[Federal Register Volume 76, Number 90 (Tuesday, May 10, 2011)]
[Proposed Rules]
[Pages 27184-27215]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-10753]



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Vol. 76

Tuesday,

No. 90

May 10, 2011

Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for Lepidium papilliferum (Slickspot Peppergrass); Proposed 
Rule

  Federal Register / Vol. 76 , No. 90 / Tuesday, May 10, 2011 / 
Proposed Rules  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2010-0071; MO 92210-0-0009]
RIN 1018-AX16


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Lepidium papilliferum (Slickspot Peppergrass)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, propose to designate 
critical habitat for Lepidium papilliferum (slickspot peppergrass) 
under the Endangered Species Act of 1973, as amended. In total, we are 
proposing to designate 23,374 hectares (57,756 acres) as critical 
habitat for Lepidium papilliferum, in Ada, Elmore, Payette, and Owyhee 
Counties in Idaho.

DATES: To provide us with adequate time to consider your comments, 
comments must be received on or before July 11, 2011. Please note that 
if you are using the Federal eRulemaking Portal (see ADDRESSES section, 
below), the deadline for submitting an electronic comment is 11:59 p.m. 
Eastern Standard Time on this date. We must receive requests for public 
hearings, in writing, at the address shown in the FOR FURTHER 
INFORMATION CONTACT section by June 24, 2011.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. In 
the box that reads ``Enter Keyword or ID,'' enter the docket number for 
this proposed rule, which is FWS-R1-ES-2010-0071. Check the box that 
reads ``Open for Comment/Submission,'' and then click the Search 
button. You should see an icon that reads ``Submit a Comment.'' Please 
ensure that you have found the correct rulemaking before submitting 
your comment.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R1-ES-2010-0071; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Public Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: Brian Kelly, State Supervisor, U.S. 
Fish and Wildlife Service, Idaho Fish and Wildlife Office, 1387 S. 
Vinnell Way, Room 368, Boise, ID 83709; telephone 208-378-5243; 
facsimile 208-378-5262. If you use a telecommunications device for the 
deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-
877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We intend that any final action resulting from this proposal will 
be based on the best scientific and commercial data available and be as 
accurate and as effective as possible. Therefore, we request comments 
or information from other concerned government agencies, the scientific 
community, industry, or other interested parties concerning this 
proposed rule. We particularly seek comments concerning:
    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Endangered Species Act of 
1973, as amended (Act) (16 U.S.C. 1531 et seq.), including whether 
there are threats to Lepidium papilliferum from human activity, the 
degree to which threats from human activity can be expected to increase 
due to the designation, and whether that increase in threats outweighs 
the benefit of designation such that the designation of critical 
habitat may not be prudent.
    (2) Specific information on:
     The amount and distribution of Lepidium papilliferum 
habitat;
     What areas occupied at the time of listing and that 
contain features essential to the conservation of Lepidium papilliferum 
should be included in the designation and why;
     The habitat components (primary constituent elements) 
essential to the conservation of the species, such as specific soil 
characteristics, plant associations, or pollinators, and the quantity 
and spatial arrangement of these features on the landscape needed to 
provide for the conservation of the species;
     What areas not occupied at the time of listing are 
essential for the conservation of the species, if any, and why; and
     Special management considerations or protections that the 
features essential to the conservation of Lepidium papilliferum may 
require, including managing for the potential effects of climate 
change.
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (4) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation. We are particularly interested in any impacts on small 
entities, and the benefits of including or excluding areas that are 
subject to these impacts.
    (5) Whether the benefits of excluding any particular area from 
critical habitat outweigh the benefits of including that area in 
critical habitat under section 4(b)(2) of the Act, after considering 
both the potential impacts and benefits of the proposed critical 
habitat designation. Under section 4(b)(2) of the Act, we may exclude 
an area from critical habitat if we determine that the benefits of such 
exclusion outweigh the benefits of including that particular area as 
critical habitat, unless failure to designate that specific area as 
critical habitat will result in the extinction of the species. We are 
considering the possible exclusion of areas under private ownership, in 
particular, as we anticipate the benefits of exclusion may outweigh the 
benefits of inclusion in those areas. We therefore request specific 
information on:
     The benefits of including any specific areas in the final 
designation and supporting rationale,
     The benefits of excluding any specific areas from the 
final designation and supporting rationale, and
     Whether any specific exclusions may result in the 
extinction of the species and why (see Exclusions section below).
    (5) The use of Public Land Survey System quarter-quarter sections 
to delineate the proposed critical habitat designation; we used 
quarter-quarter sections in this proposed rule because they are the 
most-commonly-used minimum size and method for delineating land 
ownership boundaries within the range of Lepidium papilliferum.
    (6) Information on the projected and reasonably likely impacts of 
climate change on Lepidium papilliferum and on the critical habitat 
areas we are proposing.
    (7) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comment.
    Our final determination concerning critical habitat for Lepidium 
papilliferum will take into consideration all written comments we 
receive during the comment period,

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including comments from peer reviewers, comments we receive during any 
public hearing should one be requested, and any additional information 
we receive during the 60-day comment period. All comments will be 
included in the public record for this rulemaking. On the basis of peer 
reviewer and public comments, we may, during the development of our 
final determination, find that areas within the proposed designation do 
not meet the definition of critical habitat, that some modifications to 
the described boundaries are appropriate, or that areas may or may not 
be appropriate for exclusion under section 4(b)(2) of the Act.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We will 
post your entire comment--including any personal identifying 
information--on http://www.regulations.gov. If you provide personal 
identifying information, such as your name, street address, phone 
number, or e-mail address, you may request at the top of your document 
that we withhold this information from public review. However, we 
cannot guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Idaho Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).

Background

    Lepidium papilliferum was listed as a threatened species under the 
Act on October 8, 2009 (74 FR 52014). In this proposed rule, we intend 
to discuss only those topics directly relevant to the designation of 
critical habitat for this species. For more detailed information on the 
genetics and biology of L. papilliferum, please refer to the final 
listing rule published in the Federal Register on October 8, 2009 (74 
FR 52014). Detailed information on L. papilliferum directly relevant to 
designation of critical habitat is discussed under the Primary 
Constituent Elements section below.

Species Information

    Lepidium papilliferum is a small, flowering plant in the mustard 
family (Brassicaceae). The plant grows in unique microsite habitats 
known as slickspots (described below, under ``Ecology and Habitat''), 
which are found within the semiarid sagebrush-steppe ecosystem of 
southwestern Idaho. The species is endemic to this region, known only 
from the Snake River Plain and its adjacent northern foothills (an area 
approximately 145 by 40 kilometers (km) (90 by 25 miles (mi)), or 5,800 
square kilometers (km\2\) (2,250 square miles (mi\2\))), with a 
smaller, disjunct population on the Owyhee Plateau (an area of 
approximately 18 by 19 km (11 by 12 mi), or 342 km\2\ (132 mi\2\)). 
Rangewide, L. papilliferum is associated with slickspots that cover a 
relatively small cumulative area within the larger sagebrush-steppe 
ecosystem. Additionally, although L. papilliferum is found almost 
exclusively in slickspots, very few existing slickspots are occupied by 
L. papilliferum.
    Lepidium papilliferum is herbaceous and relatively low-growing, 
averaging 5 to 20 centimeters (cm) (2 to 8 inches (in)) high, but 
occasionally reaching up to 40 cm (16 in) in height. It is an 
intricately branched, tap-rooted plant, with numerous, small, white, 
four-petalled flowers. Fruits (siliques) are round in outline, 
flattened, and two-seeded (Moseley 1994, pp. 3, 4; Holmgren et al. 
2005, p. 260). The species is monocarpic (it flowers once and then 
dies) and displays two different life history strategies--an annual 
form and a biennial form. The annual form reproduces by flowering and 
setting seed in its first year, and dies within one growing season. The 
biennial life form initiates growth in the first year as a vegetative 
rosette, but does not flower and produce seed until the second growing 
season. The proportion of annuals versus biennials in a population can 
vary greatly (Meyer et al. 2005, p. 15), but in general annuals appear 
to outnumber biennials (Moseley 1994, p. 12).
    Like many short-lived plants growing in arid environments, above-
ground numbers of Lepidium papilliferum individuals can fluctuate 
widely from one year to the next, depending on seasonal precipitation 
patterns (Mancuso and Moseley 1998, p. 1; Meyer et al. 2005, pp. 4, 12, 
15; Palazzo et al. 2005, p. 9; Menke and Kaye 2006a, p. 8; Menke and 
Kaye 2006b, pp. 10, 11; Sullivan and Nations 2009, p. 44). Mancuso and 
Moseley (1998, p. 1) note that sites with thousands of above-ground 
plants one year may have none the next, and vice versa. Above-ground 
plants represent only a portion of the population; the seed bank (a 
reserve of dormant seeds, generally found in the soil) contributes the 
other portion, and in many years constitutes the majority of the 
population (Mancuso and Moseley 1998, p. 1).

Ecology and Habitat

    Lepidium papilliferum gets its common name, slickspot peppergrass, 
from its almost exclusive association with slickspot microsite 
habitats. ``Slickspots'' are visually distinct openings in the 
sagebrush-steppe community characterized by soils with high sodium 
content and distinct clay layers; they tend to be highly reflective and 
light in color, making them easy to detect on the landscape (Fisher et 
al. 1996, p. 3). Within the range of L. papilliferum, slickspots cover 
a relatively small cumulative area within the larger sagebrush-steppe 
ecosystem. For example, an intense field inventory within the U.S. Air 
Force Juniper Butte Range in 2002 found that of the 4,480 ha (11,070 
ac) surveyed, approximately 1 percent (44.1 ha) (109 ac) consisted of 
slickspot microsites; of those slickspots, only 4 percent were occupied 
by individuals of L. papilliferum. It is not known how long slickspots 
take to form, but it is hypothesized to take several thousands of years 
(Nettleton and Peterson 1983, p. 193; Seronko 2006, in litt.). Climate 
conditions that allowed for the formation of slickspots in southwestern 
Idaho are thought to have occurred during a wetter Pleistocene period. 
As slickspots appear to have formed during the Pleistocene and new 
slickspots are not being formed, the loss of a slickspot is considered 
a permanent loss. Some slickspots subjected to only light disturbance 
in the past may apparently be capable of re-forming (Seronko 2006, in 
litt.). Disturbances that alter the physical properties of the soil 
layers, however, such as deep disturbance and the addition of organic 
matter, may lead to destruction and permanent loss of slickspots.
    Several analyses have shown a positive association between above-
ground abundance of Lepidium papilliferum and spring precipitation in 
the same year. More recently, Sullivan and Nations (2009, pp. 30, 41) 
analyzed 18 years of data and found that both plant density and plant 
abundance were positively related to mean monthly precipitation in late 
winter and spring (January through May). This correlation of abundance 
with spring rainfall is important, as it at least partially explains 
annual fluctuations in L. papilliferum population numbers. In contrast, 
precipitation in the fall or early winter may have a negative effect on 
L. papilliferum abundance the following spring (Meyer et al. 2005, p. 
15; Sullivan and Nations 2009, p. 39). It has been suggested this 
negative relationship may be the result of prolonged flooding of the 
slickspot microsites, causing

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subsequent mortality of overwintering biennial rosettes (Meyer et al. 
2005, pp. 15-16).

Threats

    The primary threat factors that affect the habitat and survival of 
Lepidium papilliferum in southwest Idaho include the invasion of 
nonnative annual grasses, such as Bromus tectorum (cheatgrass), and 
increased fire frequency. Bromus tectorum can impact L. papilliferum 
directly through competition, but it also acts indirectly on the 
species by providing continuous fine fuels that contribute to the 
documented increased frequency and extent of wildfires in southwest 
Idaho. Frequent wildfires ultimately result in the conversion of the 
sagebrush-steppe habitat to nonnative annual grasslands, with 
consequent losses of native species diversity and natural ecological 
function. This creates a positive feedback loop between nonnative 
annual grasses and fire, which makes it difficult to separate out the 
effects that each of these threats independently have on L. 
papilliferum.
    Development also poses a threat to Lepidium papilliferum, both 
directly through the destruction of populations and loss of slickspot 
microsites, as well as indirectly through habitat fragmentation. The 
loss of slickspots is a permanent loss of habitat for L. papilliferum, 
because the species is specifically adapted to occupy these unique 
microsite habitats that developed in the Pleistocene era, and new 
slickspots are no longer being formed (Nettleton and Peterson 1983, pp. 
166, 191, 206).
    In addition to wildfire, nonnative plants, and development, 
livestock use poses a secondary threat to Lepidium papilliferum, 
primarily through mechanical damage to individual plants and slickspot 
habitats. Livestock trampling can disrupt the soil layers of 
slickspots, altering slickspot function (Seronko 2004, in litt.; Colket 
2005, p. 34; Meyer et al. 2005, pp. 21-22). Trampling when slickspots 
are dry can lead to mechanical damage to the slickspot soil crust, 
potentially resulting in the invasion of nonnative plants and altering 
the hydrologic function of slickspots. In water-saturated slickspot 
soils, trampling by livestock can break through the restrictive clay 
layer; this is referred to as penetrating trampling (State of Idaho et 
al. 2006, p. 9). Trampling that alters the soil structure and the 
functionality of slickspots (Rengasamy et al. 1984, p. 63; Seronko 
2004, in litt.) likely impacts the suitability of these microsites for 
L. papilliferum. Trampling can also negatively affect the seed bank by 
pushing seeds too deeply into the soil for subsequent successful 
germination and emergence. The current livestock management conditions 
and associated conservation measures address this threat such that it 
does not appear to pose a significant risk to the species at this time, 
but more monitoring information is needed to determine the significance 
of this threat to L. papilliferum rangewide.
    Lepidium papilliferum is primarily an outcrossing species, and 
depends upon a diversity of insect pollinators for more successful 
fruit production and to maintain genetic variability by genetic 
exchange with distant populations. Some of the primary threats 
identified may have indirect effects on L. papilliferum by negatively 
impacting the native insect populations that the species depends on for 
pollination and genetic exchange. Changes in native habitat caused by 
residential or agricultural development, or conversion of the native 
plant community to nonnative species, may impact insect pollinator 
populations by removing specific food sources or habitats required for 
breeding or nesting. In addition, habitat isolation and fragmentation 
resulting from activities such as development or road construction may 
result in decreased pollination of L. papilliferum from distant 
sources, possibly resulting in decreased reproductive potential (e.g., 
lower seed set) and reduced genetic diversity.
    The Owyhee harvester ant was recently identified as a potentially-
important seed predator of Lepidium papilliferum. A native species, the 
harvester ants appear to favor areas dominated by nonnative annual 
grasses, such as Bromus tectorum, and in the wake of disturbance 
factors such as wildfire, these ants are beginning to colonize areas 
that were historically unsuitable for nesting. This expansion is 
increasingly bringing them into contact with L. papilliferum, which 
experiences high rates of seed predation by the ants with potential 
negative consequences for the seed bank and recruitment. Our current 
understanding of how pervasive harvester ant colonies have become 
within the range of L. papilliferum, and their overall significance on 
the long-term viability of the species, is limited due to the short-
term nature of the research so far.
    For a detailed analysis of the threats to Lepidium papilliferum, 
please refer to the final listing rule for the species published 
October 8, 2009 (74 FR 52014).

Previous Federal Actions

    On July 15, 2002, we proposed to list Lepidium papilliferum as 
endangered (67 FR 46441). On January 12, 2007, we published a document 
in the Federal Register withdrawing the proposed rule (72 FR 1622), 
based on a determination at that time that listing was not warranted 
(for a description of Federal actions concerning L. papilliferum 
between the 2002 proposal to list and the 2007 withdrawal, please refer 
to the 2007 withdrawal document). On April 6, 2007, Western Watersheds 
Project filed a lawsuit challenging our decision to withdraw the 
proposed rule to list L. papilliferum. On June 4, 2008, the U.S. 
District Court for the District of Idaho (Court) reversed the decision 
to withdraw the proposed rule, with directions that the case be 
remanded to the Service for further consideration consistent with the 
Court's opinion (Western Watersheds Project v. Kempthorne, Case No. CV 
07-161-E-MHW (D. Idaho)).
    After issuance of the Court's remand order, we published a public 
notification of the reinstatement of our July 15, 2002, proposed rule 
to list Lepidium papilliferum as endangered and announced the reopening 
of a public comment period on September 19, 2008 (73 FR 54345). To 
ensure that our review of the species' status was complete, we 
announced another reopening of the comment period on March 17, 2009, 
for a period of 30 days (74 FR 11342). On October 8, 2009, we published 
a final rule (74 FR 52014) listing L. papilliferum as a threatened 
species throughout its range.

Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (i) 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.
    (I) Essential to the conservation of the species, and
    (II) Which may require special management considerations or 
protection; and
    (ii) 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.
    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

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endangered or threatened species to the point at which the measures 
provided under 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 prohibition against Federal agencies carrying out, funding, 
or authorizing the destruction or adverse modification of critical 
habitat. Section 7(a)(2) requires consultation on Federal actions that 
may affect critical habitat. The designation of critical habitat does 
not affect land ownership or establish a refuge, wilderness, reserve, 
preserve, or other conservation area. Such designation does not allow 
the government or public to access private lands. Such designation does 
not require implementation of restoration, recovery, or enhancement 
measures by non-Federal landowners. Where a landowner seeks or requests 
Federal agency funding or authorization for an action that may affect a 
listed species or critical habitat, the consultation requirements of 
section 7(a)(2) would apply, but even in the event of a destruction or 
adverse modification finding, the Federal action agency and the 
applicant's obligation is not to restore or recover the species, but to 
implement reasonable and prudent alternatives to avoid destruction or 
adverse modification of critical habitat.
    For inclusion in a critical habitat designation, the habitat within 
the geographical area occupied by the species at the time it was listed 
must contain the primary constituent elements (PCEs) essential to the 
conservation of the species, and be included only if those features may 
require special management considerations or protection. Critical 
habitat designations identify, to the extent known using the best 
scientific data available, habitat areas that provide essential life-
cycle needs of the species (areas on which are found the PCEs laid out 
in the appropriate quantity and spatial arrangement for the 
conservation of the species). Under the Act and regulations at 50 CFR 
424.12, we can designate critical habitat in areas outside the 
geographical area occupied by the species at the time it is listed only 
when we determine that those areas are essential for the conservation 
of the species and that a designation limited to those areas occupied 
at the time of listing would be inadequate to ensure 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; 114 Stat. 
2763A-153-54)), and our associated Information Quality Guidelines 
(available online at http://www.fws.gov/informationquality/topics/IQAguidelines-final82307.pdf), 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 developed during the listing process for the species. 
Additional information sources may include the recovery plan for the 
species (if available), articles in peer-reviewed journals, 
conservation plans developed by States and counties, scientific status 
surveys and studies, biological assessments, or other unpublished 
materials, including expert opinion or personal knowledge.
    Habitat is often dynamic, and species may move from one area to 
another over time. In particular, we recognize that climate change may 
cause changes in areas of occupied habitat. In the Pacific Northwest, 
regionally averaged temperatures have risen 0.8 degrees Celsius (C) 
(1.5 degrees Fahrenheit (F)) over the last century (as much as 2 
degrees C (4 degrees F) in some areas), and are projected to increase 
by another 1.5 to 5.5 degrees C (3 to 10 degrees F) over the next 100 
years (Mote et al. 2003, p. 54; Karl et al. 2009, p. 135). Arid regions 
such as the Great Basin where Lepidium papilliferum occurs are likely 
to become hotter and drier, fire frequency is expected to accelerate, 
and fires may become larger and more severe (Brown et al. 2004, pp. 
382-383; Neilson et al. 2005, p. 150; Chambers and Pellant 2008, p. 31; 
Karl et al. 2009, p. 83). Under projected future temperature 
conditions, the cover of sagebrush in the Great Basin region is 
anticipated to be dramatically reduced (Neilson et al. 2005, p. 154). 
Warmer temperatures and greater concentrations of atmospheric carbon 
dioxide create conditions favorable to the invasive annual grass Bromus 
tectorum, and perpetuate the positive feedback cycle between annual 
grasses and fire frequency that poses a significant threat to the 
sagebrush matrix habitat of L. papilliferum (Chambers and Pellant 2008, 
p. 32; Karl et al. 2009, p. 83).
    The direct, long-term impact from climate change to the habitat of 
Lepidium papilliferum is yet to be determined. Under the current 
climate-change projections discussed above, we anticipate that future 
climatic conditions will favor further invasion by Bromus tectorum, 
that fire frequency will continue to increase, and that the extent and 
severity of fires may increase as well, further changing the species 
composition of southwest Idaho's sagebrush-steppe habitat.
    Although the Intergovernmental Panel on Climate Change (IPCC) 
projects that the changes to the global climate system in the 21st 
century will likely be greater than those observed in the 20th century 
(IPCC 2007, p. 45), there are, nonetheless, limitations to our ability 
to estimate the scope or magnitude of the effects. Therefore, 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 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 required for recovery of 
the species.
    Areas that are important to the conservation of the species, but 
are outside the critical habitat designation, will continue to be 
subject to conservation actions we implement under section 7(a)(1) of 
the Act. Those areas outside the critical habitat designation that 
support populations are also subject to the regulatory protections 
afforded by the section 7(a)(2) jeopardy standard, as determined on the 
basis of the best available scientific information at the time of the 
agency action. Federally funded or permitted projects affecting listed 
species outside their designated critical habitat areas may still 
result in jeopardy findings in some cases. Similarly, critical habitat 
designations made on the basis of the best available information at the 
time of designation will not control the direction and substance of 
future recovery plans, habitat conservation plans (HCPs), or other 
species conservation planning efforts if new information available at 
the time of

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these planning efforts calls for a different outcome.

Methods

    As required by section 4(b)(2) of the Act, in developing this 
proposed rule we used the best scientific data available in determining 
those specific areas within the geographical area occupied at the time 
of listing that contain the features essential to the conservation of 
Lepidium papilliferum and that may require special management 
considerations or protection.
    We reviewed available information that pertains to the habitat 
requirements of this species. These sources of information included, 
but were not limited to, data used to complete the final rule to list 
the species (74 FR 52014; October 8, 2009); information from biological 
surveys, peer reviewed articles, various agency reports and databases 
for or by the Idaho Natural Heritage Program (INHP), U.S. Bureau of 
Land Management (BLM), Idaho Army National Guard, State of Idaho, U.S. 
Air Force, and nongovernmental cooperators; discussions with species 
experts; and data and information presented in academic research 
theses. Additionally, we utilized regional Geographic Information 
System (GIS) data (such as species occurrence data, land use, 
topography, aerial imagery, soil data, and land ownership maps) for 
area calculations and mapping.
    The long-term probability of the survival and recovery of Lepidium 
papilliferum is dependent upon protecting existing population sites of 
sufficient quality and viability to contribute meaningfully to the 
conservation of the species; maintaining ecological function within 
these sites, including preserving the integrity of the slickspot soils 
and connectivity within and between populations in close geographic 
proximity to one another (to facilitate pollinator activity); and 
keeping these areas free of major habitat-disturbing activities, 
including the establishment of invasive, nonnative plant species and 
frequent wildfire. Because slickspots cover a relatively small 
cumulative area within the larger sagebrush-steppe matrix, we did not 
restrict the designation to individual occupied slickspots, but 
included some adjacent sagebrush-steppe habitat to provide for 
ecosystem function. This contiguous habitat provides the requisite PCEs 
for L. papilliferum, including native flowering plants and habitat to 
support pollinators, and additionally provides the essential feature of 
habitat free from disturbances, such as invasive species, development, 
and recreation. The areas we are proposing to designate as critical 
habitat were all occupied at the time of listing, and provide physical 
and biological features essential for the conservation of L. 
papilliferum that may require special management considerations or 
protection. We do not propose to designate areas outside of the 
geographical area presently occupied by the species.
    Our first step in delineating proposed critical habitat units was 
to identify areas that provide for the conservation of Lepidium 
papilliferum within the three physiographic regions where the species 
was known to occur at the time of listing (74 FR 52020; October 8, 
2009). These areas include the Boise Foothills, the Snake River Plain 
and its adjacent northern foothills, and a single disjunct population 
on the Owyhee Plateau. We are proposing to designate critical habitat 
in all three physiographic regions to conserve the genetic variability 
represented by L. papilliferum across its range and because these areas 
are representative of the entire known historical geographic 
distribution of the species (50 CFR 424.12(b)(5)).
    We then identified areas within these geographic units that were 
occupied by Lepidium papilliferum at the time of listing utilizing the 
element occurrence (EO) data provided to us by the Idaho Natural 
Heritage Program (INHP), and information used in the final rule to list 
Lepidium papilliferum published in the Federal Register on October 8, 
2009 (74 FR 52014). Element occurrences of L. papilliferum are defined 
by grouping occupied slickspots that occur within 1 km (0.6 mi) of each 
other; all occupied slickspots within a 1-km (0.6-mi) distance of 
another occupied slickspot are aggregated into a single EO. The 
definition of a single EO is based on the distance over which 
individuals of L. papilliferum are believed to be capable of genetic 
exchange through insect-mediated pollination (Colket and Robertson 
2006, pp. 1-2). INHP assigned to each EO an identifying number and a 
qualitative rank based on measures of population size and habitat 
quality. Using the EO area ranking system developed by the INHP, we 
evaluated specific areas to propose for designation as critical habitat 
(see Criteria Used to Identify Critical Habitat, below). The ranking 
given to each area takes into account those features that are essential 
to L. papilliferum, including the presence of slickspots, habitat 
conditions within and surrounding the area, and the conditions of the 
surrounding landscape features necessary to support pollination and 
other life-history requirements. Each EO for L. papilliferum is given a 
ranking of A, B, C, D, E, F, H, or X by the INHP; higher rankings (the 
highest rank would be an ``A'') indicate sites with greater habitat 
quality and larger population sizes, which we infer are more likely to 
persist and sustain the species. As of February 2009, there were no A-
ranked EOs of L. papilliferum. Rankings of B, C, and D indicate a 
decreasing continuum of detectable plants, native plant community, 
habitat condition, and overall landscape context within 1 km (0.6 mi) 
of occupied slickspots, with a B ranking signifying a greater number of 
plants and better habitat conditions and a D ranking signifying few 
plants and poor conditions. Areas ranked E are those records with 
confirmed L. papilliferum presence but for which no additional habitat 
information is available. Areas ranked H indicate historical 
occurrences, X rankings connote extirpated occurrences, and F rankings 
indicate areas where no L. papilliferum individuals were found when 
last visited by a qualified surveyor.
    Critical habitat boundaries were initially determined based on the 
minimum delineation of EO areas. Using GIS, we included an area of 
approximately 250 meter (m) (820 feet (ft)) around each EO to provide 
the PCEs for the species, including habitat of sufficient quantity and 
quality to support pollinators of Lepidium papilliferum in occupied 
slickspots. This areal extent was chosen to provide the minimum area 
needed to sustain an active pollinator community for L. papilliferum. 
This distance is not meant to capture all habitat that is potentially 
used by pollinators, but it is meant to capture a sufficient area to 
allow for pollinators to nest, feed, and reproduce in habitat that is 
adjacent and connected to L. papilliferum EOs. Although the species is 
served by a variety of pollinators, we delineated this pollinator-use 
area based on one of L. papilliferum's important pollinators with a 
relatively limited flight distance, the solitary bee, assuming that 
potential pollinators with long-range flight capabilities would be 
capable of using this habitat as well. Research suggests that solitary 
bees have fairly small foraging distances (Steffan-Dewenter et al. 
2002, pp. 1427-1429; Gathmann and Tscharntke 2002, p. 762); a study by 
Gathmann and Tscharntke suggested a maximum foraging range between 150 
and 600 m (495 and 1,970 ft). Based on this data, we chose 250 m (820 
ft) as a reasonable mid-range estimate of the distance needed to 
provide sufficient

[[Page 27189]]

habitat for the pollinator community. As noted, many other insects also 
contribute to the pollination of L. papilliferum, and some of these 
insects may travel greater distances than solitary bees; however, these 
pollinators may also find habitat within 250 m (820 ft) of L. 
papilliferum EOs. We did not delineate a pollinator use area larger 
than 250 m (820 ft) around L. papilliferum EOs, because that could 
include habitats that may not directly contribute to the survival or 
recovery of the species. In addition to supporting the pollinator 
community, this area surrounding EOs of L. papilliferum provides the 
essential feature of habitat free from disturbance, such as development 
and recreation, for the species.
    Using GIS, we intersected the 250-m (820-ft) buffered EOs with a 
quarter-quarter section shapefile based on the Public Land Survey 
System. The Public Land Survey System is a rectangular survey system 
commonly used in the western United States that divides the land into 
6-mile square townships (equivalent to 1,554 ha), which are then 
further subdivided into 1-mile square sections (259 ha). These sections 
may be surveyed into smaller squares by repeated halving and 
quartering; a quarter section is 160 ac (65 ha), and the smallest unit 
normally utilized is a ``quarter-quarter section,'' equal in size to 40 
ac (16 ha) (about \1/16\ of a square mile, or 400 m across). Quarter-
quarter sections that contained delineated EOs and surrounding buffers 
were initially identified as proposed critical habitat. We chose this 
strategy because, in our judgment, this scale of analysis is the 
appropriate scale for defining the critical habitat boundaries of this 
particular species. We based our determination to use this scale of 
analysis on the following reasons: (1) Quarter-quarter sections are the 
most-commonly-used minimum size and method for delineating land 
ownership boundaries within the range of Lepidium papilliferum; (2) the 
Public Land Survey System is a commonly-used method in Idaho and the 
sections are easily identified on standard maps, which will assist the 
public and land management agencies in easily identifying proposed 
critical habitat areas; (3) quarter-quarter section boundaries are 
commonly used for partitioning lands for management purposes such as 
livestock allotment boundaries; and (4) quarter-quarter section 
descriptions minimize the number of coordinates necessary to define the 
shapes of the critical habitat units, and avoid a false sense of 
precision that might be inferred from the use of other mapping tools; 
we would not consider mapping on a finer scale to represent reliable 
data with regard to location information.

Primary Constituent Elements (PCEs)

    In accordance with subsections 3(5)(A)(i) and 4(b)(1)(A) of the Act 
and our implementing regulations at 50 CFR 424.12, in determining those 
areas within the geographical area occupied by the species at the time 
of listing to propose as critical habitat, we consider the physical or 
biological features essential to the conservation of the species that 
may require special management considerations or protection. These may 
include, but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; germination, or seed dispersal; and generally
    (5) Habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of a species.
    We derived the specific PCEs essential to the conservation of 
Lepidium papilliferum based on the known biological needs of the 
species. We consider the physical or biological features essential to 
the conservation of L. papilliferum to be those PCEs laid out in the 
appropriate quantity and spatial arrangement to provide for the 
conservation of the species. All areas proposed as critical habitat for 
L. papilliferum are currently occupied, were occupied at the time of 
listing, and are within the species' historical geographic range.
    With rare exception, Lepidium papilliferum is known only to occur 
in slickspot habitat microsites scattered within the greater semiarid 
sagebrush-steppe ecosystem of southwestern Idaho. The restricted 
distribution of L. papilliferum is likely due to its adaptation to the 
specific conditions within these slickspot habitats. Slickspots are 
distinguished from the surrounding sagebrush habitat as having the 
following characteristics: microsites where water pools when rain falls 
(Fisher et al. 1996, pp. 2, 4); sparse native vegetation; distinct soil 
layers with a columnar or prismatic structure, higher alkalinity and 
clay content, and natric (sodic, high sodium) properties (Fisher et al. 
1996, pp. 15-16; Meyer and Allen 2005, pp. 3-5, 8; Palazzo et al. 2008, 
p. 378); and reduced levels of organic matter and nutrients due to 
lower biomass production (Meyer and Quinney 1993, pp. 3, 6; Fisher et 
al. 1996, p. 4). Although the low permeability of slickspots appears to 
help hold moisture (Moseley 1994, p. 8), once the thin crust dries out, 
the survival of L. papilliferum seedlings depends on the ability of the 
plant to extend the taproot into the argillic horizon (soil layer with 
high clay content) to extract moisture from the deeper natric zone 
(Fisher et al. 1996, p. 13).
    Ecologically functional slickspots have the following three primary 
layers: the surface silt layer, the middle restrictive layer, and an 
underlying moist clay layer. Although slickspots can appear homogeneous 
on the surface, the actual depth of the silt and restrictive layer can 
vary throughout the slickspot (Meyer and Allen 2005, Tables 9, 10, and 
11). The top two layers (surface silt and restrictive) of slickspots 
are normally very thin; the surface silt layer varies in thickness from 
a few mm to 3 cm (0.1 to 1.2 in) in slickspots known to support 
Lepidium papilliferum, and the restrictive layer varies in thickness 
from 1 to 3 cm (0.4 to 1.2 in) (Meyer and Allen 2005, p. 3). Fisher et 
al. (1995, p. 4) describe the smooth surface layer of slickspots as 
crustlike, with prominent vesicular pores. Below the surface layer, the 
soil clay content increases abruptly and creates a strongly-structured, 
finely-textured boundary (horizon) formed by the concentration of 
silicate clay materials, known as an argillic horizon. Slickspot soil 
profiles are distinctive and distinguished from the surrounding soil 
matrix by very thin surface layers that form prominently vesicular 
crusts, natric-like argillic horizons that occur just below the soil 
surface, and by increasingly saline and sodic conditions with depth 
(Fisher et al. 1995, pp. 11, 16). Disturbances that alter the physical 
properties of slickspot soil layers, such as deep disturbance and the 
addition of organic matter, may lead to destruction and permanent loss 
of slickspots. Slickspot soils are especially susceptible to mechanical 
disturbances when wet (Rengasmy et al. 1984, p. 63; Seronko 2004, in 
litt.). Such disturbances disrupt the soil layers important to L. 
papilliferum seed germination and seedling growth, and alter 
hydrological function.
    The biological soil crust, also known as a microbiotic crust or 
cryptogamic crust, is another component of quality habitat for Lepidium 
papilliferum. Such crusts are commonly found in semiarid

[[Page 27190]]

and arid ecosystems, and are formed by living organisms, primarily 
bryophytes, lichens, algae, and cyanobacteria, that bind together 
surface soil particles (Moseley 1994, p. 9; Johnston 1997, p. 4). 
Microbiotic crusts play an important role in stabilizing the soil and 
preventing erosion, increasing the availability of nitrogen and other 
nutrients in the soil, and regulating water infiltration and 
evaporation levels (Johnston 1997, pp. 8-10). In addition, an intact 
crust appears to aid in preventing the establishment of invasive plants 
(Brooks and Pyke 2001, p. 4, and references therein; see also Serpe et 
al. 2006, pp. 174, 176). These crusts are sensitive to disturbances 
that disrupt crust integrity, such as compression due to livestock 
trampling or off-road vehicle (ORV) use, and are also vulnerable to 
damage by fire. Recovery from disturbance is possible but occurs very 
slowly (Johnston 1997, pp. 10-11).
    The native, semiarid sagebrush-steppe habitat of southwestern Idaho 
where Lepidium papilliferum is found can be divided into two plant 
associations, each dominated by the shrub Artemisia tridentata ssp. 
wyomingensis (Wyoming big sagebrush): (1) A. tridentata ssp. 
wyomingensis-Achnatherum thurberianum (formerly Stipa thurberiana) 
(Thurber's needlegrass); and (2) A. tridentata ssp. wyomingensis-
Agropyron spicatum (bluebunch wheatgrass) habitat types. The perennial 
bunchgrasses Poa secunda (Sandberg's bluegrass) and Sitanion hysrix 
(bottlebrush squirreltail) are commonly found in the understory of 
these habitats, and the species Artemisia tridentata ssp. tridentata 
(basin big sagebrush), Chrysothamnus nauseosus (grey rabbitbrush), 
Chrysothamnus viridiflorus (green rabbitbrush), Eriogonum strictum 
(strict buckwheat), Purshia tridentata (bitterbrush), and Tetradymium 
glabrata (little-leafed horsebrush) form a lesser component of the 
shrub community. Under relatively undisturbed conditions, the 
understory is populated by a diversity of perennial bunchgrasses and 
forbs, including species such as Achnatherum (formerly Oryzopsis) 
hymenoides (Indian ricegrass), Achillea millefolium (common yarrow), 
Phacelia heterophylla (varileaf phacelia), Astragalus purshii (Pursh's 
milkvetch), Phlox longifolia (longleaf phlox), and Aristida purpurea 
var. longiseta (purple threeawn).
    Lepidium papilliferum is primarily an outcrossing species requiring 
pollen from separate plants for more successful fruit production; it 
exhibits low seed set in the absence of insect pollinators (Robertson 
2003, p. 5; Robertson and Klemash 2003, p. 339; Robertson and Ulappa 
2004, p. 1707; Billinge and Robertson 2008, pp. 1005-1006). Lepidium 
papilliferum is capable of self-pollinating, however, with a selfing 
rate (rate of self-pollination) of 12 to 18 percent (Billinge 2006, p. 
40; Robertson et al. 2006a, p. 40).
    Known Lepidium papilliferum insect pollinators include several 
families of bees (Hymenoptera), including Apidae, Halictidae, 
Sphecidae, and Vespidae; beetles (Coleoptera), including Dermestidae, 
Meloidae, and Melyridae; flies (Diptera), including Bombyliidae, 
Syrphidae, and Tachinidae; and others (Robertson and Klemash 2003, p. 
336; Robertson et al. 2006b, p. 6). Seed set does not appear to be 
limited by the abundance of pollinators (Robertson et al. 2004, p. 14). 
However, studies have shown a strong positive correlation between 
insect diversity and the number of L. papilliferum flowering at a site 
(Robertson and Hannon 2003, p. 8). Measurement of fruit set per visit 
revealed considerable variability in the effectiveness of pollination 
by different types of insects. Since L. papilliferum has a wide array 
of pollinators, general pollinator management practices for 
conservation of pollinators should be practiced at sites designated as 
critical habitat. These practices include ``a diversity of native 
plants whose blooming times overlap to provide flowers for foraging 
throughout the seasons; nesting and egg-laying sites, with appropriate 
nesting materials; sheltered, undisturbed places for hibernation and 
overwintering; and a landscape free of poisonous chemicals'' (Shepherd 
et al. 2003, pp. 49-50). An intact native sagebrush community, as 
opposed to a monoculture of nonnative annual grasslands such as Bromus 
tectorum, is more likely to support a wider array of pollinators. Many 
pollinators depend on native plants and may be unable to access 
resources from introduced species; many bees, for example, not only 
require large numbers of flowers to provide nectar and pollen, but also 
need a variety of flowering plants to sustain them throughout the 
growing season (Kearns and Inouye 1997, p. 298).
    To ensure that sufficient habitat and a diversity of native 
flowering plants are available to support the pollinator community 
required for the viability of Lepidium papilliferum populations, we 
determined that each EO should be surrounded by a minimum pollinator-
use area extending 250 m (820 ft) from the periphery. We chose this 
extent as a reasonable estimate of the area needed to sustain an active 
pollinator community for L. papilliferum (see Methods, above). The 
areas proposed as critical habitat will ensure maintenance and 
continuity of foraging habitats for insect pollinators adjacent to 
occupied slickspots, which helps to increase seed viability and 
production and is essential for maintaining genetic diversity in the 
species over the long term. Additionally, the provision of sufficient 
native sagebrush-steppe habitat protects L. papilliferum from wildfire, 
nonnative plant invasions, and colonization by harvester ants, and it 
helps to maintain local ecosystem characteristics within the larger 
landscape, which are crucial for protecting the species and its seed 
bank. The seed bank is an essential feature of L. papilliferum's 
biology because it provides the species with resilience in the face of 
stochastic impacts and variation in environmental conditions.
    All areas designated as critical habitat for Lepidium papilliferum 
were occupied at the time of listing, are within the species' 
historical geographic range, and provide sufficient PCEs to support at 
least one life-history function. Based on the above needs and our 
current knowledge of the life history, biology, and ecology of the 
species and the habitat requirements for sustaining the essential life 
history functions of the species, we have determined that Lepidium 
papilliferum's PCEs include:
    (1) Ecologically-functional microsites or ``slickspots'' that are 
characterized by:
    (a) A high sodium and clay content, and a three-layer soil 
horizonation sequence, which allows for successful seed germination, 
seedling growth, and maintenance of the seed bank. The surface horizon 
consists of a thin, silty, vesicular, pored (small cavity) layer that 
forms a physical crust (the silt layer). The subsoil horizon is a 
restrictive clay layer with an abruptic (referring to an abrupt change 
in texture) boundary with the surface layer, that is natric or natric-
like in properties (a type of argillic (clay-based) horizon with 
distinct structural and chemical features) (the restrictive layer). The 
second argillic subsoil layer (that is less distinct than the upper 
argillic horizon) retains moisture through part of the year (the moist 
clay layer); and
    (b) Sparse vegetation with low to moderate introduced, invasive, 
nonnative plant species cover.
    (2) Relatively-intact, native Artemisia tridentata ssp. 
wyomingensis (Wyoming big sagebrush) vegetation assemblages, 
represented by native bunchgrasses, shrubs, and forbs, within 250 m 
(820 ft) of Lepidium papilliferum element occurrences to protect 
slickspots and Lepidium papilliferum from disturbance

[[Page 27191]]

from wildfire, slow the invasion of slickspots by nonnative species and 
native harvester ants, and provide the habitats needed by L. 
papilliferum's pollinators.
    (3) A diversity of native plants whose blooming times overlap to 
provide pollinator species with sufficient flowers for foraging 
throughout the seasons and to provide nesting and egg-laying sites; 
appropriate nesting materials; and sheltered, undisturbed places for 
hibernation and overwintering of pollinator species. In order for 
genetic exchange of Lepidium papilliferum to occur, pollinators must be 
able to move freely between slickspots. Alternative pollen and nectar 
sources (other plant species within the surrounding sagebrush 
vegetation) are needed to support pollinators during times when 
Lepidium papilliferum is not flowering, when distances between 
slickspots are large, and in years when L. papilliferum is not a 
prolific flowerer.
    (4) Sufficient pollinators for successful fruit and seed 
production, particularly pollinator species of the sphecid and vespid 
wasp families, species of the bombyliid and tachnid fly families, 
honeybees, and halictid bee species, most of which are solitary insects 
that nest outside of slickspots in the surrounding sagebrush-steppe 
vegetation, both in the ground and within the vegetation.
    The space for individual and population growth is provided by PCEs 
1, 2, and 3; the need for food, water, air, light, minerals, or other 
physiological requirements is provided by PCEs 1 and 2; the need for 
cover and shelter is met by PCEs 1 and 2; sites for reproduction, 
germination, and seed dispersal are provided by PCEs 1, 2, 3, and 4; 
and habitat free from disturbance is met by PCE 2. All of the above 
described PCEs do not have to occur simultaneously within a unit for 
the unit to constitute critical habitat for Lepidium papilliferum. All 
units and subunits proposed in this rule as critical habitat contain at 
least one of the PCEs to provide for one or more of the life-history 
functions of L. papilliferum.

Special Management Considerations or Protection

    Within the geographical area occupied by the species at the time it 
was listed, section 3(5)(A) of the Act defines critical habitat as 
those specific areas on which are found those physical or biological 
features essential to the conservation of the species and that may 
require special management considerations or protection. Accordingly, 
when designating critical habitat, we assess whether the PCEs within 
the areas occupied at the time of listing may require special 
management consideration or protections.
    A detailed discussion of the threats affecting the physical and 
biological features essential to the conservation of Lepidium 
papilliferum, and that may require special management consideration or 
protection, can be found in the final listing rule published in the 
Federal Register on October 8, 2009 (74 FR 52014). The primary threats 
to the PCEs for L. papilliferum include the following direct and 
indirect effects: The current wildfire regime (i.e., increasing 
frequency, size, and duration), invasive, nonnative plant species 
(e.g., Bromus tectorum), and habitat loss and fragmentation due to 
agricultural and urban development. One of the indirect threats 
experienced by L. papilliferum is the negative impact on insect 
pollinators caused by conversion and fragmentation of native habitats 
due to invasive, nonnative plant species and various forms of 
development. Another indirect threat is the potential increase in seed 
predation by harvester ants resulting from the conversion of sagebrush-
steppe to nonnative annual grasses such as B. tectorum. Livestock pose 
a threat to L. papilliferum, primarily through mechanical damage to 
individual plants and slickspot habitats; however, current livestock 
management conditions and associated conservation measures address this 
potential threat such that it does not pose a significant risk to the 
viability of the species as a whole. Other, less significant factors 
that have the potential to impact the species include the effects from 
rangeland revegetation projects, wildfire management practices, 
recreation, and military use.

Current Wildfire Regime

    The current wildfire regime and invasive, nonnative plant species 
were cited in the final listing rule as the primary cause for the 
decline of Lepidium papilliferum. The invasion of nonnative plant 
species, particularly annual grasses such as Bromus tectorum and 
Taeniatherum caput-medusae (medusahead), has contributed to increasing 
the amount and continuity of fine fuels across the landscape, and as a 
result, the wildfire frequency interval has been shortened from between 
60 to 110 years historically to less than 5 years in many areas of the 
sagebrush-steppe ecosystem at present (Wright and Bailey 1982, p. 158; 
Billings 1990, pp. 307-308; Whisenant 1990, p. 4; USGS 1999, in litt., 
pp. 1-9; West and Young 2000, p. 262). These wildfires tend to be 
larger and burn more uniformly than those that occurred historically, 
resulting in fewer patches of unburned vegetation, which can affect the 
post-fire recovery of native sagebrush-steppe vegetation (Whisenant 
1990, p. 4). The result of this altered wildfire regime has been the 
conversion of vast areas of the former sagebrush-steppe ecosystem to 
nonnative annual grasslands (USGS 1999, in litt., pp. 1-9). Frequent 
wildfires can also promote soil erosion and sedimentation (Bunting et 
al. 2003, p. 82) in arid environments such as the sagebrush-steppe 
ecosystem. Increased sedimentation can result in a silt layer that is 
too thick for optimal L. papilliferum germination (Meyer and Allen 
2005, pp. 6-7).
    I. Several researchers have noted signs of increased habitat 
degradation for Lepidium papilliferum, most notably in terms of exotic 
species cover and wildfire frequency (e.g., Moseley 1994, p. 23; Menke 
and Kaye 2006b, p. 19; Colket 2008, pp. 33-34), but only recently have 
analyses demonstrated a statistically significant, negative 
relationship between the degradation of habitat quality, both within 
slickspot microsites and in the surrounding sagebrush-steppe matrix, 
and the abundance of L. papilliferum. Sullivan and Nations (2009, pp. 
114-118, 137) found a consistent, statistically significant, negative 
correlation between wildfire and the abundance of L. papilliferum 
across its range. Their analysis of 5 years of Habitat Integrity and 
Population (HIP) monitoring data indicated that L. papilliferum 
``abundance was lower within those slickspot [sic] that had previously 
burned'' (Sullivan and Nations 2009, p. 137), and the relationship 
between L. papilliferum abundance and fire is reported as ``relatively 
large and statistically significant,'' regardless of the age of the 
fire or the number of past fires (Sullivan and Nations 2009, p. 118). 
The nature of this relationship was not affected by the number of fires 
that may have occurred in the past; whether only one fire had occurred 
or several, the association with decreased abundance of L. papilliferum 
was similar (Sullivan and Nations 2009, p. 118).
    Special management to protect the proposed critical habitat areas 
and the features essential to the conservation of Lepidium papilliferum 
from the effects of the current wildfire regime may include preventing 
or restricting the establishment of invasive, nonnative plant species, 
post-wildfire restoration with native plant species, and reducing the 
likelihood of wildfires affecting the nearby plant community 
components. Local fire agencies can achieve the latter

[[Page 27192]]

by providing a rapid response or mutual support agreement for wildfire 
control.

Invasive, Nonnative Plant Species

    The conversion of sagebrush-steppe habitat to nonnative annual 
grasslands over the past several decades has reduced or degraded 
suitable habitat for Lepidium papilliferum, in addition to fragmenting 
and isolating extant occupied areas. There are two primary ways for 
invasive, nonnative plants to become established in L. papilliferum 
habitats, through natural spreading (unseeded) or revegetation projects 
(seeded). The rates at which nonnative unseeded species are spreading, 
oftentimes into relatively intact habitats, is of major concern to 
natural resource managers. Invasive, nonnative plants can alter various 
attributes of ecosystems including geomorphology, wildfire regime, 
hydrology, microclimate, nutrient cycle, and productivity (for a 
summary see Dukes and Mooney 2003, entire). Additionally, these 
invasive, nonnative plants can negatively affect native plants, 
including rare plants like L. papilliferum, through competitive 
exclusion, niche displacement, hybridization, and competition for 
pollinators; examples of these negative effects are widespread among 
different taxa, locations, and ecosystems (D'Antonio and Vitousek 1992, 
pp. 63-87; Olson 1999, p. 5; Mooney and Cleland 2001, p. 1). Recent 
analyses have revealed a significant, negative association between the 
presence of weedy species and the abundance or density of L. 
papilliferum, to the point that L. papilliferum may be excluded from 
slickspots (Sullivan and Nations 2009, pp. 109-112). Although the 
specific mechanisms are not well understood, some of these plants, such 
as Agropyrum cristatum (crested wheatgrass) and Bromus tectorum, are 
strong competitors in this arid environment for such limited resources 
as moisture, which tends to be concentrated in slickspots (Pyke and 
Archer 1991, p. 4; Moseley 1994, p. 8; Lesica and DeLuca 1998, p. 4), 
at least in the subsurface soils (Fisher et al. 1996, pp. 13-16).
    Special management to protect the features essential to the 
conservation of Lepidium papilliferum in the areas proposed as critical 
habitat from the effects of invasive, nonnative unseeded plant species 
may include the following: (1) protecting remnant blocks of native 
vegetation, (2) educating the public about invasive, nonnative species, 
(3) supporting research and funding for nonnative plant species 
control, (4) preventing or restricting the establishment of nonnative 
plant species, (5) washing vehicles prior to any travel into areas 
containing L. papilliferum, (6) quarantining livestock prior to 
entering allotments containing L. papilliferum, and (7) reducing the 
likelihood of wildfires.

Livestock Use

    The most visible effect to Lepidium papilliferum and its habitat 
from livestock use is through trampling impacts. Livestock trampling 
can affect the fragile soil layers of slickspots (Colket 2005, p. 34; 
Meyer et al. 2005, pp. 21-22; Seronko 2004, in litt.). Trampling when 
slickspots are dry can lead to mechanical damage to the slickspot soil 
crust, potentially resulting in invasion of nonnative plants into the 
slickspots and altering the hydrologic function of slickspots, but is 
hypothesized to be less of an impact to L. papilliferum habitats than 
trampling of wet slickspot soils. Livestock trampling of water-
saturated slickspot soils that breaks through the restrictive layer 
(referred to as ``penetrating trampling'' (State of Idaho et al. 2006, 
p. 9)) has the potential to alter the soil structure and the 
functionality of slickspots (Rengasamy et al. 1984, p. 63; Seronko 
2004, in litt.). Penetrating trampling that occurs when slickspots are 
wet also has the potential to affect the seed bank for L. papilliferum 
by pushing the seeds below a depth where they can germinate (i.e., 
below 3 cm (1.5 in.)) (Meyer and Allen 2005, pp. 9-10; Meyer et al. 
2006, pp. 891, 901-902).
    There are also indirect effects from livestock use that have 
impacted the sagebrush-steppe ecosystem. Livestock use has been 
suggested as a contributing factor to the spread of invasive, nonnative 
plant species (Frost and Launchbaugh 2003, pp. 43-45). The spread of 
Bromus tectorum on the Snake River Plain in particular has been 
attributed to several causes, including the past practice of heavy, 
unmanaged livestock use in the late 1800s (Mack 1981, pp. 145-165). 
Today, invasive, nonnative annual plants such as B. tectorum are so 
widespread that they have been documented spreading into areas that 
have not been disturbed (Tisdale et al. 1965, pp. 349, 351). Therefore, 
the absence of livestock use is no longer sufficient, by itself, to 
protect the landscape from invasive, nonnative species (Frost and 
Launchbaugh 2003, p. 44).
    With careful management, livestock grazing may be used as a tool to 
select for certain native species, or even to control B. tectorum 
(Frost and Launchbaugh 2003, p. 43). For example, under the revised 
Juniper Butte Range Integrated Natural Resources Management Plan 
(INRMP), the U.S. Air Force will continue to use livestock throughout 
the majority of the Juniper Butte Range to reduce the amount of 
standing grass biomass to in turn reduce wildfire risk (U.S. Air Force 
2004, pp. 6-37 through 6-39). However, this requires intensive 
management and timing that is not typically feasible over large areas.
    Research designed to specifically examine the relationship between 
livestock use and Lepidium papilliferum is currently being conducted by 
the University of Idaho and the State of Idaho in cooperation with the 
Service (State of Idaho et al. 2006, p. 119).
    Special management to protect the features essential to the 
conservation of Lepidium papilliferum from the effects of livestock use 
in the areas proposed as critical habitat may include conservation 
measures and actions to minimize the effects of livestock use on these 
lands. Existing conservation plans contain numerous measures to avoid, 
mitigate, and monitor the effects of livestock use on L. papilliferum. 
Livestock-grazing conservation measures implemented through the State 
of Idaho Candidate Conservation Agreement (CCA) and the U.S. Air Force 
INRMP apply to all Federal and State-managed lands within the occupied 
range of L. papilliferum (approximately 95 percent of the total 
occupied area). Existing conservation measures include prescribing a 
minimum distance for the placement of salt and water troughs, 
identifying livestock use restrictions to reduce trampling of 
slickspots during wet periods, constructing fences, or potentially 
modifying current livestock use. We recognize the potential for 
negative impacts to L. papilliferum populations and slickspots that may 
result from seasonal, localized trampling events. However, under 
current management conditions, we do not consider livestock use to pose 
a significant threat to L. papilliferum. We encourage the continued 
implementation of conservation measures and associated monitoring to 
ensure potential impacts of livestock trampling to L. papilliferum are 
avoided or minimized.

Residential and Agricultural Development

    Past residential and agricultural development was responsible for 
five documented extirpations and four probable extirpations of Lepidium 
papilliferum (Colket et al. 2006, p. 4). The long-term viability of L. 
papilliferum on private land on the Snake River Plain and adjacent 
Boise

[[Page 27193]]

foothills is uncertain due to the continuing residential and urban 
development in and around Boise (Moseley 1994, p. 20). Residential and 
agricultural development can affect L. papilliferum and slickspot 
habitat through habitat conversion, increased nonnative plant 
invasions, increased ORV use, increased wildfire, changes to insect 
populations, and increased fragmentation. Utility lines such as power 
and gas lines, as well as roads, also fragment L. papilliferum occupied 
areas and act as corridors for nonnative plant invasions.
    Special management to protect the features essential to the 
conservation of Lepidium papilliferum from the effects of residential 
and agricultural development in the areas proposed may include creating 
managed plant reserves and open spaces; limiting disturbances to and 
within suitable habitats; increasing compliance inspections with permit 
holders; requiring project fencing with adjacent construction 
activities; disallowing new roads; and evaluating the need for and 
conducting restoration or revegetation of native plants in open spaces, 
plant preserves, or disturbed areas, such as cuts for powerlines.
    The designation of critical habitat does not imply that lands 
outside of critical habitat do not play an important role in the 
conservation of Lepidium papilliferum. Activities with a Federal nexus 
that may affect those areas outside of critical habitat, such as 
development, agricultural, or road construction activities, are still 
subject to review under section 7 of the Act if they may affect L. 
papilliferum. The prohibitions of section 9 of the Act include the 
import or export of listed species, and the removal to possession or 
malicious damage or destruction of a species under Federal jurisdiction 
(16 U.S.C. 1538(a)(2)).

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we used the best 
scientific data available in determining those specific areas within 
the geographical area occupied at the time of listing that contain the 
features essential to the conservation of Lepidium papilliferum and 
that may require special management considerations or protection. Our 
proposed designation of critical habitat for L. papilliferum is based 
on the information and procedures detailed in the Methods section, 
above. As described, we are proposing to designate critical habitat 
within the three physiographic regions where the species was known to 
occur at the time of listing (October 8, 2009), the Boise Foothills, 
the Snake River Plain, and the Owyhee Plateau. The areas we are 
proposing to designate as critical habitat were all occupied at the 
time of listing, and provide physical and biological features essential 
for the conservation of L. papilliferum that may require special 
management considerations or protection. All proposed areas provide one 
or more of the PCEs for life history function. We do not propose to 
designate areas outside the geographical area presently occupied by the 
species.
    We included all Lepidium papilliferum EOs with INHP rankings of B, 
BC, and C in the proposed critical habitat. We conclude that areas with 
these rankings provide the physical and biological features essential 
to the conservation of the species, as they are most likely to provide 
for viable populations of L. papilliferum that will contribute to the 
conservation and recovery of the species, and each provides one or more 
of the PCEs as defined in this proposed rule. EOs ranked as B have one 
or more of the following features: More than 399 individuals, low 
nonnative plant species cover, predominantly unburned, few 
anthropogenic disturbances, and a surrounding landscape that is only 
minimally or partially fragmented within a distance of 1 km (0.6 mi). 
EOs ranked C have one or more of the following features: More than 50 
individuals; low to moderate nonnative plant species cover; only 
partially burned; few to moderate anthropogenic disturbances; and a 
surrounding landscape within 1 km (0.6 mi) that is not predominantly 
fragmented by development, nonnative annual grasslands, or nonnative 
seeding projects. For the purposes of the proposed critical habitat 
analyses, we categorized areas containing B- or BC-ranked EOs 
(intermediate between B-rank and C-rank, see Colket et al. 2006, p. 5) 
as having high conservation value for the slickspot peppergrass, while 
areas containing C-ranked EOs were categorized as having medium 
conservation value for the species. Because data on condition, 
landscape context, and size are used to calculate the EO rankings, it 
is important to keep in mind that while some EOs included as critical 
habitat have lower habitat quality than others, their higher ranking 
may reflect their larger size. Based on the ranking definitions 
detailed above, EOs ranked as B, BC, and C are considered to contain 
some or all of the PCEs essential to the conservation of Lepidium 
papilliferum. We considered those EOs ranked C or higher to provide the 
PCEs for L. papilliferum in the quantity and spatial arrangement 
essential to the conservation of the species, and determined that these 
EOs are collectively sufficient to achieve the conservation and 
recovery of the species.
    We did not include sites ranked D or lower in the proposed 
designation. D-ranked sites have 50 or fewer individuals of Lepidium 
papilliferum, and the quality of the habitat is poor. Few components of 
the native plant community remain, introduced plant species cover is 
high, and the slickspots themselves have high invasive, nonnative plant 
cover or have been subject to livestock disturbance. Few or several 
moderately severe anthropogenic disturbances are evident at such sites, 
and each site has been predominantly to completely burned (Colket et 
al. 2006, p. 4). Portions of these sites may have been drill-seeded 
(seeded using a specialized attachment on a tractor to mechanically 
plant seeds), which alters the slickspot soil layers. The landscape 
around such sites is moderately to completely fragmented by 
agricultural lands, residential or commercial development, introduced 
annual grasslands, or drill-seeding projects (Colket et al. 2006, p. 
4). Due to the poor condition of the habitat around D-ranked sites, the 
low viability of the small L. papilliferum populations remaining at 
such sites, and the fragmented nature of the surrounding landscape, we 
determined that EOs ranked D or lower do not provide the PCEs in 
sufficient quantity or spatial arrangement to be essential to the 
conservation of the species, and are therefore not expected to make any 
meaningful contribution to the recovery of the species. Based on our 
evaluation of EOs ranked C or higher, we did not consider sites ranked 
D or lower to be necessary to achieve the conservation of the species. 
Therefore, we did not include EOs ranked D or lower in the proposed 
designation.
    Based on this analysis, we are proposing to designate four units as 
critical habitat for Lepidium papilliferum: The Ada County Unit, the 
Elmore County Unit, the Owyhee County Unit, and the Payette County 
Unit. Two of these units are further divided into subunits; the Ada 
County Unit has four subunits and the Elmore County Unit has three 
subunits. Subunits are used for ease of mapping. There are 17 EOs 
within the Ada County Unit, 12 EOs within the Elmore County Unit, 11 
EOs within the Owyhee County Unit, and 3 EOs within the Payette County 
Unit, for a total of 43 EOs, ranked B, BC, or C, included in this

[[Page 27194]]

designation. After applying the above criteria, we mapped the critical 
habitat unit boundaries for each of the four units. We created maps in 
a GIS using aerial imagery, 7.5 minute topographic maps, contour data, 
Idaho Natural Heritage Data, and Public Land Survey System data.
    When determining proposed critical habitat boundaries within this 
proposed rule, we made every effort to avoid including developed areas 
such as lands covered by buildings, pavement, and other structures 
because such lands lack PCEs for Lepidium papilliferum. The scale of 
the maps we prepared under the parameters for publication within the 
Code of Federal Regulations may not reflect the exclusion of such 
developed lands. Any such lands inadvertently left inside critical 
habitat boundaries shown on the maps of this proposed rule have been 
excluded by text in the proposed rule and are not proposed for 
designation as critical habitat. Therefore, if the critical habitat is 
finalized as proposed, a Federal action involving these lands would not 
require section 7 consultation with respect to critical habitat, nor 
would it trigger the requirement of no adverse modification, unless the 
specific action would affect the PCEs in the adjacent critical habitat.

Proposed Critical Habitat Designation

    We are proposing four units as critical habitat for Lepidium 
papilliferum. The critical habitat areas we describe below constitute 
our current best assessment of areas that meet the definition of 
critical habitat for L. papilliferum. The four areas we propose as 
critical habitat are: (1) The Ada County Unit, (2) the Elmore County 
Unit, (3) the Owyhee County Unit, and (4) the Payette County Unit. All 
units were occupied at the time of listing and are currently occupied. 
The approximate areas of each proposed critical habitat unit and 
associated subunits, if any, are shown in Table 1.

                    Table 1--Proposed Critical Habitat Units and Area (Hectares (Acres)) by Land Ownership for Lepidium Papilliferum
                                   [Area estimates reflect all land within proposed critical habitat unit boundaries]
--------------------------------------------------------------------------------------------------------------------------------------------------------
          Unit or subunit                   Federal                  State            Municipal  (county)          Private                 Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 1--Payette County............  257 ha                  0 ha                    0 ha                    16 ha                  273 ha
                                    (635 ac)                (0 ac)                  (0 ac)                  (40 ac)                (675 ac)
Unit 2--Ada County................  4,842 ha                1,149 ha                340 ha                  667 ha                 6,998 ha
                                    (11,964 ac)             (2,840 ac)              (840 ac)                (1,648 ac)             (17,292 ac)
2a................................  644 ha                  0 ha                    340 ha                  291 ha                 1,275 ha
                                    (1,592 ac)              (0 ac)                  (840 ac)                (719 ac)               (3,151 ac)
2b................................  2,676 ha                98 ha                   0 ha                    32 ha                  2,806 ha
                                    (6,613 ac)              (241 ac)                (0 ac)                  (80 ac)                (6,934 ac)
2c................................  512 ha                  98 ha                   0 ha                    311 ha                 921 ha
                                    (1,265 ac)              (242 ac)                (0 ac)                  (768 ac)               (2,275 ac)
2d................................  1,009 ha                954 ha                  0 ha                    33 ha                  1,996 ha
                                    (2,494 ac)              (2,357 ac)              (0 ac)                  (81 ac)                (4,932 ac)
Unit 3--Elmore County.............  3,483 ha                97 ha                   0 ha                    418 ha                 3,998 ha
                                    (8,606 ac)              (239 ac)                (0 ac)                  (1,034 ac)             (9,879 ac)
3a................................  696 ha                  0 ha                    0 ha                    241 ha                 937 ha
                                    (1,721 ac)              (0 ac)                  (0 ac)                  (595 ac)               (2,316 ac)
3b................................  656 ha                  97 ha                   0 ha                    49 ha                  801 ha
                                    (1,621 ac)              (239 ac)                (0 ac)                  (120 ac)               (1,980 ac)
3c................................  2,130 ha                0 ha                    0 ha                    129 ha                 2,259 ha
                                    (5,264 ac)              (0 ac)                  (0 ac)                  (319 ac)               (5,583 ac)
Unit 4--Owyhee County.............  11,505 ha (28,428 ac)   600 ha                  0 ha                    0 ha                   12,105 ha (29,910 ac)
                                                            (1,482 ac)              (0 ac)                  (0 ac)
All Units.........................  20,086 ha (49,633 ac)   1,846 ha                340 ha                  1,102 ha               23,374 ha (57,756 ac)
                                                            (4,561 ac)              (840 ac)                (2,722 ac)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum exactly due to rounding.

    We present brief descriptions of all units and their constituent 
subunits below. Each of these units provide one or more PCEs essential 
to the conservation of the species. As described above under Criteria 
Used To Identify Critical Habitat, EOs included within the units were 
chosen using the EO area ranking system developed by the INHP, which 
takes into account those physical and biological features that are 
essential to L. papilliferum (i.e., slickspots, habitat condition 
within and surrounding the area, and the conditions of the surrounding 
landscape features necessary to support pollination and other life-
history requirements), and that we have determined may require special 
management considerations or protection. We are not proposing to 
designate any areas outside the geographical area occupied by the 
species at the time of listing as critical habitat.
    The PCEs in each of these units may require special management 
considerations or protection to address threats from wildfire, 
invasive, nonnative plant species, and activities such as livestock 
trampling or development that may occur in the area. See the Special 
Management Considerations or Protection section of this proposed rule 
for a discussion of the threats to L. papilliferum habitat and 
potential management considerations. Further details on threats to L. 
papilliferum are provided in the final listing rule for the species, 
published in the Federal Register on October 8, 2009 (74 FR 52014).
    Unless otherwise cited, information used to develop these 
descriptions is based on the 2010 INHP Element Occurrence Records (EOR) 
(INHP 2010, in litt.) and the Element Occurrence review and update for 
Lepidium papilliferum, which describes how each individual EO was 
ranked (Colket et al. 2006).

Unit 1: Payette County

    The Payette County unit consists of 273 ha (675 ac). The northern 
boundary of Unit 1 is approximately 7.6 km (4.8 mi) south of New 
Plymouth, Idaho.

[[Page 27195]]

Lepidium papilliferum was known to occupy this unit at the time of 
listing; currently 257 ha (635 ac) are Federally managed by the BLM, 
and 16 ha (40 ac) are privately owned. This unit is composed of three 
L. papilliferum EOs: 66, 68, and 70. This unit contains PCEs and is 
important to the conservation of L. papilliferum because it contains 
the northernmost occurrences for L. papilliferum and potentially has 
the highest numbers of individual plants.
    The plant community of EO 66 is composed of a fragmented Artemisia 
tridentata ssp. wyomingensis/Vulpia octoflora (six weeks fescue) 
community that has had a mosaic burn and was subsequently seeded with 
Agropyron cristatum (crested wheatgrass). This is a large occurrence, 
with over 6,700 Lepidium papilliferum individuals observed along HIP 
transects in 2008. Invasive, nonnative plants, wildfire, and 
residential development are threats to this EO. Use of ORVs and 
livestock are potential threats, although an exclosure protects 
portions of the EO from livestock and ORV use.
    The second EO in Unit 1, EO 68, is primarily composed of a 
Sisymbrium altissimum (tumble mustard)/Poa secunda community, at times 
adjacent to small Artemisia tridentata ssp. wyomingensis fragments. 
This EO is adjacent to Interstate 84 and is located less than 500 m 
(1,640 ft) from commercial development. Historically, this EO has had 
high Lepidium papilliferum abundance; however, the occurrence and 
surrounding area is very weedy and has burned in the past. Wildfire, 
invasive, nonnative plants, and livestock use are threats to this 
occurrence.
    The third EO in Unit 1 is EO 70, composed of a contiguous, unburned 
Artemisia tridentata ssp. wyomingensis/Vulpia octoflora community with 
low introduced, invasive, nonnative species cover. While a relatively 
intact landscape surrounds the occurrence, historical wildfire and 
residential development have occurred within 250 m (820.2 ft) of the 
EO. The immediate threat to EO 70 is wildfire. In addition, the 
surrounding area seems to be used as a dumping ground, with trash and 
garbage evident. Livestock use is also a potential threat.

Unit 2: Ada County

    The Ada County unit consists of 6,998 ha (17,292 ac) divided into 
four subunits: 2a, 2b, 2c, and 2d. Lepidium papilliferum was known to 
occupy this unit at the time of listing. 4,842 ha (11,964 ac) of this 
unit are Federally managed by the BLM, 1,149 ha (2,840 ac) are managed 
by the State of Idaho, 340 ha (840 ac) are managed by Ada County, and 
667 ha (1,648 ac) are on private lands. This unit is composed of 17 L. 
papilliferum EOs split among the four subunits. This unit contains PCEs 
important to the conservation of L. papilliferum; many of the subunits 
are large, and contain the most intact areas of sagebrush-steppe 
habitat that has had little impact from wildfire.

Subunit 2a

    Subunit 2a contains the city of Eagle, Idaho, and the southern 
boundary of the unit is approximately 7.2 km (4.5 mi) northwest of 
Boise, Idaho. It is composed of six EOs: 38, 52, 65, 76, 107, and 108.
    Nonnative, annual weedy species dominate the landscape within EO 
38, with scattered Purshia tridentata, Artemisia tridentata ssp. 
wyomingensis, and Ericameria nauseosa (rubber rabbitbrush). This EO is 
almost completely contained within the Ada County Landfill Complex 
(Cole 2008, entire) and is located in close proximity to the Idaho 
Velodrome and Cycling Park and Eagle Sports Complex. In 2008, survey 
efforts (Cole 2008) found an additional 5,000 L. papilliferum plants, 
which resulted in a subsequent upgrade to the EO rank. Primary threats 
to this EO include wildfire (the western portion of this EO burned in 
2009 (Ada County 2010, in litt.)); human recreation associated with the 
construction of authorized and unauthorized trails for mountain biking 
and hiking (some slickspots have already been impacted); and invasive, 
nonnative weed invasions and expansions (Cole 2008, pp. 10, 13). 
Livestock use occurred in the past, but ceased in the area 
approximately 10 years ago (T. Hutchinson, pers. comm. in Cole 2008, p. 
12), and we have no evidence to suggest that livestock use is likely to 
pose a threat to this EO within the foreseeable future.
    EO 52 is composed of a varied plant community, including scattered 
islands of Purshia tridentata/Artemisia tridentata ssp. wyomingensis/
Chrysothamnus viscidiflorus (yellow rabbitbrush) with an understory 
primarily composed of Bromus tectorum and Poa secunda. It is a large 
EO, with thousands of plants documented. This EO is located near the 
Eagle/Boise urban area and receives substantial recreational use 
through hiking, equestrian riding, biking, and ORV use. Residential 
development occurs within 500 m (1,640 ft) of this subunit. EO 52 is 
known to be threatened by wildfire, invasive, nonnative plant species, 
recreation, and development.
    EO 65 is composed of an Artemisia tridentata ssp. wyomingensis/
Purshia tridentata/Bromus tectorum/Taeniatherum caput-medusae plant 
community. The Seaman's Gulch Ridge to Rivers trail system runs through 
and around a portion of this EO south of Seaman's Gulch road (Cole 
2008, p. 9). While there is a high diversity of forbs within the EO, 
the area is generally weedy overall. Biological soil crust cover in the 
general area is fairly high. Wildfire, invasive, nonnative plant 
species, and unauthorized recreation trail travel are threats to EO 65.
    The vegetative community of EO 76 is Artemisia tridentata ssp. 
tridentata/Vulpia octoflora with low cover of both native forbs and 
invasive, nonnative annuals. The surrounding landscape is completely 
disturbed from a combination of burned areas, residential development, 
and agricultural lands. However, this is a large occurrence, with 
approximately 4,800 Lepidium papilliferum individuals observed on the 
HIP transects in 2008. This EO is threatened by wildfire, invasive, 
nonnative plant species, livestock use, recreation, and residential and 
road development.
    EO 107 is located on private land. The vegetative community is 
characterized as degraded Artemisia tridentata ssp. wyomingensis 
habitat with an understory of Bromus tectorum and Aristida purpurea 
var. longiseta. At the time of the survey, there were signs of recent 
fire in the area. This EO is threatened by wildfire and invasive, 
nonnative plant species.
    EO 108 occurs in an Artemisia tridentata ssp. tridentata/Artemisia 
tridentata ssp. wyomingensis/Chrysothamnus viscidiflorus-Ericameria 
nauseosus community with a mix of native and nonnative understory 
species. The plant community within this EO is in various states of 
transition given historical disturbance regimes such as fire and use by 
livestock (URS 2008, p. 6). However, 2007 and 2008 survey data indicate 
an estimated 1,117 Lepidium papilliferum individuals are located within 
this EO. Threats to EO 108 include invasive, nonnative plant species, 
wildfires, livestock use, recreation (including ORV use), and 
residential and road development.

Subunit 2b

    The northern boundary of Subunit 2b is approximately 4.2 km (2.6 
mi) south of Kuna, Idaho. Subunit 2b is composed of three EOs: 18, 24, 
and 25.
    EO 18 is a large occurrence composed of Artemisia tridentata/Poa 
secunda, B. tectorum/Sisymbrium altissimum, and B. tectorum/Bassia 
prostrata communities. It is located approximately 14.5 km (9 mi) (14.5 
km)

[[Page 27196]]

south to southwest of Kuna and near the Kuna/Boise urban areas. Bromus 
tectorum is abundant throughout the area, with P. secunda being the 
most common bunchgrass. Wildfire destroyed the original sagebrush 
habitat throughout portions of EO 18 in the mid-1990s. Future 
wildfires, invasive, nonnative plant species, and recreation are the 
likely long-term threats facing this EO.
    EO 24 is a large EO; the following vegetative communities are just 
a few of those found within this EO: Artemisia tridentata ssp. 
wyomingensis/Bromus tectorum, B. tectorum, and B. tectorum/Agropyron 
spicatum. It is located approximately 6.4 km (4 mi) south to southwest 
of Kuna and near the Kuna/Boise urban area. The surrounding area has 
been highly disturbed by wildfires and roads, with much of the land 
surrounding Kuna Butte being converted for agricultural use. This EO is 
known to be threatened by wildfire, invasive, nonnative plant species, 
and recreation.
    The vegetative community of EO 25 is characterized as degraded 
Artemisia tridentata ssp. wyomingensis habitat. This EO is located near 
the Kuna/Boise urban area, approximately 6.4 km (4 mi) northeast of 
Melba. Much of the area has burned and is now predominantly comprised 
of Bromus tectorum, Sisymbrium altissimum, and Salsola kali with some 
Poa secunda. EO 25 is threatened by wildfire, invasive, nonnative plant 
species, and recreation.

Subunit 2c

    The northern boundary of Subunit 2c is approximately 8 km (5 mi) 
south of Boise, Idaho. It is composed of four EOs: 22, 32, 48, and 64.
    Information from previous visits describes vegetation within EO 22 
as an Artemisia tridentata spp. wyomingensis community with an 
understory dominated by Bromus tectorum. It is located about 2.4 km 
(1.5 mi) north of Pleasant Valley. Portions of this EO have burned, 
with scattered slickspots degraded to varying degrees. Threats to EO 22 
include wildfires and their effects on the remaining patches of 
sagebrush. Other threats include development of surrounding private 
land for suburban and commercial purposes.
    The vegetative community of EO 32 is composed of an Artemisia 
tridentata ssp. tridentata/Bromus tectorum and A. tridentata ssp. 
wyomingensis/Poa secunda community with an understory dominated by 
invasive, nonnative annual species. Records demonstrate a fair to good 
number of Lepidium papilliferum plants over a large area. It is located 
approximately 5.6 km (3.5 mi) southwest of the Boise Airport. This EO 
is known to be threatened by wildfire, invasive, nonnative plant 
species, recreation (ORV use), and development. Development is also a 
potential threat given the proximity of this EO to private lands.
    EO 48 is composed of an Artemisia tridentata ssp. wyomingensis/
Bromus tectorum/Elymus elymoides plant community. There is a high cover 
of litter and biological soil crust in slickspots within this EO. The 
primary threat to EO 48 is from wildfires. Other threats include 
invasion and expansion of nonnative invasive plant species, livestock 
use, and recreational use by hunters and ORVs that utilize the adjacent 
powerline roadway.
    Artemisia tridentata ssp. wyomingensis community with Bromus 
tectorum dominates the understory of EO 64. The EO is located from 50 
to 500 m (164 to 1,640 ft) south of the Boise airport and associated 
development. The slickspots in this EO are in fair condition and have 
high cover of biological soil crust. Population vigor ranges from 
moderate to excellent. This EO is threatened by wildfire, invasive, 
nonnative plant species, and potential development associated with 
airport activities.

Subunit 2d

    The northern boundary of subunit 2d is approximately 24.8 km (15.4 
mi) southeast of Boise, Idaho. Subunit 2d is composed of four EOs: 27, 
72, 77, and 104.
    The dominant vegetation of EO 27 consists of Artemisia tridentata 
ssp. wyomingensis/Poa secunda/Ceratocephala testiculata and A. 
tridentata ssp. wyomingensis/Bromus tectorum/Lepidium perfoliatum, 
predominantly the former. It is located approximately 35 km (21 mi) 
southeast of Boise. Some parts of this EO have burned in the past, 
although the entire EO is relatively intact and constitutes one of the 
largest blocks of unburned sagebrush-steppe habitats left on the 
western Snake River Plain. A portion of this EO includes the Orchard 
Training Area (OTA), managed by the Idaho Army National Guard, and we 
are proposing to exempt this area from the designation of critical 
habitat under section 4(a)(3) of the Act (see Exemptions, below). This 
EO is known to be threatened by wildfire, invasive, nonnative plant 
species, and livestock disturbances.
    Vegetative communities of EO 72 include the following: Artemisia 
tridentata ssp. tridentata/Bromus tectorum, Chrysothamnus 
viscidiflorus/A. tridentata ssp. wyomingensis/Poa secunda, A. 
tridentata ssp. wyomingensis/P. secunda/B. tectorum/A. tridentata ssp. 
tridentata, and Agropyron cristatum/P. secunda. This EO is located 
roughly 23 km (14 mi) south of Boise. Most of the EO has burned at 
least once in the past couple of decades resulting in a mix of small-
to-fairly-large shrub patches intermixed with invasive, nonnative, 
annual-grassland vegetation. This EO is known to be threatened by 
wildfire, invasive, nonnative plant species, and livestock trampling.
    The plant community of EO 77 is composed of an Artemisia tridentata 
ssp. wyomingensis/Bromus tectorum/Poa seconda. While the EO is 
unburned, the surrounding area is partially burned. Bromus tectorum is 
growing abundantly throughout the general EO. Wildfires are the primary 
threat to this EO because of the existing Bromus tectorum understory. 
Livestock trampling of slickspots is also a continued threat.
    The primary community type of EO 104 is a Bromus tectorum/Poa 
secunda and Chrysothamnus spp./P. secunda/B. tectorum. This EO is 
located approximately 23 km (14 mi) south of Boise. Most of the EO has 
burned at least once in the past 20 years resulting in a mix of small 
to fairly large shrub patches and areas of annual grassland. Invasive, 
nonnative plants, wildfire, and livestock are threats to this EO.

Unit 3: Elmore County

    The Elmore County unit consists of 3,998 ha (9,879 ac) divided into 
three subunits: 3a, 3b, and 3c. Lepidium papilliferum was known to 
occupy this unit at the time of listing. 3,483 ha (8,606 ac) of this 
unit are Federally managed, of which 3,418 ha (8,446 ac) are managed by 
BLM and 65 ha (160 ac) by the Bureau of Reclamation (BOR), 97 ha (239 
ac) are managed by the State of Idaho, and 418 ha (1,034 ac) are 
privately owned. This unit is composed of 12 L. papilliferum EOs. This 
unit contains PCEs and is important to the conservation of L. 
papilliferum because it contains EOs with good habitat, represents a 
significant portion of the species' range, and contains several EOs 
with high numbers of L. papilliferum individuals.

Subunit 3a

    The northern boundary of subunit 3a is approximately 6.8 km (4.2 
mi) south of Mayfield, Idaho, while the southern boundary is 
approximately 19.6 km (12.2 mi) northwest of Mountain Home, Idaho. 
Subunit 3a is composed of three EOs: 20, 30, and 31.
    EO 20 is composed of Artemisia tridentata/Poa secunda/Bromus

[[Page 27197]]

tectorum and introduced invasive, nonnative, annual-grassland 
communities. This EO is located adjacent to Interstate 84 and Old 
Highway 30. Residential development occurs within 250 m (820 ft) of the 
EO. Portions of this EO have burned in the past, and Agropyron 
cristatum drill-seeding is evident along the northeast edge of the EO. 
The primary threats to this EO are wildfires, invasive, nonnative 
weeds, and development on private lands.
    The plant community of EO 30 contains a large stand of intact, 
mature sagebrush-steppe habitat with various size classes of Artemisia 
tridentata ssp. wyomingensis represented, and a grass-dominated 
understory. This EO is located in close proximity to Old Highway 30 and 
private lands. Although the EO area is unburned, the adjacent areas and 
surrounding landscape have been burned and are fragmented. This is a 
large EO with over 7,000 Lepidium papilliferum plants observed in 2000. 
It is known to be threatened by wildfire, invasive, nonnative plants, 
urban development, and recreation.
    The plant community of EO 31 is composed of Artemisia tridentata 
spp. wyomingensis/Poa secunda, A. tridentata spp. wyomingensis/B. 
tectorum, and introduced grasses. It consists of a mid-size population 
in good-to-fair habitat condition. Part of the EO has burned, and the 
surrounding landscape is predominantly burned. This EO is threatened by 
wildfires, livestock trampling, private land development, and ORV use.

Subunit 3b

    The boundaries of subunit 3b contain the city of Mountain Home, 
Idaho, while the northern boundary is approximately 63.9 km (39.7 mi) 
southeast of Boise, Idaho. Subunit 3b is composed of seven EOs: 2, 21, 
29, 50, 51, 61, and 62.
    EO 2 is composed of a large, unburned Artemisia tridentata ssp. 
wyomingensis/Poa secunda plant community with low-to-moderate cover of 
Bromus tectorum, Salsola kali, and Lepidium perfoliatum. It is located 
approximately 11 km (7 mi) west of Mountain Home. Wildfire and 
livestock disturbances are the major threats to this relatively intact 
EO.
    EO 21 consists of a largely-intact stand of sagebrush-steppe 
habitat that consists of a community of native species including 
Artemisia tridentata ssp. wyomingensis and Poa secunda, and the 
introduced, nonnative plant Ceratocephala testiculata. It is located 
approximately 6 km (4 mi) west of Mountain Home and 1.6 km (1.0 mi) 
south of Interstate 84. There is low understory cover, but high 
biological crust cover. This occurrence has not been burned, although 
the surrounding landscape is predominantly burned. This EO is 
threatened by wildfire, invasive, nonnative, annual plant species, and 
recreation.
    Although the overstory in the area of the third EO in this subunit, 
EO 29, is composed of Artemisia tridentata ssp. wyomingensis, the 
understory is now dominated by Bromus tectorum. This EO is located 
about 3 km (2 mi) southeast of Mountain Home, between Interstate 84 
(about 65 m (210 ft) away) and burned, nonnative, annual-grassland 
habitat. There is a fairly high biological soil crust cover of 
approximately 30 percent in the surrounding landscape, and slickspots 
also tend to have a relatively high crust cover. This EO is threatened 
by wildfire and invasive, nonnative plant species.
    EO 50 has a largely-native-species overstory, with fairly 
contiguous Artemisia tridentata ssp. wyomingensis cover; however, the 
understory is dominated by Bromus tectorum. It is located approximately 
5.6 km (3.5 mi) southeast of Mountain Home. The EO itself is unburned, 
although surrounding BLM and private lands have burned in the past. 
Slickspots are clumped in several areas within this occurrence. The 
surrounding landscape is fragmented due to a combination of burned 
areas, residential development, and agricultural lands. This EO is 
threatened by invasive, nonnative plant species and wildfire. Urban 
encroachment is occurring on adjacent, privately-owned lands, which 
could lead to further fragmentation of the surrounding landscape.
    The plant community of EO 51 consists of a mix of native and 
nonnative plant species, primarily Artemisia tridentata ssp. 
wyomingensis in the overstory and Ceratocephala testiculata and 
Descurainia pinnata (western tansymustard) in the understory. It is 
located roughly 5 km (3 mi) east of Mountain Home. There is a low 
diversity and abundance of native forbs but only trace amounts of 
Bromus tectorum. The EO and adjacent landscape have not burned. 
Slickspots are widespread, and good biological soil crust cover is 
represented in some places. Threats to this EO include wildfire and 
invasive, nonnative, annual plant species.
    The landscape in and surrounding EO 61 is predominantly burned, 
resulting in a highly-fragmented mosaic of remnant Artemisia tridentata 
ssp. wyomingensis patches, with an understory dominated by invasive, 
nonnative plant species and herbaceous openings that support a mix of 
Agropyron cristatum, scattered native bunchgrasses, and Bromus 
tectorum. It is located approximately 3 km (2 mi) southeast of Reverse, 
Idaho. Weedy forbs are widespread and locally abundant. Much of 
surrounding landscape has been converted to agricultural lands. 
Wildfires and nonnative, invasive plant species continue to threaten 
this EO. Disturbance from livestock is also a threat.
    The vegetation in the last EO in this subunit, EO 62, is made up of 
an Artemisia tridentata ssp. wyomingensis/Ceratocephala testiculata/Poa 
secunda community. It is located approximately 6 km (4 mi) east of 
Mountain Home. The EO is located on an unburned area. Where Lepidium 
papilliferum is found, slickspots are locally abundant. Bromus tectorum 
is locally common, but sparse in most places. Threats to this EO 
include invasive, nonnative plant species, wildfire, and livestock use.

Subunit 3c

    The southern boundary of subunit 3c is approximately 0.6 km (1.0 
mi) northeast of Hammett, Idaho, while the western boundary is 24 km 
(15 mi) southeast of Mountain Home, Idaho. This subunit is composed of 
two EOs: 8 and 26.
    One of the most extensive populations of Lepidium papilliferum 
known is found in EO 8. The habitat quality ranges from poor to good. 
Areas mainly east of Bennett Road are represented by intact sagebrush-
steppe habitat, primarily Artemisia tridentata ssp. wyomingensis/Poa 
secunda communities. West of Bennett Road is former habitat that 
burned; has been reseeded; and is now dominated by nonnative grasses, 
such as Agropyron cristatum and some Bromus tectorum, as well as weedy 
annual forbs. Widely scattered A. tridentata ssp. wyomingensis occurs 
throughout the burned area. Many L. papilliferum individuals have been 
observed in both burned and unburned areas some years. This EO is 
threatened by wildfire, invasive, nonnative plant species, and 
recreational use.
    The other EO in this subunit, EO 26, is located in an area of 
extensive sagebrush-steppe habitat, primarily Artemisia tridentata ssp. 
wyomingensis/Poa secunda communities. It is approximately 8 km (5 mi) 
northwest of Glenns Ferry. This EO is made up of a relatively-large 
population of Lepidium papilliferum; since 2002, estimates have placed 
the population size at approximately 5,000 individuals. The habitat 
quality ranges from relatively-

[[Page 27198]]

good ecological condition with little disturbance, to disturbed areas 
with invasive, nonnative plant species cover. Biological soil crust 
cover is high in places. Residential and commercial development is 
located within 250 to 500 m (820 to 1,640 ft) of the occurrence. 
Wildfire, invasive, nonnative plants, livestock trampling, and 
development are threats to this EO.

Unit 4: Owyhee County

    The Owyhee County unit consists of 12,105 ha (29,910 ac). The 
northern boundary of unit 4 is approximately 86.9 km (54.0 mi) south of 
Mountain Home, Idaho, while the eastern boundary is 51.8 km (32.2 mi) 
west of Rogerson, Idaho. Lepidium papilliferum was known to occupy this 
unit at the time of listing. 11,505 ha (28,428 ac) of this unit are 
Federally managed by the BLM, while 600 ha (1,482 ac) are managed by 
the State of Idaho. This unit contains PCEs and is important to the 
conservation of L. papilliferum because it contains the largest amount 
of contiguous habitat with little fragmentation or development. This 
unit is composed of eleven EOs: 74, 80, 84, 85, 92, 95, 96, 97, 98, 99, 
and 16.
    The plant community of EO 74 is primarily made up of a degraded 
Artemisia tridentata ssp. wyomingensis/Pseudoroegneria spicata 
(bluebunch wheatgrass) community. Poa secunda is the dominant 
understory species. Overall habitat quality ranges from good to fair. 
Invasive, nonnative, annual plant species, wildfire, and livestock pose 
an ongoing threat to this EO.
    Plants within EO 80 consist of Artemisia tridentata ssp. 
wyomingensis/Pseudoroegneria spicata and A. tridentata ssp. 
wyomingensis/Achnatherum thurberianum (Thurber's needlegrass) community 
types. The surrounding landscape has a mosaic burn. Overall habitat is 
in good-to-fair condition. Invasive, nonnative plants and wildfire are 
the primary threats, particularly because the landscape is a mix of 
burned and unburned areas. Livestock grazing is also a potential 
threat.
    The plant community of EO 84 habitat is primarily an Artemisia 
tridentata ssp. wyomingensis/Poa secunda community. Both the EO and 
surrounding landscape are unburned. The population is estimated at 
greater than 400 Lepidium papilliferum individuals. While the 
surrounding landscape will help protect it, wildfire still poses the 
greatest threat to this unburned EO. Livestock use and invasive, 
nonnative plant species are additional threats to this EO. A two-track 
road also runs through the EO, which increases the likelihood of 
disturbance from recreation and ORV use.
    An Artemisia tridentata ssp. wyomingensis/Pseudoroegneria spicata 
community with low A. tridentata ssp. wyomingensis cover makes up the 
plant community of EO 85. Although this EO was initially ranked E (due 
to a lack of information) a somewhat thorough survey was conducted in 
2006. During the survey, six occupied slickspots were found and the 
rank was changed to a C. Potential threats to this EO include wildfire, 
invasive, nonnative plant species, and livestock trampling.
    The fifth EO in this unit, EO 92 is made up of an Artemisia 
tridentata ssp. wyomingensis/Poa secunda community that has been seeded 
with Agropyron cristatum. It is located approximately 8 km (5 mi) 
southwest of Clover Butte. Although this EO is unburned, the 
surrounding landscape has been predominately to completely burned. This 
EO is threatened by wildfire, invasive, nonnative plant species, and 
livestock use.
    Plants within EO 95 habitat consist of Artemisia tridentata ssp. 
wyomingensis/Poa secunda and Agropyron cristatum/P. secunda 
communities. Although the occurrence is unburned, some of the 
surrounding areas have burned, and portions of this area, as well as 
the surrounding landscape, have been seeded with A. cristatum and other 
species. Threats include wildfire, invasive, nonnative plant species, 
and livestock use.
    EO 96 includes Artemisia tridentata ssp. wyomingensis/Poa secunda 
and Agropyron cristatum/P. secunda plant communities. The occurrence 
and surrounding landscape is unburned to predominately burned, and 
includes areas that were seeded after fire. Overall site quality has 
been assessed as fair to good. Threats include invasive, nonnative 
plant species, wildfire, and livestock trampling.
    EO 97 is made up of an Artemisia tridentata ssp. wyomingensis/Poa 
secunda community. This occurrence is located in the vicinity of 
Juniper Butte. Overall condition of the occurrence has been assessed as 
excellent with a fair population size. The EO has not burned, and the 
surrounding landscape is predominately unburned. Threats to this EO 
include wildfire, invasive, nonnative plant species, and livestock use.
    EO 98 is an Artemisia tridentata ssp. wyomingensis/Poa secunda 
community. It is located in the vicinity of Burnt Butte. Although the 
population size is small, the habitat quality of the occurrence and 
surrounding area has been assessed as good. The occurrence is unburned, 
and the adjacent areas and surrounding landscape are predominantly 
unburned as well. Threats to this EO include invasive, nonnative plant 
species, livestock use, and potentially wildfire.
    EO 99 is described as an Ericameria nauseosa/Artemisia tridentata 
ssp. wyomingensis/Poa secunda community. This EO is located southeast 
of Burnt Butte. Habitat quality has been assessed as good. Both the EO 
and surrounding landscape are predominately unburned. This EO is 
threatened by wildfire, invasive, nonnative plant species, and 
livestock trampling.
    EO 16 includes 8 sub-EOs. Because of its large size, site quality 
varies significantly from one area to another, ranging from healthy and 
unburned sagebrush-steppe, to degraded annual grasslands or Agropyron 
cristatum seedings. There are estimated to be thousands of Lepidium 
papilliferum plants across this large area. The surrounding landscape 
includes unburned to completely burned areas. General threats to the 
population include wildfire, invasive, nonnative plant species, and 
livestock use.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. Decisions 
by the Fifth and Ninth Circuits Courts of Appeals have invalidated our 
regulatory definition of ``destruction or adverse modification'' (50 
CFR 402.02) (see Gifford Pinchot Task Force v. U.S. Fish and Wildlife 
Service, 378 F. 3d 1059 (9th Cir 2004) and Sierra Club v. U.S. Fish and 
Wildlife Service et al., 245 F.3d 434, 442F (5th Cir 2001)), and we do 
not rely on this regulatory definition when analyzing whether an action 
is likely to destroy or adversely modify critical habitat. Under the 
statutory provisions of the Act, the key factor in determining whether 
an action will destroy or adversely modify critical habitat is whether, 
with implementation of the proposed Federal action, the affected 
critical habitat would remain functional (or retain those PCEs that 
relate to the ability of the area to support the species) to serve its 
intended conservation role for the species.
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of the species or to destroy or adversely modify 
its critical

[[Page 27199]]

habitat. If a Federal action may affect a listed species or its 
critical habitat, the responsible Federal agency (action agency) must 
enter into consultation with us. As a result of this consultation, we 
document compliance with the requirement of section 7(a)(2) through our 
issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable. We define 
``Reasonable and prudent alternatives'' at 50 CFR 402.02 as alternative 
actions identified during consultation that:
     Can be implemented in a manner consistent with the 
intended purpose of the action,
     Can be implemented consistent with the scope of the 
Federal agency's legal authority and jurisdiction,
     Are economically and technologically feasible, and
     Would, in the Director's opinion, avoid jeopardizing the 
continued existence of the listed species or destroying or adversely 
modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agencies discretionary 
involvement or control is authorized by law). Consequently Federal 
agencies may need to request reinitiation of consultation with us on 
actions for which formal consultation has been completed, if those 
actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.
    Federal activities that may affect Lepidium papilliferum or its 
designated critical habitat require section 7 consultation under the 
Act. Activities on State, Tribal, local, or private lands requiring 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 us under section 10 of the Act) or involving some other 
Federal action (such as funding from the Federal Highway 
Administration, Federal Aviation Administration, or the Federal 
Emergency Management Agency) are subject to the section 7 consultation 
process. 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 permitted, do not require section 
7 consultations.

Application of the Jeopardy and Adverse Modification Standards

Jeopardy Standard

    Currently, the Service applies an analytical framework for Lepidium 
papilliferum jeopardy analyses that relies heavily on the importance of 
habitat parameters at known population sites essential to the species' 
survival and recovery. The Service focuses its section 7(a)(2) analysis 
not only on these populations but also on the habitat conditions 
necessary to support them.
    The jeopardy analysis usually expresses the survival and recovery 
needs of Lepidium papilliferum in a qualitative fashion without making 
distinctions between what is necessary for survival and what is 
necessary for recovery. Generally, the jeopardy analysis focuses on the 
rangewide status of L. papilliferum, the factors responsible for that 
condition, and what is necessary for the species to survive and 
recover. An emphasis is also placed on characterizing the conditions of 
L. papilliferum and its habitat in the area affected by the proposed 
Federal action and the role of affected populations in the survival and 
recovery of L. papilliferum. That context is then used to determine the 
significance of the adverse and beneficial effects of the proposed 
Federal action and any cumulative effects for purposes of making the 
jeopardy determination.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Generally, the conservation role of 
Lepidium papilliferum critical habitat units is to support the various 
life-history needs and provide for the conservation of the species. 
Activities that may destroy or adversely modify critical habitat are 
those that alter the PCEs to an extent that appreciably reduces the 
conservation value of the critical habitat as a whole for L. 
papilliferum.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that, when carried out, funded, or authorized by a 
Federal agency, may affect critical habitat and therefore result in 
consultation for Lepidium papilliferum include, but are not limited to:
    (1) Actions that would result in the loss of, or ground disturbance 
to, slickspot microsites. Such activities could include, but are not 
limited to: Residential or recreational development and associated 
infrastructure, ORV activity, dispersed recreation, new road 
construction or widening, existing road maintenance, new or expansion 
of existing energy projects, existing energy corridor maintenance, 
wildfire suppression and post-wildfire rehabilitation activities, 
military training activities, and incompatible livestock use practices 
(such as grazing during periods of saturated soil conditions, when 
slickspots are wet and trampling is most likely to disrupt the 
underlying clay layer). These activities could cause direct loss of 
Lepidium papilliferum-occupied areas, and affect slickspot microsites 
by damaging or eliminating habitat, altering soil composition due to 
increased erosion, and increasing densities of nonnative plant species. 
Ground disturbance may also result in deep burial of L. papilliferum 
seeds such that germinants can not successfully reach the soil surface 
to flower and set seed.
    In addition, changes in soil composition may lead to changes in the 
vegetation composition, such as an increase in invasive, nonnative 
plant cover within and adjacent to slickspot microsites, resulting in 
decreased density or vigor of individual Lepidium papilliferum plants. 
These activities may also lead to changes in water flows and inundation 
periods that would degrade, reduce, or eliminate the habitat necessary 
for the growth and reproduction of L. papilliferum.
    (2) Actions that would result in the significant alteration of 
intact, native, sagebrush-steppe habitat within the range of Lepidium 
papilliferum. Such activities could include: Residential or 
recreational development and

[[Page 27200]]

associated infrastructure, ORV activity, dispersed recreation, new road 
construction or widening, existing road maintenance, new energy 
projects or expansion of existing energy projects, existing energy 
corridor maintenance, fuels management projects such as prescribed 
burning, and post-wildfire rehabilitation activities using plant 
species that may compete with L. papilliferum or not adequately address 
habitat requirements for insect pollinators. These activities could 
result in the replacement or fragmentation of sagebrush-steppe habitat 
through the degradation or loss of native shrubs, grasses, and forbs in 
a manner that promotes increased wildfire frequency and intensity, and 
an increase of cover of invasive, nonnative plant species that would 
compete for soil matrix components and moisture necessary to support 
the growth and reproduction of L. papilliferum.
    (3) Actions that would significantly reduce pollination or seed set 
(reproduction). Such activities could include, but are not limited to: 
Residential or recreational development and associated infrastructure, 
use of pesticides, inappropriately-managed livestock use, mowing, 
fuels-management projects such as prescribed burning, and post-wildfire 
rehabilitation activities using plant species that may compete with 
Lepidium papilliferum. These activities could prevent reproduction by 
removal or destruction of reproductive plant parts and could impact the 
habitat needs of generalist insect pollinators through habitat 
degradation and fragmentation, reducing the availability of insect 
pollinators for L. papilliferum reproduction.
    We consider all of the units proposed as critical habitat to 
contain the physical and biological features essential to the 
conservation of Lepidium papilliferum. All units are within the 
historical geographic range of the species and are currently occupied 
by L. papilliferum. To ensure that their actions do not jeopardize the 
continued existence of L. papilliferum, Federal agencies already 
consult with us on activities in areas currently occupied by the plant 
species, or in unoccupied areas if the species may be affected by the 
action.

Exemptions

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

    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an integrated natural resources management plan (INRMP) by 
November 17, 2001. An INRMP integrates implementation of the military 
mission of the installation with stewardship of the natural resources 
found on the base. Each INRMP includes:
     An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
     A statement of goals and priorities;
     A detailed description of management actions to be 
implemented to provide for these ecological needs; and
     A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and 
applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136, 117 Stat. 1392) amended the Act to limit areas eligible for 
designation as critical habitat. Specifically, section 4(a)(3)(B)(i) of 
the Act (16 U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary 
shall not designate as critical habitat any lands or other geographical 
areas owned or controlled by the Department of Defense (DOD), or 
designated for its use, that are subject to an integrated natural 
resources management plan prepared under section 101 of the Sikes Act 
(16 U.S.C. 670a), if the Secretary determines in writing that such plan 
provides a benefit to the species for which critical habitat is 
proposed for designation.''
    We consult with the military on the development and implementation 
of INRMPs for installations with listed species. We analyzed INRMPs 
developed by military installations located within the range of the 
proposed critical habitat designation for Lepidium papilliferum to 
determine if they are exempt under section 4(a)(3)(B)(i) of the Act.

Approved INRMPs

    Military activities within the range of Lepidium papilliferum 
include ordnance-impact areas, training activities, and military 
development. Military-training activities occur at, or near, four EOs: 
Three at the OTA on the Snake River Plain, and a portion of one EO at 
the Juniper Butte Range on the Owyhee Plateau. INRMPs have been 
developed and implemented for both the Juniper Butte Range and the OTA. 
The INRMPs provide management direction and conservation measures to 
address or eliminate the effects from military-training exercises on L. 
papilliferum and its habitat. Both the Idaho Army National Guard 
(Quinney 2008; ICDC 2008, p. 21) and the U.S. Air Force (CH2MHill 
2008a, pp. 1, 17) conduct annual monitoring to ensure impacts to the 
species due to training activities are either avoided or minimized.

Idaho Army National Guard--Gowen Field/Orchard Training Area

    The Idaho Army National Guard's Gowen Field/Orchard Training Area 
(OTA) on the Snake River Plain has an INRMP in place that provides a 
conservation benefit for Lepidium papilliferum. This INRMP has been in 
place for this military training facility since 1997. The OTA contains 
7,213 ac (2,919 ha) of occupied L. papilliferum habitat, 7,163 ac 
(2,899 ha) of which represents nearly 60 percent of the highest quality 
occupied L. papilliferum habitat in the Snake River Plain region. The 
continuing high quality of this habitat suggests the conservation 
measures are effective in maintaining generally-intact, native-plant 
vegetation and limiting anthropogenic disturbances on the OTA (Sullivan 
and Nations 2009, p. 91).
    The INRMP for the OTA provides a framework for managing natural 
resources. Conservation measures included in the INRMP avoid or 
minimize impacts on Lepidium papilliferum, slickspot microsites, and 
sagebrush-steppe habitat while allowing for the continued 
implementation of the Idaho Army National Guard's mission. These 
measures include management actions such as restricting off-road 
motorized vehicle use, intensive wildfire suppression efforts, and the 
restriction of ground-operated military training to areas where the 
plants are not found. For example, the INRMP includes objectives for 
maintaining and improving L. papilliferum habitat and restoring areas 
damaged by wildfire. The plan specifies that the OTA will use native 
species and broadcast seeding, collecting, and planting small amounts 
of native seed not commercially available, and will monitor the success 
of seeding efforts (IDARNG 2004, pp. 72-73). Since 1991, the OTA, using 
historical records, has restored several areas using native seed and 
vegetation that was present prior to past wildfires. The Idaho Army 
National Guard continues to use restoration methods that avoid or 
minimize impacts to L.

[[Page 27201]]

papilliferum or its habitat, with an emphasis on maintaining 
representation of species that were present in presettlement times 
(IDARNG 2004, p. 73). Since 1987, the Idaho Army National Guard has 
demonstrated that efforts to suppress wildfire and the use of native 
species with minimal ground-disturbing activities are effective in 
reducing the wildfire threat, as well as in reducing rates of spread of 
nonnative, invasive species associated with wildfire management 
activities (IDARNG 2004, p. 73). In 2008, the Idaho Army National Guard 
also initiated maintenance on a series of identified fuel breaks on the 
OTA. These fuel breaks are designed to act as barriers to prevent fires 
that might be ignited by military training activities from spreading 
into adjacent L. papilliferum habitat (U.S. BLM 2008a, p. 20).
    Based on the above considerations, and in accordance with section 
4(a)(3)(B)(i) of the Act, we have determined that the identified lands 
are subject to the Idaho Army National Guard's OTA INRMP and that 
conservation efforts identified in the INRMP are being actively 
implemented, are effective, and will provide a benefit to Lepidium 
papilliferum occurring in habitats within or adjacent to the OTA. 
Therefore, lands within this installation are exempt from critical 
habitat designation under section 4(a)(3)(B)(i) of the Act. We are not 
including approximately 4,664 ha (11,525 ac) of habitat in this 
proposed critical habitat designation because of this exemption. The 
acreage exempted appears to be greater than the occupied habitat 
because the occupied habitat is based purely on EO acreage, and does 
not include the surrounding sagebrush-steppe habitat that would be 
included in critical habitat to provide for sufficient pollinator 
populations and protection of the L. papilliferum populations from 
other impacts, such as fire or recreational use.

Mountain Home Air Force Base--Juniper Butte Range

    The U.S. Air Force, Mountain Home Air Force Base, which includes 
the Juniper Butte Range in the Owyhee Plateau region, has an INRMP that 
has been in place for this military training facility since 2004. The 
U.S. Air Force manages 810 ha (2,030 ac) of occupied Lepidium 
papilliferum habitat within the Juniper Butte Range. Conservation 
measures and implementation actions for L. papilliferum include 
reseeding disturbed areas with native vegetation, eradicating noxious 
weeds prior to their spreading, cleaning vehicles and equipment to 
remove nonnative invasive plants, avoiding pesticide use within 8 m (25 
ft) of slickspots, and delaying livestock turnout onto the range if 
slickspot microsites are saturated. The INRMP contains specific 
measures developed to minimize the impacts from military training at 
the local level, or general measures designed to improve the ecological 
condition of native, sagebrush-steppe vegetation at a landscape scale, 
inclusive of areas supporting L. papilliferum, while allowing for the 
continued implementation of the Air Force mission. For example, the 
U.S. Air Force has a number of ongoing efforts to address wildfire 
prevention and suppression on the entire 4,611 ha (11,393 ac) Juniper 
Butte Range. Prevention measures that are implemented on the Juniper 
Butte Range include reducing standing fuels and weeds, planting fire-
resistant vegetation in areas with a higher potential for ignition 
sources, such as along roads, and using wildfire indices to determine 
when to restrict military activities when the wildfire hazard rating is 
extreme (U.S. Air Force 2004, pp. 6-55). As a result of implementing 
these measures, the threat from wildfire to Lepidium papilliferum 
associated with U.S. Air Force training activities is expected to be 
effective in reducing fires within the Juniper Butte Range.
    For both specific and general conservation measures, improvements 
to habitat condition since the implementation of the 2004 INRMP 
measures 6 years ago have been difficult to detect with available 
monitoring data. Lepidium papilliferum is an annual or biennial plant 
that responds to spring precipitation and has seeds that remain viable 
for up to 12 years in the seed bank. Thus, detecting the effectiveness 
of specific conservation measures using the 7 years of available U.S. 
Air Force monitoring data is difficult, as this is too limited a time 
series to be able to detect any changes for a species with such great 
inter-annual variability and seeds that may still be viable yet lie 
dormant in the seed bank. We expect that decades will be necessary to 
determine the effectiveness of general conservation measures designed 
to improve native, sagebrush-steppe ecological condition, although 
ongoing research may provide information and techniques to accelerate 
these types of recovery efforts.
    Based on the above considerations, and in accordance with section 
4(a)(3)(B)(i) of the Act, we have determined that the identified lands 
are subject to the U.S. Air Force INRMP for the Juniper Butte Range 
(Mountain Home Air Force Base) and that conservation efforts identified 
in the INRMP are being implemented, are likely effective, and will 
provide a conservation benefit to Lepidium papilliferum occurring in 
habitats within or adjacent to the Juniper Butte Range. Therefore, 
lands within this installation are exempt from critical habitat 
designation under section 4(a)(3)(B)(i) of the Act. We are not 
including 4,611 ha (11,393 ac) of habitat in this proposed critical 
habitat designation because of this exemption.
    Table 2 below provides approximate areas of lands that meet the 
definition of critical habitat but are exempt from designation under 
section 4(a)(3)(B)(i) of the Act.

                                  Table 2--Exemptions by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
                                                                Areas meeting the
                                      Basis for exclusion/    definition of critical       Areas exempted in
     Unit           Specific area           exemption          habitat in hectares         hectares  (acres)
                                                                     (acres)
----------------------------------------------------------------------------------------------------------------
2.............  IDARNG--OTA.........  4(a)(3)(B)(i).......  4,664 ha (11,525 ac).....  4,664 ha (11,525 ac)
4.............  MHAFB--JBR..........  4(a)(3)(B)(i).......  4,611 ha (11,393 ac).....  4,611 ha (11,393 ac)
----------------------------------------------------------------------------------------------------------------

Exclusions

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

    Section 4(b)(2) of the Act states that the Secretary must designate 
and revise critical habitat on the basis of the best available 
scientific data after taking into consideration the economic impact, 
national security impact, and any other relevant impact of specifying 
any particular area as critical habitat. The Secretary may exclude an 
area from critical habitat if he determines that the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat, unless he determines, based on the best scientific 
data available, that the failure to

[[Page 27202]]

designate such area as critical habitat will result in the extinction 
of the species. In making that determination, the legislative history 
is clear that the Secretary has broad discretion regarding which 
factor(s) to use and how much weight to give to any factor.
    Under section 4(b)(2) of the Act, we consider all relevant impacts, 
including economic impacts. In compliance with section 4(b)(2) of the 
Act, we are preparing an analysis of the economic impacts of this 
proposed designation of critical habitat. We will announce the 
availability of the draft economic analysis as soon as it is completed, 
at which time we will seek public review and comment. At that time, 
copies of the draft economic analysis will be available for downloading 
from the Internet at http://www.regulations.gov, or from the Idaho Fish 
and Wildlife Office directly (see FOR FURTHER INFORMATION CONTACT). 
During the development of the final designation, we will consider 
economic impacts, public comments, and other new information. Certain 
areas may be excluded from the final critical habitat designation under 
section 4(b)(2) of the Act and or implementing regulations at 50 CFR 
424.19.
    At this time, we are not proposing any specific exclusions of areas 
from critical habitat under section 4(b)(2) of the Act for Lepidium 
papilliferum. However, we are considering applying section 4(b)(2) to 
currently occupied private lands, which represent less than 5 percent 
of the proposed designation. During the comment period for the proposed 
designation of critical habitat, we will consider any available 
information about areas covered by conservation or management plans 
that we should consider for exclusion from the designation under 
section 4(b)(2) of the Act, including whether the benefits of exclusion 
would outweigh the benefits of their inclusion and whether exclusion 
would or would not result in the extinction of the species. We consider 
whether landowners have developed any conservation plans for the area, 
as well as any social or other impacts that might occur because of the 
designation. For example, we consider whether there are conservation 
partnerships that would be encouraged or discouraged by designation of, 
or exclusion from, critical habitat in an area. Many non-Federal 
landowners derive satisfaction in contributing to endangered species 
recovery. However, private landowners are often wary of the possible 
consequences of encouraging endangered species conservation on their 
property, and of regulatory action by the Federal Government under the 
Act. Social research has demonstrated that for many private landowners, 
government regulation under the Act is perceived as a loss of 
individual freedoms, regardless of whether that regulation may in fact 
result in any actual impact to the landowner (Brook et al. 2003, pp. 
1644-1648; Conley et al. 2007, p. 141). The magnitude of this negative 
outcome is greatly amplified in situations where active management 
measures (such as reintroduction, fire management, and the control of 
invasive species) are necessary for species conservation (Bean 2002, 
pp. 3-4). Furthermore, in a recent study of private landowners who have 
experience with regulation under the Act, only 2 percent of respondents 
believed the Federal Government rewards private landowners for good 
management of their lands and resources (Conley et al. 2007, pp. 141, 
144). Therefore, we will carefully weigh the potential benefits of any 
designation on private lands.
    We consider the benefits of including private lands as designated 
critical habitat in this case to be minimal since monitoring has been 
limited, data is generally lacking on the overall status of Lepidium 
papilliferum on privately-owned lands, and any activities that would 
trigger the benefits of consultation on critical habitat under a 
Federal nexus are highly unlikely. Additionally, most of the current 
and ongoing interagency conservation efforts are focused on management 
of State, county, and Federal lands, where approximately 95 percent of 
the occupied habitat occurs. As discussed previously, Federal 
activities that may affect L. papilliferum or its designated critical 
habitat require section 7 consultation under the Act; this also 
includes activities on State, Tribal, local, or private lands requiring 
a Federal permit. We believe that in some cases designation can 
negatively affect the potential working relationships and conservation 
partnerships formed with private landowners to provide conservation 
benefits. As described above, private landowners are often wary of the 
possible consequences of encouraging endangered species conservation on 
their property, and of regulatory action by the Federal Government 
under the Act. Therefore, we believe it is possible that the benefit of 
excluding areas on private lands may outweigh the benefits of including 
those areas in critical habitat. The Secretary can exclude lands when 
there is no benefit of inclusion or if that benefit is negligible, and 
if the designation may actually harm the species (i.e., there are 
benefits to the species from exclusion). We are specifically asking for 
public comment on the benefits of exclusion versus inclusion of private 
lands in the designation of critical habitat, and will determine 
whether any such lands may merit exclusion from the designation under 
section 4(b)(2) of the Act. Furthermore, we will evaluate all comments 
provided during the public comment period of this proposed rule on 
whether the benefits of excluding any particular area from critical 
habitat outweigh the benefits of including that area in critical 
habitat under section 4(b)(2) of the Act.
    We have determined that there are currently no habitat conservation 
plans (HCPs) in the proposed critical habitat area, and the proposed 
designation does not include any Tribal lands or trust resources. We 
anticipate no impact to Tribal lands, partnerships, or HCPs from this 
proposed critical habitat designation.

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of peer review is to ensure 
that our critical habitat designation is based on scientifically sound 
data, assumptions, and analyses. We will send peer reviewers copies of 
this proposed rule immediately following publication in the Federal 
Register. We will invite these peer reviewers to comment, during the 
public comment period, on the specific assumptions and conclusions 
regarding the proposed designation of critical habitat.
    We will consider all comments and information received during the 
60-day comment period on this proposed rule as we prepare our final 
rulemaking. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if requested. Requests must be received within 45 days after the date 
of publication of this proposed rule in the Federal Register. Such 
requests must be made in writing and be addressed to the State 
Supervisor (see FOR FURTHER INFORMATION CONTACT section). We will 
schedule public hearings on this proposal, if any are requested, and 
announce the dates, times, and places of those hearings in the Federal 
Register and local newspapers at least 15 days prior to the first 
hearing.

[[Page 27203]]

Required Determinations

Regulatory Planning and Review--Executive Order 12866

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant under Executive Order 12866 (E.O. 12866). OMB 
bases its determination upon the following four criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (d) Whether the rule raises novel legal or policy issues.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA); 5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996, whenever an agency must publish a notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (small businesses, 
small organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of the agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. The SBREFA amended RFA to require 
Federal agencies to provide a certification statement of the factual 
basis for certifying that the rule will not have a significant economic 
impact on a substantial number of small entities.
    At this time, we lack the specific information necessary to provide 
an adequate factual basis for the required RFA finding. On the basis of 
the development of our proposal, we have identified certain sectors and 
activities that may potentially be affected by a designation of 
critical habitat for L. papilliferum. These sectors include ranching, 
recreation, residential and commercial development, as well as the 
associated infrastructure such as roads, storm water drainage, bridge 
and culvert maintenance, transmission lines and right of ways, natural 
gas transmission lines, and water lines. We recognize not all of these 
sectors qualify as small business entities. However, recognizing these 
sectors and activities may be affected by this designation, we are 
collecting information and initiating an analysis to determine (1) 
which of these sectors or activities are, or involve, small business 
entities; and (2) to what extent the effects are related to L. 
papilliferum being listed as threatened under the Act (baseline 
effects), or whether the effects are attributable to the designation of 
critical habitat (incremental effects). We believe the potential 
incremental effects resulting from a designation will be small. We are 
requesting any specific economic information related to small business 
entities that may be affected by this designation and how the 
designation may impact their business. Therefore, we defer the initial 
RFA finding until completion of a draft economic analysis prepared 
under section 4(b)(2) of the Act and E.O. 12866.
    The draft economic analysis will provide the required factual basis 
for the RFA finding. Upon completion of the draft economic analysis, we 
will announce its availability in the Federal Register and reopen the 
public comment period for the proposed designation. We will include 
with this announcement, as appropriate, an initial regulatory 
flexibility analysis or a certification that the rule will not have a 
significant economic impact on a substantial number of small entities 
accompanied by the factual basis for that determination. We have 
concluded that deferring the RFA finding until completion of the draft 
economic analysis is necessary to meet the purposes and requirements of 
the RFA. Deferring the RFA finding in this manner will ensure that we 
make a sufficiently-informed determination based on adequate economic 
information and provide the necessary opportunity for public comment.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or Tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or Tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and Tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or Tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally-
binding duty on non-Federal-Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (b) We do not believe this rule will significantly or uniquely 
affect small governments. The lands being proposed for critical habitat 
for Lepidium papilliferum are primarily Federal BLM lands, with a small 
area of Federal BOR lands and some lesser areas owned by the County or 
State of Idaho. Therefore, a Small Government Agency Plan is not 
required. However, we will further evaluate this issue as we conduct 
our economic analysis, and review and revise this assessment if 
appropriate.

[[Page 27204]]

Takings

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for Lepidium papilliferum in a takings implications assessment. 
The takings implications assessment concludes this proposed designation 
of critical habitat for Lepidium papilliferum would not pose 
significant takings implications for lands within or affected by the 
designation.

Federalism

    In accordance with E.O. 13132 (Federalism), this proposed rule does 
not have significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior and Department of 
Commerce policy, we requested information from, and coordinated 
development of, this proposed critical habitat designation with 
appropriate State resource agencies in Idaho. If adopted, the 
designation may have some benefit to these governments because the 
areas that contain the features essential to the conservation of the 
species are more clearly defined, and the physical and biological 
features of the habitat necessary to the conservation of the species 
are specifically identified. This information does not alter where and 
what Federally-sponsored activities may occur. However, it may assist 
local governments in long-range planning (rather than having them wait 
for case-by-case section 7 consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform

    In accordance with E.O. 12988 (Civil Justice Reform), the Office of 
the Solicitor has determined this proposed rule does not unduly burden 
the judicial system and that it meets the requirements of sections 3(a) 
and 3(b)(2) of the Order. We have proposed designating critical habitat 
in accordance with the provisions of the Act. This proposed rule uses 
standard property descriptions and identifies the physical and 
biological features within the designated areas to assist the public in 
understanding the habitat needs of Lepidium papilliferum.

Paperwork Reduction Act of 1995

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently-valid OMB control number.

National Environmental Policy Act (NEPA)

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses as defined by NEPA (42 U.S.C. 4321 et seq.) in 
connection with designating critical habitat under the Act. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This position was 
upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas 
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied, 516 U.S. 
1042 (1996)).

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

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), E.O. 13175, the Department of the Interior's 
manual at 512 DM 2, and the Native American Policy of the U.S Fish and 
Wildlife Service, we readily acknowledge our responsibility to 
communicate meaningfully with recognized Federal Tribes on a 
government-to-government basis. In accordance with Secretarial Order 
3206 of June 5, 1997 ``American Indian Tribal Rights, Federal-Tribal 
Trust Responsibilities, and the Endangered Species Act,'' we readily 
acknowledge our responsibilities to work directly with Tribes in 
developing programs for healthy ecosystems, to acknowledge that Tribal 
lands are not subject to the same controls as Federal public lands, to 
remain sensitive to Indian culture, and to make information available 
to Tribes.
    We have determined there are no Tribal lands occupied at the time 
of listing that contain the features essential for the conservation, 
and no Tribal lands that are essential for the conservation, of 
Lepidium papilliferum. Therefore, we have not proposed designation of 
critical habitat for L. papilliferum on Tribal lands.

Energy Supply, Distribution, or Use

    On May 18, 2001, the President issued Executive Order 13211--
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use--governing regulations that significantly affect 
energy supply, distribution, and use. E.O. 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
Based on analysis of areas included in this proposal, we have 
determined that this proposed rule to designate critical habitat for 
Lepidium papilliferum is not expected to significantly affect energy 
supplies, distribution, or use. Therefore, this action is not a 
significant energy action, and a Statement of Energy Effects is not 
required. However, we will further evaluate this issue as we conduct 
our economic analysis, and review and revise this assessment as 
warranted.

References Cited

    A complete list of references cited is available on the Internet at 
http://www.regulations.gov and upon request from the Idaho Fish and 
Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

[[Page 27205]]

Authors

    The primary authors of this package are the staff members of the 
Idaho Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. In Sec.  17.12(h), revise the entry for ``Lepidium 
papilliferum'' under ``FLOWERING PLANTS'' in the List of Endangered and 
Threatened Plants to read as follows:


Sec.  17.12  Endangered and threatened plants

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species
--------------------------------------------------------    Historic range           Family            Status      When listed    Critical     Special
         Scientific name                Common name                                                                               habitat       rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
         Flowering Plants
 
                                                                      * * * * * * *
Lepidium papilliferum............  slickspot             U.S.A. (ID)........  Brassicaceae.......  T                       765     17.96(a)           NA
                                    peppergrass.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. In Sec.  17.96, amend paragraph (a) by adding an entry for 
``Lepidium papilliferum (slickspot peppergrass)'' in alphabetical order 
under Family Brassicaceae to read as follows:


Sec.  17.96  Critical habitat--plants.

    (a) Flowering plants.
* * * * *

Family Brassicaceae: Lepidium papilliferum (slickspot peppergrass)

    (1) Critical habitat units are depicted for Payette, Ada, Elmore, 
and Owyhee Counties, Idaho, on the maps below.
    (2) The physical and biological features of critical habitat for 
the Lepidium papilliferum are:
    (i) Ecologically-functional microsites or ``slickspots'' that are 
characterized by:
    (A) A high sodium and clay content, and a three-layer soil 
horizonation sequence, which allows for successful seed germination, 
seedling growth, and maintenance of the seed bank. The surface horizon 
consists of a thin, silty vesicular, pored (small cavity) layer that 
forms a physical crust (the silt layer). The subsoil horizon is a 
restrictive clay layer with an abruptic (referring to an abrupt change 
in texture) boundary with the surface layer, that is natric or natric-
like in properties (a type of argillic (clay-based) horizon with 
distinct structural and chemical features) (the restrictive layer). The 
second argillic subsoil layer (that is less distinct than the upper 
argillic horizon) retains moisture through part of the year (the moist 
clay layer); and
    (B) Sparse vegetation with low to moderate introduced, invasive, 
nonnative plant species cover.
    (ii) Relatively-intact, native Artemisia tridentata ssp. 
wyomingensis (Wyoming big sagebrush) vegetation assemblages, 
represented by native bunchgrasses, shrubs, and forbs, within 250 m 
(820 ft) of Lepidium papilliferum element occurrences to protect 
slickspots and Lepidium papilliferum from disturbance from wildfire, 
slow the invasion of slickspots by nonnative species and native 
harvester ants, and provide the habitats needed by L. papilliferum's 
pollinators.
    (iii) A diversity of native plants whose blooming times overlap to 
provide pollinator species with flowers for foraging throughout the 
seasons and to provide nesting and egg-laying sites; appropriate 
nesting materials; and sheltered, undisturbed places for hibernation 
and overwintering of pollinator species. In order for genetic exchange 
of Lepidium papilliferum to occur, pollinators must be able to move 
freely between slickspots. Alternative pollen and nectar sources (other 
plant species within the surrounding sagebrush vegetation) are needed 
to support pollinators during times when Lepidium papilliferum is not 
flowering, when distances between slickspots are large, and in years 
when L. papilliferum is not a prolific flowerer.
    (iv) Sufficient pollinators for successful fruit and seed 
production, particularly pollinator species of the sphecid and vespid 
wasp families, species of the bombyliid and tachnid fly families, 
honeybees, and halictid bee species, most of which are solitary insects 
that nest outside of slickspots in the surrounding sagebrush-steppe 
vegetation, both in the ground and within the vegetation.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
the effective date of this rule.
    (4) Critical habitat map units. Data layers defining map units were 
created using a quarter-quarter section shapefile, based on the Public 
Land Survey System, in a Geographic Information System.
    (5) Index map of critical habitat units for Lepidium papilliferum 
(slickspot peppergrass) follows:
BILLING CODE 4310-55-P

[[Page 27206]]

[GRAPHIC] [TIFF OMITTED] TP10MY11.000

    (6) Unit 1: Payette County, Idaho.
    (i) [Reserved for unit description.]
    (ii) Map of Unit 1 follows:

[[Page 27207]]

[GRAPHIC] [TIFF OMITTED] TP10MY11.001

    (7) Unit 2: Ada County, Idaho.
    (i) Subunit 2a [Reserved for subunit description.]
    (ii) Map of Unit 2, Subunit a, follows:

[[Page 27208]]

[GRAPHIC] [TIFF OMITTED] TP10MY11.002

    (iii) Subunit 2b. [Reserved for subunit description.]
    (iv) Map of Unit 2, Subunit b, follows:

[[Page 27209]]

[GRAPHIC] [TIFF OMITTED] TP10MY11.003

    (v) Subunit 2c. [Reserved for subunit description.]
    (vi) Map of Unit 2, Subunit c, follows:

[[Page 27210]]

[GRAPHIC] [TIFF OMITTED] TP10MY11.004

    (vii) Subunit 2d. [Reserved for subunit description.]
    (viii) Map of Unit 2, Subunit d, follows:

[[Page 27211]]

[GRAPHIC] [TIFF OMITTED] TP10MY11.005

    (8) Unit 3: Elmore County, Idaho.
    (i) Subunit 3a. [Reserved for subunit description.]
    (ii) Map of Unit 3, Subunit a, follows:

[[Page 27212]]

[GRAPHIC] [TIFF OMITTED] TP10MY11.006

    (iii) Subunit 3b. [Reserved for subunit description.]
    (iv) Map of Unit 3, Subunit b, follows:

[[Page 27213]]

[GRAPHIC] [TIFF OMITTED] TP10MY11.007

    (v) Subunit 3c. [Reserved for subunit description.]
    (vi) Map of Unit 3, Subunit c, follows:

[[Page 27214]]

[GRAPHIC] [TIFF OMITTED] TP10MY11.008

    (9) Unit 4: Owyhee County, Idaho.
    (i) [Reserved for unit description.]
    (ii) Map of Unit 4 follows:

[[Page 27215]]

[GRAPHIC] [TIFF OMITTED] TP10MY11.009

* * * * *

    Dated: April 19, 2011.
Will Shafroth,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-10753 Filed 5-9-11; 8:45 am]
BILLING CODE 4310-55-C