but not 
discovered in New Mexico until 1993 (Service 2023, pp. 6-11). The swale 
paintbrush was last observed in Mexico in 1985, and in New Mexico in 
2021. Currently, the species is only known to occur at a single site in 
the Animas Valley of Hidalgo County, New Mexico: the Gray Ranch site. 
Additional surveys within suitable habitat in the vicinity of known 
sites have not yielded additional locations for the species (Roth 2017, 
p. 3; Roth 2020, pp. 5, 7; Service 2024b, entire). The current status 
of swale paintbrush at the other historical sites is unknown.
    Given the species' overall rarity, little is known about the 
habitat requirements for swale paintbrush. Across the species' 
historical range, swale paintbrush has been observed in relatively 
level, seasonally wet grassland habitats at elevations ranging from 
approximately 1,500-2,300 meters (m) (4,920-7,550 feet (ft)) (Service 
2023, pp. 6-20). Species within the genus Castilleja are root 
hemiparasites, meaning that plant vigor depends on exploitation of host 
plants for carbon, nitrogen, and other nutrients (Heckard 1962, p. 29). 
Castilleja plants begin to establish connections with host plant roots 
(via structures called haustoria) as seedlings (Heckard 1962, p. 28). 
For the swale paintbrush, alkali sacaton (Sporobolus airoides) and blue 
grama (Bouteloua gracilis) are thought to be the primary host plants 
within the Animas Valley populations.
    Swale paintbrush individuals have one or a few erect stems that 
stand 20-50 centimeters (cm) (7.9-19.7 inches (in)) in height. Plants 
have oblong leaves with strongly wavy leaf margins, and floral bracts 
are typically off-white to very pale yellow (New Mexico Rare Plant 
Technical Council (NMRPTC) 1999, unpaginated), although reddish phases 
of the plant have been observed within herbarium records. Across the 
range, aspects of the swale paintbrush's life cycle seem timed to 
monsoon season precipitation patterns. Plants germinate between April 
and June, flower between late-May and late-August (coincident with 
monsoonal rainfall), and set seed in late August through October 
(NMRPTC 1999, unpaginated). The longevity of swale paintbrush in the 
seedbank is unknown; however, the longevity of surrogate Castilleja 
species is up to 5 years in storage and 2 years in the wild (Service 
2023, pp. 22-24).

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and the implementing 
regulations in title 50 of the Code of Federal Regulations set forth 
the procedures for determining whether a species is an endangered 
species or a threatened species, issuing protective regulations for 
threatened species, and designating critical habitat for endangered and 
threatened species. On April 5, 2024, jointly with the National Marine 
Fisheries Service, the Service issued a final rule that revised the 
regulations in 50 CFR 424 regarding how we add, remove, and reclassify 
endangered and threatened species and what criteria we apply when 
designating listed species' critical habitat (89 FR 24300). On the same 
day, the Service published a final rule revising our protections for 
endangered species and threatened species at 50 CFR 17 (89 FR 23919). 
These final rules are now in effect and are incorporated into the 
current regulations. Our analysis for this final decision applied our 
current regulations. Given that we proposed listing this species under 
our prior regulations (revised in 2019), we have also undertaken an 
analysis of whether our decision would be different if we had continued 
to apply the 2019 regulations; we concluded that the decision would be 
the same. The analyses under both the regulations currently in effect 
and the 2019 regulations are available on https://www.regulations.gov.
    The Act defines an ``endangered species'' as a species that is in 
danger of extinction throughout all or a significant portion of its 
range, and a ``threatened species'' as a species that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether any species is an endangered species or a threatened 
species because of any of the following factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.

[[Page 96606]]

    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the species' expected response and 
the effects of the threats--in light of those actions and conditions 
that will ameliorate the threats--on an individual, population, and 
species level. We evaluate each threat and its expected effects on the 
species, then analyze the cumulative effect of all of the threats on 
the species as a whole. We also consider the cumulative effect of the 
threats in light of those actions and conditions that will have 
positive effects on the species, such as any existing regulatory 
mechanisms or conservation efforts. The Secretary determines whether 
the species meets the definition of an ``endangered species'' or a 
``threatened species'' only after conducting this cumulative analysis 
and describing the expected effect on the species.
    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 which is 
further described in the 2009 Memorandum Opinion on the foreseeable 
future from the Department of the Interior, Office of the Solicitor (M-
37021, January 16, 2009; ``M-Opinion,'' available online at https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37021.pdf). 
The foreseeable future extends as far into the future as the U.S. Fish 
and Wildlife Service and National Marine Fisheries Service (hereafter, 
the Services) can make reasonably reliable predictions about the 
threats to the species and the species' responses to those threats. We 
need not identify the foreseeable future in terms of a specific period 
of time. We will describe the foreseeable future on a case-by-case 
basis, using the best available data and taking into account 
considerations such as the species' life-history characteristics, 
threat-projection timeframes, and environmental variability. In other 
words, the foreseeable future is the period of time over which we can 
make reasonably reliable predictions. ``Reliable'' does not mean 
``certain''; it means sufficient to provide a reasonable degree of 
confidence in the prediction, in light of the conservation purposes of 
the Act.

Analytical Framework

    The SSA report documents the results of our comprehensive 
biological review of the best scientific and commercial data regarding 
the status of the species, including an assessment of the potential 
threats to the species. The SSA report does not represent our decision 
on whether the species should be listed as an endangered or threatened 
species under the Act. However, it does provide the scientific basis 
that informs our regulatory decisions, which involve the further 
application of standards within the Act and its implementing 
regulations and policies.
    To assess swale paintbrush viability, we used the three 
conservation biology principles of resiliency, redundancy, and 
representation (Shaffer and Stein 2000, pp. 306-310). Briefly, 
resiliency is the ability of the species to withstand environmental and 
demographic stochasticity (for example, wet or dry, warm or cold 
years); redundancy is the ability of the species to withstand 
catastrophic events (for example, droughts, large pollution events); 
and representation is the ability of the species to adapt to both near-
term and long-term changes in its physical and biological environment 
(for example, climate conditions, pathogens). In general, species 
viability will increase with increases in resiliency, redundancy, and 
representation (Smith et al. 2018, p. 306). 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, which we then used to inform our regulatory decision.
    The following is a summary of the key results and conclusions from 
the SSA report; the full SSA report can be found at Docket No. FWS-R2-
ES-2022-0173 on https://www.regulations.gov.

Summary of Biological Status and Threats

    In this discussion, we review the biological condition of the 
species and its resources, and the threats that influence the species' 
current and future condition, in order to assess the species' overall 
viability and the risks to that viability. We note that, by using the 
SSA framework to guide our analysis of the scientific information 
documented in the SSA report, we have analyzed the cumulative effects 
of identified threats and conservation actions on the species. To 
assess the current and future condition of the species, we evaluate the 
effects of all the relevant 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. For a full 
description of our analyses, see the swale paintbrush SSA report 
(Service 2023, entire).

Species Needs

    The individual, population-level, and species-level needs of the 
swale paintbrush are summarized in tables 1 through 3, below. For 
additional information, please see the SSA report (Service 2023, 
chapter 2).

[[Page 96607]]



    Table 1--The Ecological Requisites for Survival and Reproductive Success of Swale Paintbrush Individuals
----------------------------------------------------------------------------------------------------------------
               Life stage                         Requirements                        Description
----------------------------------------------------------------------------------------------------------------
Seeds--germination......................  Suitable abiotic conditions   Winter temperatures below 2
                                                                        degrees Celsius (36 degrees Fahrenheit)
                                                                        for cold stratification.
                                          ...........................   Suitable warmth, light, and soil
                                                                        moisture for germination of seeds; cool
                                                                        season precipitation supports
                                                                        germination soil moisture.
Seedlings and Vegetative Plants--         Suitable biotic and abiotic   Adequate monsoonal rainfall June
 establishment and growth.                 conditions                   through August, the critical rainfall
                                                                        period for swale paintbrush, for growth
                                                                        and establishment.
                                          ...........................   Proximity of surrounding plants,
                                                                        likely alkali sacaton (Sporobolus
                                                                        airoides) and/or blue grama (Bouteloua
                                                                        gracilis), for increased water and
                                                                        nutrient uptake via parasitic haustoria.
                                          ...........................   Lack of herbivory throughout
                                                                        germination, establishment, and growth
                                                                        periods.
Flowering Plants--reproduction..........  Pollination                   Presence of suitable pollinators
                                                                        during the flowering season (June to
                                                                        September).
                                          ...........................   Lack of herbivory through flower
                                                                        production (June to September) and seed
                                                                        set (July to October).
----------------------------------------------------------------------------------------------------------------


 Table 2--Population-Level Requisites Necessary for a Healthy Population
                           of Swale Paintbrush
------------------------------------------------------------------------
        Resiliency type              Requirements           Detail
------------------------------------------------------------------------
Demographic....................  Population growth     The long-
                                  rate ([lambda])      term [lambda]
                                                       needs to be high
                                                       enough to rebound
                                                       from periodic
                                                       population
                                                       crashes, i.e., on
                                                       average [lambda]
                                                       > 1.0.
                                 Population size (N)  
                                                       Sufficiently
                                                       large N to
                                                       withstand
                                                       periodic
                                                       stochastic events
                                                       and population
                                                       crashes.
                                 ...................   The N
                                                       required may vary
                                                       geographically
                                                       across
                                                       populations.
Habitat........................  Precipitation         Adequate
                                                       quantity and
                                                       timing of cool
                                                       season rainfall
                                                       to allow for
                                                       germination and
                                                       establishment.
                                 ...................   Adequate
                                                       quantity and
                                                       timing of
                                                       monsoonal
                                                       rainfall during
                                                       the critical
                                                       rainfall period
                                                       of swale
                                                       paintbrush (June
                                                       through August)
                                                       to allow for
                                                       germination,
                                                       establishment,
                                                       growth, survival,
                                                       and reproduction.
                                 Habitat               Presence
                                                       of host species,
                                                       likely alkali
                                                       sacaton, for
                                                       hemiparasitic
                                                       relationships and
                                                       increased uptake
                                                       of water and
                                                       nutrients.
                                 ...................   Minimal
                                                       to no nonnative
                                                       vegetation that
                                                       outcompetes swale
                                                       paintbrush, its
                                                       host species, or
                                                       pollinator forage
                                                       and host plants
                                                       for soil
                                                       nutrients, light,
                                                       and water
                                                       resources.
                                 ...................   Absence
                                                       of persistent
                                                       chemical
                                                       contaminants that
                                                       interfere with
                                                       swale
                                                       paintbrush's,
                                                       host species', or
                                                       pollinator
                                                       species'
                                                       physiological
                                                       functionality.
                                 ...................   Limited
                                                       levels of
                                                       herbivory across
                                                       all life stages.
                                 ...................   Natural
                                                       processes, such
                                                       as hydrological
                                                       cycles and
                                                       periodic
                                                       disturbances,
                                                       that maintain
                                                       grassland
                                                       integrity (e.g.,
                                                       natural fire
                                                       return intervals
                                                       of low intensity;
                                                       seasonally
                                                       appropriate fires
                                                       that maintain
                                                       canopy gaps,
                                                       enhance grass and
                                                       forb growth, and
                                                       prevent
                                                       colonization by
                                                       woody species).
                                 Pollination           Presence
                                                       of suitable
                                                       pollinator(s).
                                 ...................  
                                                       Sufficient soil
                                                       moisture and
                                                       nutrients for
                                                       production of
                                                       flowers and
                                                       nectar resources.
                                 ...................   An
                                                       abundance and
                                                       diversity of
                                                       native flowering
                                                       plants within the
                                                       habitat to
                                                       attract
                                                       pollinators and
                                                       maintain genetic
                                                       connectivity
                                                       between swale
                                                       paintbrush
                                                       patches.
------------------------------------------------------------------------


  Table 3--Species-Level Ecology of Swale Paintbrush: Requirements for
                           Long-Term Viability
  [Ability to maintain self-sustaining populations over a biologically
                          meaningful timeframe]
------------------------------------------------------------------------
                                  Species-level
             3 Rs                   requisites          Description
------------------------------------------------------------------------
Resiliency....................  Self-sustaining    Self-sustaining
                                 populations        populations are
                                 across the         demographically,
                                 species' range.    genetically, and
                                                    physiologically
                                                    robust; have
                                                    sufficient quantity
                                                    of high-quality
                                                    habitat; and are
                                                    free of, or have
                                                    manageable, threats.
Redundancy....................  Sufficient         Sufficient
                                 distribution of    distribution to
                                 populations to     guard against
                                 spread risk.       catastrophic events
                                                    wiping out portions
                                                    of the species'
                                                    adaptive diversity
                                                    and the species as a
                                                    whole (i.e., to
                                                    reduce covariance
                                                    among populations);
                                                    populations spread
                                                    out geographically
                                                    but also
                                                    ecologically
                                                    (different
                                                    ecological
                                                    settings).
Representation................  Maintain adaptive  Populations
                                 diversity of the   maintained across
                                 species.           spatial and
                                                    environmental
                                                    gradients to
                                                    maintain ecological
                                                    and genetic
                                                    diversity.

[[Page 96608]]

 
                                Maintain           Maintain evolutionary
                                 evolutionary       drivers (gene flow,
                                 processes.         natural selection,
                                                    genetic drift) to
                                                    mimic historical
                                                    patterns.
------------------------------------------------------------------------

Risk Factors for the Swale Paintbrush

    The primary factors influencing swale paintbrush viability are 
habitat loss and fragmentation, hydrological alteration, altered fire 
regimes, effects from intensive grazing pressure, exotic plant 
invasion, climate change impacts (i.e., drought and increased cool 
season temperatures), and the cumulative effects of multiple stressors. 
Additionally, future collection risk may have compounding impacts on 
the species' viability. The majority of information pertaining to these 
threats is based on the New Mexico portion of the species' range; 
however, based on visual inspections of aerial imagery and the limited 
information we have on the historical sites, we estimate that these are 
rangewide threats to this species. These stressors and their effects to 
the swale paintbrush are summarized below.
Habitat Loss and Fragmentation
    Habitat loss (Factor A) results in mortality of active plants, 
within-site seedbank loss, reduction in available habitat, overall 
decline in occupied area and abundance, increased edge effects, and 
decreased genetic exchange (Oostermeijer 2003, p. 3 and references 
therein). Edge effects include reduced wildlife use of and travel 
through habitat (and the associated decrease in genetic exchange 
through decreased rates of pollinator visitation and/or seed 
dispersal), reduced infiltration of precipitation, altered surface and 
subsurface hydrology, increased human activities, and exotic plant 
invasion (Forman and Alexander 1998, pp. 210, 223; Bhattacharya et al. 
2003, p. 37; Raiter et al. 2018, pp. 445-446; Sawyer et al. 2020, p. 
934). The combined effects of habitat loss and edge effects can lead to 
fragmented and small populations that have reduced genetic exchange, 
which leads to reduced reproductive potential and adaptive capacity 
(Oostermeijer 2003, p. 1 and reference therein). Major sources of 
habitat loss and fragmentation within the swale paintbrush's range 
include land conversion to agriculture and development associated with 
human habitation and transportation.
Hydrological Alteration
    The swale paintbrush relies on cool season precipitation, monsoon 
precipitation, and a suitable surface/subsurface hydrology to complete 
its life cycle and maintain its seedbank. Thus, this species is 
sensitive to hydrological alterations (Factor A), such as artificial 
drought and emergence season inundation. Artificial drought occurs when 
upslope obstacles to, or diversions of, surface flows starve downslope 
areas that would have otherwise received those flows (Raiter et al. 
2018, pp. 445-446; Roth 2020, p. 5; Nichols and Degginger 2021, 
entire). One report suggests that disturbance altered local hydrology 
in the Gray Ranch area, starving previously occupied patches of habitat 
and rendering them unsuitable for the species (Roth 2020, p. 5). 
Alternately, downslope obstacles to surface flows may permanently or 
seasonally flood upslope areas that would have otherwise shed flows to 
downslope areas. Prolonged inundation causes forb mortality, reducing 
forb cover and increasing graminoid (grass-like) cover and height 
(Insausti et al. 1999, pp. 267, 269-271). If inundation interrupts the 
species' annual life cycle, existing seedbanks may become depleted and/
or seedbank replenishment may be thwarted, depending on the timing, 
intensity, and/or duration of flooding (Insausti et al. 1999, p. 272).
Altered Fire Regime
    Fire intensity, frequency, and seasonality (Factor A) have direct 
and indirect influences on swale paintbrush. Swale paintbrush relies 
heavily on canopy gaps and mineralized soil nutrient inputs for 
establishment and growth. Fire fosters these conditions and also 
reduces the cover of woody vegetation. It stimulates the growth of 
other grasses, including blue grama (which is one of swale paintbrush's 
host plants), and forbs (which support pollinators and, hence, swale 
paintbrush pollination) (Johnson 2000, unpaginated; Anderson 2003, 
unpaginated; Lybbert et al. 2017, p. 1030; Sam 2020, p. 69; Bestelmeyer 
et al. 2021, p. 181).
    Prehistoric fire return intervals in Madrean ecosystems range from 
2.5-10 years. Grasslands, a key ecosystem for the swale paintbrush, are 
more likely to convert to shrublands or woodlands when fire return 
intervals exceed 10 years. Fire management regimes and grazing 
intensity (described below) affect fire frequency, and these habitats 
are sensitive to fire suppression and herbivore removal of fine fuels, 
which decrease fire frequency and may lead to increased intensity of 
fires when they do occur (Kaib et al. 1996, pp. 253, 260; Swetnam and 
Baisan 1996, pp. 23, 25; Brown and Archer 1999, pp. 2393-2394; Poulos 
et al. 2013, pp. 3-4, 8; NatureServe 2021, unpaginated). Excessive fire 
frequency, though less likely to occur, may also have detrimental 
impacts on swale paintbrush populations. For example, alkali sacaton's 
post-fire recovery time is 2-4 years, and high fire frequency can lower 
pollinator abundance and diversity (Johnson 2000, unpaginated; Carbone 
et al. 2019, p. 7). In turn, decreased pollinator abundance and 
diversity results in decreased pollination rates of swale paintbrush, 
which then leads to decreased reproduction and seedbank replenishment.
    Uncharacteristic fire seasonality is likely to adversely affect 
swale paintbrush. While a spring fire season is characteristic of the 
Sierra Madre Occidental and adjacent Madrean ecosystems, a summer fire 
season is characteristic of the rest of the desert Southwest (Swetnam 
et al. 2001, pp. 5, 8; Poulos et al. 2013, p. 8). Current natural 
ignitions for the historical Gray Ranch area are reported to rarely 
start before the middle of April or after the middle of July (Brown 
1998, p. 250). However, fire prescriptions for the Animas Valley area 
are timed to avoid the breeding seasons of several wildlife species, 
potentially pushing prescription burns into mid-August, the swale 
paintbrush's reproductive season (Malpai Borderlands Group (MBG) 2008, 
pp. 63-116). If fire interrupts the species' annual life cycle, 
existing seedbanks may become depleted and/or seedbank replenishment 
may be thwarted.

[[Page 96609]]

Effects of Intensive Grazing
    The swale paintbrush occurs in grasslands that are used for 
grazing. Cool season grazing and/or other natural processes help to 
create the canopy gaps that this species needs for establishment (see 
Species Needs, above). Exclusion of grazing promotes canopy gap 
closure, especially under circumstances of reduced fire frequency, 
which results in reduced habitat suitability for the swale paintbrush's 
germination, establishment, and growth (Service 2023, pp. 22, 28, 51). 
However, excessive grazing pressure that results in significant canopy 
loss (Factor A) increases the potential for evaporation, erosion, and 
nutrient loss (Li et al. 2007, pp. 318, 329-331). These effects can 
reduce swale paintbrush productivity both directly and indirectly 
through impacts on the productivity of symbiotic and host species 
(Pimentel and Kounang 1998, pp. 419-421).
    Palatability of species in the genus Castilleja is considered poor 
for horses, poor to fair for cattle, and fair to good for sheep (New 
Mexico State University n.d., unpaginated). However, the swale 
paintbrush's slender stem morphology and erect growth habitat make them 
vulnerable to trampling by livestock when habitats are grazed during 
the plant's growing season. If grazing or trampling interrupt the 
species' annual life cycle, existing seedbanks may become depleted and/
or seedbank replenishment may be thwarted, depending on the timing, 
intensity, and/or duration of the grazing. Winter-spring grazing is 
least likely to affect the swale paintbrush's survival and reproduction 
directly. Excessive herbivory during winter-spring could result in 
shifting the fire season further into the growing season, which could 
have negative impacts on seedbank replenishment and viability.
Exotic Plant Invasion
    Exotic plants (Factor A) can become introduced to, and dispersed 
within, grassland habitats by the travel of both humans and animals. 
Invasive exotic plants could reduce the availability of canopy gaps 
and/or outcompete the swale paintbrush for available gaps, soil 
moisture, and soil nutrients, potentially both depleting the existing 
seedbank and reducing seedbank replenishment. Co-occurring noxious 
plant species also increase the risks of herbicide exposure. For a list 
of documented introduced species within the Gray Ranch area, see the 
SSA report (Service 2023, pp. 29-30). Introduced species in the 
vicinity of historical swale paintbrush sites in Mexico are unknown.
Climate Change Impacts
    Climate change (Factor E) has the potential to affect all of the 
following factors: drought (and associated increases in grazing 
pressure), flood, fire, and vulnerability to exotic plant invasion. The 
New Mexico sites are classified as an Apacherian-Chihuahuan Semi-Desert 
Grassland and Steppe ecological system within the U.S. Environmental 
Protection Agency (EPA) level 3 Madrean Archipelago ecoregion and the 
EPA level 4 Madrean Basin Grasslands ecoregion. This system is highly 
vulnerable to future climate changes. The remaining historical 
collection sites in Mexico are in Chihuahuan Semi-Desert Grassland and 
Steppe ecological systems within Sierra Madre Occidental ecoregions, 
which are moderately vulnerable to future climate changes.
    Projections for the Cloverdale hydrologic unit code (HUC) 08 
watershed predict increasing temperatures and less available soil 
moisture, which would be akin to prolonged drought. The elevated 
temperatures and increased aridity projected across the swale 
paintbrush's historical range render these systems vulnerable to 
conversion to shrub-steppe (Caracciolo et al. 2016, pp. 2-3; 
NatureServe 2021, unpaginated). These changes are likely to impact 
swale paintbrush populations at the northern- and southern-most extents 
of this species' range, including the verified extant population in New 
Mexico.
    Increased growing season aridity may stress the germination, 
establishment, growth, and reproduction of swale paintbrush plants, and 
increased winter temperatures may reduce swale paintbrush's capacity to 
overcome seed dormancy before seeds in the soil seedbank become 
nonviable. The combined effects of increased soil seedbank loss and 
reduced seedbank replenishment lead to smaller population sizes, and, 
thus, the species would be more susceptible to environmental and 
demographic stochasticity.
Collection Risk
    A future threat to the species is the emerging risk of collection 
(Factor B). Although no illegal collection events of swale paintbrush 
have been documented, other species within the genus Castilleja are 
horticulturally desirable. Many Castilleja species are readily 
available via online companies, and yellow-bracted species, 
aesthetically similar to the swale paintbrush, are marketed as rare.
    Currently, due to the species' rarity and limited distribution and 
risks of illegal collection to rare species, swale paintbrush locality 
data below the county level are not publicly available through online 
databases (e.g., SEINet, Natural Heritage New Mexico, New Mexico Rare 
Plants website). If the location of known occupied habitat became 
publicly available, risk of illegal collection could increase.
    There is a history of illegal collection occurring for other 
species at or within the near vicinity of the Gray Ranch site. These 
collection efforts targeted the Sonoran Desert toad (Incilius (=Bufo) 
alvarius; New Mexico Department of Game and Fish 2020, pp. 78-79), New 
Mexico ridge-nosed rattlesnake (Crotalus willardi obscurus; Harris Jr. 
and Simmons 1975, p. 6; Malpai Borderlands Group 2008, p. 60), and 
Mexican hog-nosed snake (Heterodon kennerlyi; Medina 2021, pers. 
comm.). For the New Mexico ridge-nosed rattlesnake specifically, 
collection over the period of 1961-1974 may have resulted in the loss 
of 130 individuals from the population (Service 2008, p. 37), and 
researchers encountered 15 illegal collectors from six States during a 
single season (Harris Jr. and Simmons 1975, p. 6). The swale paintbrush 
is easier to detect and collect than these mobile, camouflaged species. 
Thus, given the desirability of paintbrush species for horticultural 
use, the increased desirability of rare species, the inability of this 
species to evade detection and collection, and the history of illegal 
collection in the vicinity of the Gray Ranch, illegal collection is a 
potential future emerging threat for this species, especially if the 
location of known occupied habitat becomes publicly available. Further, 
given the small known extant range and population size of the swale 
paintbrush, its annual duration and reliance on frequent seedbank 
replenishment, and risks to its seedbank from stochastic events and 
other ongoing threats to the species, effects from collection (removal 
of plants and damage to habitat) would be deleterious and potentially 
catastrophic to the swale paintbrush.
Cumulative Effects
    In summary, swale paintbrush is likely adapted to withstand 
stochastic stressor events individually and intermittently. However, 
the increased intensity of, the increased frequency of, the co-
occurrence or consecutive occurrence of, and the synergistic effects 
between stochastic stressor events increase the risks to this species. 
Given the swale paintbrush's annual duration, reliance on frequent 
seedbank

[[Page 96610]]

replenishment, and low seed longevity, as few as 2 consecutive years of 
adverse environmental conditions or human-caused or natural adverse 
stochastic events could have catastrophic consequences for this 
species.
Current Condition
    The swale paintbrush was historically documented from 13 sites in 
the United States and Mexico: 2 sites in the Animas Valley of Hidalgo 
County, New Mexico, and 11 sites in the eastern Sierra Madre Occidental 
of Chihuahua and northern Durango in Mexico. Currently, only one known 
occupied site--the Gray Ranch site--exists within the Animas Valley of 
Hidalgo County, New Mexico, and the species was last observed at this 
site in 2021. The last observations of historical sites were in 1993 in 
New Mexico, and in 1985 in Mexico.
    We assessed the swale paintbrush's current condition using a two-
pronged approach. First, for all known occupied and historically 
collected swale paintbrush sites, we derived the amount and intensity 
of disturbed area and currently protected areas within the vicinity of 
each site using aerial imagery from the period of 2000 to 2020. Then, 
we used these data to estimate the possibility of swale paintbrush 
occupancy within the vicinity of the historical location and assigned 
each site into one of four categories: (1) known extant, (2) possibly 
extant, (3) possibly extirpated, and (4) presumed extirpated. Known 
extant means that the population has been observed within the last 
decade. Possibly extant means that the site is only known from 
herbarium records but has a reasonable potential for rediscovery; 
evidence of habitat loss or degradation is not substantial enough to 
presume complete loss of swale paintbrush habitat since the time of 
collection. Possibly extirpated means that the population is known only 
from herbarium records and has a low potential for rediscovery; 
evidence of habitat loss or degradation is substantial enough that loss 
of the species at the site is possible. Presumed extirpated means that 
the population is only known from herbarium records and has a very low 
potential for rediscovery; evidence of habitat loss or alteration is 
significant enough to presume complete loss of suitable habitat since 
the time of collection.
    Second, we conducted a more detailed assessment of the resiliency 
for the known occupied site at the Gray Ranch in the Animas Valley. 
Briefly, we considered the demographic factors (population abundance, 
occupied area, and count of patches within the last 2 years) and 
habitat factors (surface disturbance, herbicide exposure, fire regime, 
grazing regime, inundation seasonality, growing season canopy cover, 
and precipitation history). We assigned each factor into three 
condition categories; (1) high (factor values that are compatible with 
stable to increasing populations); (2) moderate (factor values that 
contribute to minimal rates of decline), or (3) low (factor values that 
contribute to high rates of decline). Our methodology and evaluations 
of viability are described in more detail in the swale paintbrush SSA 
report (Service 2023, chapter 4).
    Based on our assessment of the swale paintbrush's current 
conditions across all sites, one site (the Gray Ranch site) is known 
extant, four sites ranked as possibly extant, six sites ranked as 
possibly extirpated, and two sites ranked as presumed extirpated. Of 
the four possibly extant sites, swale paintbrush plants were last 
observed at the sites in 1899, 1903, 1979, and 1993. Although 
potentially suitable habitat may remain at some of the historical 
sites, particularly the four possibly extant sites, the size and 
abundance (i.e., resiliency) of the historical sites are unknown, and 
we cannot reasonably assume anything about the status of the species at 
these sites. Thus, the swale paintbrush has no verifiable redundancy 
and very limited representation throughout its known range.
    Based on our detailed assessment of current condition, the swale 
paintbrush has moderate to high resiliency at the Gray Ranch site. The 
most recent survey in September 2021 documented a minimum abundance of 
6,000 plants--higher than our range of provisional minimum viable 
population sizes (1,500-5,000 plants)--distributed across 2 patches and 
11 hectares (28 acres) of habitat in the Animas Valley. Generally, the 
site has moderate amounts of surface disturbance that would have 
limited influence on pollinator visitation rates. There has been no 
recent herbicide exposure within 300 meters (984 feet) of swale 
paintbrush patches within the last 15 years. Grazing during the 
species' active season within recent years has been avoided, and the 
disturbance regime (fire return intervals, inundation seasonality, 
grazing regime) combined with the recent precipitation history, have 
maintained favorable canopy cover that allows for the swale 
paintbrush's growth, establishment, and recent seedbank replenishment 
within the core of the population area.
    Although the Gray Ranch site is considered to have moderate to high 
resiliency currently, the small area that the species is known to 
occupy increases its risk of extirpation due to catastrophic events. 
The swale paintbrush is at risk of impacts from the cumulative impacts 
of multiple stressors because it is an annual species with a 
provisional seedbank viability of 2 years in the wild and frequent 
replenishment of the seedbank is essential to population persistence. 
Replenishment of the seedbank with viable seeds requires flower 
production, successful pollination, and ovule maturation, all of which 
are impacted by stochastic and catastrophic events such as: habitat 
loss and fragmentation (Factor A), hydrological alteration (Factor A), 
altered fire regimes (Factor A), effects from intensive grazing 
pressure (Factor A), exotic plant invasion (Factor A), climate change 
impacts (i.e., drought and increased cool season temperatures; Factor 
E), and the cumulative effects of multiple stressors. Additionally, 
future collection risk (Factor B) may have compounding impacts on the 
species' viability.
    Drought is the primary threat to the species, as increased 
frequency, intensity, and/or duration of drought can lead to decreased 
swale paintbrush survival through direct (e.g., drought stress, 
trampling, or herbivory) and indirect (e.g., increased grazing pressure 
within the habitat, increased fire risk, delayed post-fire recovery) 
mortality. Although grazing and fires help maintain canopy gaps, 
grazing and/or fires during the growing season can result in decreased 
swale paintbrush survival. Currently, grazing during the growing season 
is generally avoided at the Gray Ranch site; however, this site is used 
as a grass-banking pasture and may experience increased grazing 
pressure during times of drought. Grazing during the active season can 
result in trampling and mortality of the species. Fires during the 
growing season result in swale paintbrush mortality and, depending on 
the duration and intensity of the fire, prolonged recovery times for 
native vegetation. Decreased recovery times leave soils vulnerable to 
evaporation, erosion, nutrient loss, and invasive species 
establishment, all of which lead to decreased swale paintbrush 
survival.
    Taken altogether, the swale paintbrush has moderate to high 
resiliency within 1 population and unknown resiliency across the other 
12 historical sites. Although our analysis reflects our best assessment 
of the current conditions of disturbance at or in the vicinity of our 
estimates of historical site locations, the status of historically 
collected sites at Cowan Ranch of the Animas Valley and in the eastern 
Sierra Madre Occidental of Mexico is unknown. Rangewide,

[[Page 96611]]

specimens were collected from 1887-2021, with the most recent record 
from Mexico being collected in 1985. Additionally, outside of the known 
extant New Mexico site (the Gray Ranch site), there have been no 
reported estimates of abundance with the exception of qualitative 
reports of ``occasional'' for the distribution at the Keil 13388 site 
and ``few plants'' for Palmer 320 (Palmer 1906, unpaginated; Keil 1978, 
unpaginated; Service 2023, p. 19). Thus, we cannot reasonably conclude 
anything about the health or resiliency of any site except for the Gray 
Ranch site. Accordingly, the swale paintbrush has limited to no 
redundancy, depending on the status of the species at the historical 
sites. Even if the swale paintbrush remains extant at sites outside of 
Gray Ranch, the majority of sites are isolated, and there is limited 
potential for interpopulation rescue in the event of local 
extirpations. Finally, the swale paintbrush has limited representation. 
The Gray Ranch site exists at the northern periphery of the species' 
range and reflects only a small portion of the historical genetic and 
ecological diversity of the species.

Future Condition

    As part of the SSA, we also developed future condition scenarios to 
capture the range of uncertainties regarding future threats and the 
projected responses by the swale paintbrush. Our future condition 
assessments considered the projected impacts of increased habitat 
disturbance and climate changes across the swale paintbrush's 
historical range. Specifically, we considered the upper and lower 
bounds of plausible impacts of environmental variables related to 
aridity during the growing and reproductive seasons and seed chilling 
and cold stratification during the cool season. Because we determined 
that the current condition of the swale paintbrush is consistent with 
an endangered species (see Determination of Swale Paintbrush's Status, 
below), we are not presenting the results of the future scenarios in 
this rule. Please refer to the SSA report (Service 2023, chapter 5) for 
the full analysis of future scenarios.

Conservation Efforts and Regulatory Mechanisms

    Below is a brief description of conservation measures and 
regulatory mechanisms currently in place. Please see the SSA report for 
a more detailed description (Service 2023, chapter 3).
    The swale paintbrush is listed as an endangered species by the 
State of New Mexico. In New Mexico, the swale paintbrush exists on 
lands managed for livestock production in an ecologically responsible 
manner by the Animas Foundation (Brown 1998, p. 248). The Nature 
Conservancy (TNC), the former landowners of the Gray Ranch site, 
retains a conservation easement prohibiting development on the lands 
formerly known as the Gray Ranch (TNC 2022, unpaginated). While the 
easement does not ensure that range improvements will avoid adverse 
effects to the swale paintbrush, it ensures that the covered areas will 
remain open space.
    The Animas Foundation is a member of the Malpai Borderlands Group, 
a private, nonprofit organization that is dedicated to maintaining or 
increasing rangeland health and the viability of traditional 
livelihoods that maintain rangelands as open space (Malpai Borderlands 
Group 1994, p. 2; Brown 1998, p. 249; Malpai Borderlands Group 2008, 
pp. 1-2). Malpai Borderlands Group activities related to use, 
maintenance, and enhancement of rangelands fall within the scope of a 
habitat conservation plan (HCP) for all privately owned and State-trust 
rangelands in the Malpai Borderlands of Southern Arizona and New 
Mexico. Although the swale paintbrush is not a covered species under 
this plan, the species may benefit from the plan's covered activities 
and associated conservation measures (Service 2023, pp. 35-36, table 3-
1). These covered activities and associated conservation measures have 
the potential to maintain and enhance swale paintbrush habitat by 
restoring fire, minimizing erosion, and controlling invasive and exotic 
plant species. The Animas Foundation's participation in the HCP, beyond 
the grassbanking program, is unknown.
    Finally, we have partnered with the Animas Foundation, the State of 
New Mexico, and Albuquerque Bio Park to conduct and maintain ex situ 
seed collections of the swale paintbrush from the Gray Ranch site. 
Currently, 77 maternal lines have been collected and retained in 
offsite storage institutions for germination studies, grow out, seed 
increase, and potential reintroduction efforts.

Determination of Swale Paintbrush's Status

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets the definition of an endangered species or a 
threatened species. The Act defines an ``endangered species'' as a 
species in danger of extinction throughout all or a significant portion 
of its range, and a ``threatened species'' as a species likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether a species meets the definition of endangered species 
or threatened species because of any of the following factors: (A) The 
present or threatened destruction, modification, or curtailment of its 
habitat or range; (B) overutilization for commercial, recreational, 
scientific, or educational purposes; (C) disease or predation; (D) the 
inadequacy of existing regulatory mechanisms; or (E) other natural or 
manmade factors affecting its continued existence.

Status Throughout All of Its Range

    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the Act's section 4(a)(1) 
factors, we found that the swale paintbrush's distribution has declined 
from historical conditions. The swale paintbrush was documented from 13 
sites historically: 2 sites in the Animas Valley of Hidalgo County, New 
Mexico, and 11 sites in the eastern Sierra Madre Occidental of 
Chihuahua and northern Durango in Mexico. Of the 13 historical sites, 
only 1 site--the Gray Ranch site within the Animas Valley of Hidalgo 
County, New Mexico--is currently known to be extant. Swale paintbrush 
plants were last observed at the Gray Ranch site in September of 2021, 
with a minimum abundance of 6,000 plants distributed across 11 hectares 
(28 acres) of habitat. Of the 12 other historical sites, our analyses 
found that four sites ranked as ``possibly extant,'' six sites ranked 
as ``possibly extirpated,'' and two sites ranked as ``presumed 
extirpated.'' Although potentially suitable habitat may remain at some 
of the historical sites, the size and abundance (i.e., resiliency) of 
the historical sites is unknown, and we do not have information that 
these sites are resilient, stable, or able to contribute to the 
viability of the species.
    Although the Gray Ranch site is considered to have moderate to high 
resiliency currently--based on the most recent abundance estimate 
exceeding the minimum viable population size and habitat conditions of 
the Animas Valley being generally favorable--the small area that the 
species is known to occupy increases its risk of extirpation due to 
catastrophic events. The swale paintbrush is at risk from the 
cumulative impacts of multiple stressors because it is an annual 
species with a provisional seedbank viability of 2 years and frequent 
replenishment of the seedbank is essential to population persistence. 
Replenishing the seedbank

[[Page 96612]]

with viable seeds requires flower production, successful pollination, 
and ovule maturation, all of which are impacted by stochastic and 
catastrophic events such as habitat loss and fragmentation (Factor A), 
hydrological alteration (Factor A), altered fire regimes (Factor A), 
effects from intensive grazing pressure (Factor A), exotic plant 
invasion (Factor A), climate change impacts (i.e., drought and 
increased cool season temperatures; Factor E), and the cumulative 
effects of multiple stressors. Additionally, future collection risk 
(Factor B) may have compounding impacts on the species' viability.
    Drought is the primary threat to the species, as increased 
frequency, intensity, and/or duration of drought can lead to decreased 
swale paintbrush survival through direct and indirect mortality. 
Although grazing and fires can help maintain canopy gaps, grazing and/
or fires during the growing season can result in decreased swale 
paintbrush survival. Currently, grazing during the growing season is 
avoided at the Gray Ranch site; however, this site is used as a grass-
banking pasture and may experience increased grazing pressure during 
times of drought. Grazing during the active season can result in 
trampling and mortality of the species. Fires during the growing season 
result in swale paintbrush mortality and, depending on the duration and 
intensity of the fire, prolonged recovery times for native vegetation. 
Decreased recovery times leave soils vulnerable to evaporation, 
erosion, nutrient loss, and invasive species establishment, all of 
which lead to decreased swale paintbrush survival. Thus, decreased 
swale paintbrush survival results in decreased seedbank replenishment 
and, by extension, decreased seedbank viability, which increases the 
species' risk of extinction.
    Overall, the swale paintbrush has limited viability due to its 
limited resiliency, lack of redundancy, and limited representation at 
the species level. The species currently occurs at a single site at the 
northern periphery of its known historical range and is vulnerable to 
the impacts of catastrophic events. Given its limited distribution, the 
species likely reflects only a small portion of its historical genetic 
and ecological diversity; thus, the swale paintbrush has limited 
capacity to adapt to long-term environmental changes (i.e., limited 
representation). Even if the swale paintbrush is extant at sites 
outside of the Gray Ranch, the majority of these potentially extant 
historical sites are isolated, and, therefore, there is limited 
potential for interpopulation rescue in the event of local 
extirpations.
    Accordingly, we find that the swale paintbrush is presently in 
danger of extinction throughout all of its range based on small 
population size and the species' risk from a number of contemporary 
threats. The risk of extinction is high due to a small population with 
no known potential for recolonization from nearby sources (no 
redundancy) and the species having limited viability within the 
seedbank. We do not find that a threatened status is warranted for the 
swale paintbrush because the species occupies a small geographic range 
that is currently vulnerable to stressors with the potential for 
catastrophic synergistic consequences. Thus, the species' limited 
resiliency, lack of redundancy, and limited representation currently 
place the species in danger of extinction, and these contemporary 
threats are only projected to increase in frequency, severity, extent, 
and/or duration into the future.
    Thus, after assessing the best available information, we determine 
that the swale paintbrush is in danger of extinction 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 
within the foreseeable future throughout all or a significant portion 
of its range. We have determined that the swale paintbrush is in danger 
of extinction throughout all of its range and accordingly did not 
undertake an analysis of any significant portions of its range. Because 
the swale paintbrush warrants listing as endangered throughout all of 
its range, our determination does not conflict with the decision in 
Center for Biological Diversity v. Everson, 435 F. Supp. 3d 69 (D.D.C. 
2020), because that decision related to significant portion of the 
range analyses for species that warrant listing as threatened, not 
endangered, throughout all of their range.

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that the swale paintbrush meets the Act's 
definition of an endangered species. Therefore, we are listing the 
swale paintbrush as an endangered species in accordance with sections 
3(6) and 4(a)(1) of the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition as a listed 
species, planning and implementation of 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, 
including the Service, 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 goal of this process is to restore listed 
species to a point where they are secure, self-sustaining, and 
functioning components of their ecosystems.
    The recovery planning process begins with development of a recovery 
outline made available to the public soon after a final listing 
determination. The recovery outline guides the immediate implementation 
of urgent recovery actions while a recovery plan is being developed. 
Recovery teams (composed of species experts, Federal and State 
agencies, nongovernmental organizations, and stakeholders) may be 
established to develop and implement recovery plans. The recovery 
planning process involves the identification of actions that are 
necessary to halt and reverse the species' decline by addressing the 
threats to its survival and recovery. The recovery plan 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. Revisions of the plan may 
be done to address continuing or new threats to the species, as new 
substantive information becomes available. The recovery outline, draft 
recovery plan, final recovery plan, and any revisions will be available 
on our

[[Page 96613]]

website as they are completed (https://www.fws.gov/program/endangered-species), or from our New Mexico Ecological Services Field Office (see 
FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their ranges 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.
    When this rule is effective (see DATES, above), funding for 
recovery actions will be available from a variety of sources, including 
Federal budgets, State programs, and cost-share grants for non-Federal 
landowners, the academic community, and nongovernmental organizations. 
In addition, pursuant to section 6 of the Act, the State of New Mexico 
will be eligible for Federal funds to implement management actions that 
promote the protection or recovery of the swale paintbrush. Information 
on our grant programs that are available to aid species recovery can be 
found at: https://www.fws.gov/service/financial-assistance.
    Please let us know if you are interested in participating in 
recovery efforts for the swale paintbrush. 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 of the Act is titled, ``Interagency Cooperation,'' and it 
mandates all Federal action agencies to use their existing authorities 
to further the conservation purposes of the Act and to ensure that 
their actions are not likely to jeopardize the continued existence of 
listed species or adversely modify critical habitat. Regulations 
implementing section 7 are codified at 50 CFR part 402.
    Section 7(a)(2) states that each Federal action agency shall, in 
consultation with the Secretary, ensure that any action they authorize, 
fund, or carry out is not likely to jeopardize the continued existence 
of a listed species or result in the destruction or adverse 
modification of designated critical habitat. Each Federal agency shall 
review its action at the earliest possible time to determine whether it 
may affect listed species or critical habitat. If a determination is 
made that the action may affect listed species or critical habitat, 
formal consultation is required (50 CFR 402.14(a)), unless the Service 
concurs in writing that the action is not likely to adversely affect 
listed species or critical habitat. At the end of a formal 
consultation, the Service issues a biological opinion, containing its 
determination of whether the Federal action is likely to result in 
jeopardy or adverse modification.
    Examples of discretionary actions for the swale paintbrush that may 
be subject to consultation procedures under section 7 are land 
management or other landscape-altering activities on Federal lands 
administered by the Bureau of Land Management and the U.S. Forest 
Service, as well as 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. 
Federal agencies should coordinate with the local Service Field Office 
(see FOR FURTHER INFORMATION CONTACT) with any specific questions on 
section 7 consultation and conference requirements.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to endangered plants. 
The prohibitions of section 9(a)(2) of the Act, and the Service's 
implementing regulations codified at 50 CFR 17.61, make it illegal for 
any person subject to the jurisdiction of the United States to commit, 
to attempt to commit, to solicit another to commit, or to cause to be 
committed any of the following acts with regard to any endangered 
plant: (1) import into, or export from, the United States; (2) remove 
and reduce to possession from areas under Federal jurisdiction; 
maliciously damage or destroy on any such area; or remove, cut, dig up, 
or damage or destroy on any other area in knowing violation of any law 
or regulation of any State or in the course of any violation of a State 
criminal trespass law; (3) deliver, receive, carry, transport, or ship 
in interstate or foreign commerce, by any means whatsoever and in the 
course of a commercial activity; or (4) sell or offer for sale in 
interstate or foreign commerce. Certain exceptions to these 
prohibitions apply to employees or agents of the Service, other Federal 
land management agencies, and State conservation agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered plants under certain circumstances. Service 
regulations governing permits for endangered plants are codified at 50 
CFR 17.62, and general Service permitting regulations are codified at 
50 CFR part 13. With regard to endangered plants, a permit may be 
issued for scientific purposes or for enhancing the propagation or 
survival of the species. The statute also contains certain exemptions 
from the prohibitions, which are found in sections 9 and 10 of the Act.
    It is the policy of the Services, as published in the Federal 
Register on July 1, 1994 (59 FR 34272), to identify, to the extent 
known at the time a species is listed, specific activities that will 
not be considered likely to result in violation of section 9 of the 
Act. To the extent possible, activities that will be considered likely 
to result in violation of section 9 of the Act will also be identified 
in as specific a manner as possible. The intent of this policy is to 
increase public awareness of the effect of a listing on proposed and 
ongoing activities within the range of the species.
    As mentioned above, certain activities that are prohibited under 
section 9 may be permitted under section 10 of the Act. In addition, to 
the extent currently known, the following activities will not be 
considered likely to result in violation of section 9 of the Act:
    (1) Normal residential landscaping activities on non-Federal lands 
that do not occur within known swale paintbrush habitat; and
    (2) Cool season livestock grazing (November to April) that is 
conducted in a manner that does not result in degradation of swale 
paintbrush habitat.
    This list is intended to be illustrative and not exhaustive; 
additional activities that will not be considered likely to result in 
violation of section 9 of the Act may be identified during coordination 
with the local field office, and in some instances (e.g., with new 
information), the Service may conclude that one or more activities 
identified here will be

[[Page 96614]]

considered likely to result in violation of section 9.
    At this time, we are unable to identify specific activities that 
will be considered likely to result in a violation of section 9 of the 
Act beyond what is already clear from the descriptions of the 
prohibitions in section 9(a)(2) of the Act and at 50 CFR 17.61. 
Questions regarding whether specific activities would constitute a 
violation of section 9 of the Act should be directed to the New Mexico 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

II. Critical Habitat

Background

    Section 4(a)(3) of the Act requires that, to the maximum extent 
prudent and determinable, we designate a species' critical habitat 
concurrently with listing the species. Critical habitat is defined in 
section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as an area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely by vagrant individuals).
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that each Federal action agency 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 designated critical habitat. The designation of 
critical habitat does not affect land ownership or establish a refuge, 
wilderness, reserve, preserve, or other conservation area. Such 
designation also does not allow the government or public to access 
private lands. Such designation does not require implementation of 
restoration, recovery, or enhancement measures by non-Federal 
landowners. Rather, designation requires that, where a landowner 
requests Federal agency funding or authorization for an action that may 
affect an area designated as critical habitat, the Federal agency 
consult with the Service under section 7(a)(2) of the Act. If the 
action may affect the listed species itself (such as for occupied 
critical habitat), the Federal action agency would have already been 
required to consult with the Service even absent the critical habitat 
designation because of the requirement to ensure that the action is not 
likely to jeopardize the continued existence of the species. Even if 
the Service were to conclude after consultation that the proposed 
activity is likely to 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 data available, those physical or biological features that 
are essential to the conservation of the species (such as space, food, 
cover, and protected habitat).
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species.
    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.
    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

[[Page 96615]]

for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species; and (3) the prohibitions found in section 9 of the Act. 
Federally funded or permitted projects affecting listed species outside 
their designated critical habitat areas may still result in jeopardy 
findings in some cases. These protections and conservation tools will 
continue to contribute to recovery of this species. Similarly, critical 
habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, HCPs, or other species 
conservation planning efforts if new information available at the time 
of these 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. On April 5, 2024, we published a final rule that revised our 
regulations at 50 CFR part 424 to further clarify when designation of 
critical habitat may not be prudent (89 FR 24300). Our regulations (50 
CFR 424.12(a)(1)) state that designation of critical habitat may not be 
prudent in circumstances such as, but not limited to, the following:
    (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;
    (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; or
    (iv) No areas meet the definition of critical habitat.
    In the proposed listing rule, we determined that designation of 
critical habitat for swale paintbrush would not be prudent (88 FR 37490 
at 37502-37503, June 8, 2023). We invited public comment and requested 
information on our rationale that designation of critical habitat was 
not prudent based on circumstance (i). Comments we received during the 
public comment period indicated some disagreement that collection is a 
threat to the species, which is described and addressed in further 
detail in the Public Comments section, above. After review and 
consideration of the comments we received, we now make a final 
determination that the designation of critical habitat for the swale 
paintbrush is not prudent, in accordance with 50 CFR 424.12(a)(1). Our 
not prudent finding for the swale paintbrush is based on the threat of 
collection--circumstance (i)--which is identical in the 2019 
regulations (under which the proposed rule published) and the 2024 
regulations (under which this final rule is being published); thus, 
there is no functional or operation difference in application or 
outcome. Analysis under both the 2019 and 2024 regulation provisions is 
identical.
    In our June 8, 2023, proposed rule, we noted that because of the 
small known extant range and population size of this species, its 
annual duration and reliance on frequent seedbank replenishment, and 
risks to its seedbank from stochastic events and other ongoing threats 
to the species, effects from illegal collection (removal of plants and 
damage to habitat) would be deleterious to the swale paintbrush (88 FR 
37490 at 37502-37503, June 8, 2023).
    Although no known illegal collection events of the swale paintbrush 
have been documented, other species within the genus Castilleja are 
horticulturally desirable. Seeds of many Castilleja species are readily 
available via online companies, and yellow-bracted species, 
aesthetically similar to the swale paintbrush, are marketed as rare. 
There is a history of illegal collection occurring for other species at 
or within the near vicinity of the Gray Ranch site. These collection 
efforts involved the Sonoran Desert toad (New Mexico Department of Game 
and Fish 2020, pp. 78-79), New Mexico ridge-nosed rattlesnake (Harris 
Jr. and Simmons 1975, p. 6; Malpai Borderlands Group 2008, p. 60), and 
Mexican hog-nosed snake (Medina 2021, pers. comm.). The swale 
paintbrush is easier to detect and collect than these mobile, 
camouflaged species. Illegal collection and/or vandalism events are 
difficult to document, especially in the case of rare plant species, 
but they are suspected as a possible cause for the declines of many 
rare plant species (Krigas et al. 2014, p. 86; Margulies et al. 2019, 
pp. 174, 178; Lavorgna et al. 2020, p. 28).
    Additionally, swale paintbrush locality data are not published 
within online databases due to the species' rarity and limited 
distribution (Gilbert and Pearson 2021, unpaginated; iNaturalist 2023, 
unpaginated; Natural Heritage New Mexico n.d., unpaginated). 
Designation of critical habitat requires the publication of maps and a 
narrative description of specific critical habitat areas in the Federal 
Register. The degree of detail necessary to properly designate critical 
habitat is considerably greater than the general descriptions of 
location provided in this rule to list the swale paintbrush as an 
endangered species. We find that the publication of maps and 
descriptions outlining the locations could further facilitate 
unauthorized collection and/or vandalism by providing currently 
unavailable precise location information.
    Furthermore, we assessed the risks associated with a critical 
habitat designation for the swale paintbrush, and some of them would be 
catastrophic. The swale paintbrush is an annual plant species, and 
Castilleja seed longevity is not documented at greater than 2 years in 
the wild; thus, frequent replenishment of the seedbank is essential to 
population persistence (Service 2023, p. 22). As few as 2 consecutive 
years of adverse environmental conditions or human-caused or natural 
adverse stochastic events could lead to population extirpation for this 
species (Service 2023, p. 30). Factors that thwart seedbank 
replenishment include growing season inundation, fire, or grazing/
trampling; vegetative competition; drought; and illegal collection 
(Service 2023, pp. 28-31, 34, 95). These factors can occur 
simultaneously or consecutively, and synergistic interactions between 
these threats are possible (Service 2023, p. 30). Given the small known 
extant range--approximately 11 hectares (28 acres)--and population size 
of the species, combined with risks to its seedbank from stochastic 
events and other ongoing threats to the species, the swale paintbrush 
is exceptionally vulnerable to adverse effects from illegal collection 
(including removal of swale paintbrush seeds from the wild) and/or 
vandalism. Such adverse effects include genetic effects (loss of 
genetic diversity, evolutionary potential, and adaptive capacity) and 
habitat effects (changes in habitat quality) in addition to demographic 
effects (reduced seed bank abundance and, therefore, reduced population 
abundance). The actual severity of impact from a collection event 
depends on how a collection is conducted as well as the population 
abundance and fecundity at the site in years preceding, during, and 
following the collection event. While the consequences of any given 
collection event are unpredictable, increased collection pressure--
combined with the

[[Page 96616]]

impacts of other, ongoing stressors--is likely to result in increased 
risk of population extirpation and, thus, species extinction in the 
wild.
    Overall, given the small known extant range and population size of 
this species, its annual duration and reliance on frequent seedbank 
replenishment, and risks to its seedbank from stochastic events and 
other ongoing threats to the species, effects from illegal collection 
(removal of plants and damage to habitat) would be deleterious to the 
swale paintbrush. Therefore, in accordance with 50 CFR 424.12(a)(1), we 
determine that designation of critical habitat is not prudent for the 
swale paintbrush.

Required Determinations

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, May 4, 1994), Executive Order 13175 
(Consultation and Coordination with Indian Tribal Governments), the 
President's memorandum of November 30, 2022 (Uniform Standards for 
Tribal Consultation; 87 FR 74479, December 5, 2022), and the Department 
of the Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with federally recognized 
Tribes and Alaska Native Corporations (ANCs) on a government-to-
government basis. In accordance with Secretary's 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 contacted all Tribal entities with documented cultural 
interests in Hidalgo County, New Mexico--the Hopi Tribe, the White 
Mountain Apache Tribe, the Mescalero Apache Tribe, and the Fort Sill 
Apache Tribe--to provide them notice of our status review; solicit 
information and invite their participation in the SSA process; and 
inform them of the publication of our June 8, 2023, proposed rule and 
its open public comment period. We did not receive any information from 
Tribal entities during the SSA process or during our June 8, 2023, 
proposed rule's public comment period. We will continue to coordinate 
with Tribal entities throughout the recovery process for the swale 
paintbrush.

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 New Mexico Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

Authors

    The primary authors of this rule are the staff members of the Fish 
and Wildlife Service's Species Assessment Team and the New Mexico 
Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Plants, 
Reporting and recordkeeping requirements, Transportation, Wildlife.

Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 
of the Code of Federal Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

    Authority:  16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, 
unless otherwise noted.


0
2. In Sec.  17.12, in paragraph (h), amend the List of Endangered and 
Threatened Plants by adding an entry for ``Castilleja ornata'' in 
alphabetical order under FLOWERING PLANTS to read as follows:


Sec.  17.12   Endangered and threatened plants.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                              Listing citations
         Scientific name                Common name          Where listed         Status        and applicable
                                                                                                    rules
----------------------------------------------------------------------------------------------------------------
                                                Flowering Plants
 
                                                  * * * * * * *
Castilleja ornata................  Swale paintbrush....  Wherever found......            E   89 FR [INSERT
                                                                                              FEDERAL REGISTER
                                                                                              PAGE WHERE THE
                                                                                              DOCUMENT BEGINS],
                                                                                              12/05/2024.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


Gary Frazer,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2024-28357 Filed 12-4-24; 8:45 am]
BILLING CODE 4333-15-P`