[Federal Register Volume 78, Number 187 (Thursday, September 26, 2013)]
[Proposed Rules]
[Pages 59430-59474]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-23189]



[[Page 59429]]

Vol. 78

Thursday,

No. 187

September 26, 2013

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; Revised Designation of 
Critical Habitat for the Contiguous U.S. Distinct Population Segment of 
the Canada Lynx and Revised Distinct Population Segment Boundary; 
Proposed Rule

  Federal Register / Vol. 78 , No. 187 / Thursday, September 26, 2013 / 
Proposed Rules  

[[Page 59430]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R6-ES-2013-0101; 4500030114]
RIN 1018-AZ77


Endangered and Threatened Wildlife and Plants; Revised 
Designation of Critical Habitat for the Contiguous U.S. Distinct 
Population Segment of the Canada Lynx and Revised Distinct Population 
Segment Boundary

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 
revised critical habitat for the contiguous U.S. distinct population 
segment (DPS) of the Canada lynx under the Endangered Species Act of 
1973, as amended, and to revise the boundary of the Canada lynx DPS. 
These proposed revisions fulfill our obligations under two settlement 
agreements. The revised critical habitat proposed rule also addresses 
issues raised by two courts in 2010. If we finalize this rule as 
proposed, it would extend the Endangered Species Act's protections to 
the Canada lynx wherever it occurs in the contiguous United States, 
including New Mexico, and it would revise this species' critical 
habitat. The effect of this regulation is to conserve the Canada lynx 
and its habitats in the contiguous United States under the Endangered 
Species Act.

DATES: We will accept comments received or postmarked on or before 
December 26, 2013. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES section, below) must be received by 
11:59 p.m. Eastern Time on the closing date. Public Hearing: A public 
hearing will be held on this proposed rule on Monday, November 25, 
2013, from 6:00 p.m. to 9:00 p.m. (Mountain Time). The formal public 
hearing will be preceded by an open house and general information 
meeting from 2:00 p.m. to 5:00 p.m.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R6-ES-2013-0101, 
which is the docket number for this rulemaking. You may submit a 
comment by clicking on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R6-ES-2013-0101; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We request that you send comments only by the methods described 
above. 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).
    Public Hearing: A public hearing will be held on this proposed rule 
on Monday, November 25, 2013, from 6:00 p.m. to 9:00 p.m. (Mountain 
Time) at the Red Lion Colonial Hotel, 2301 Colonial Drive, Helena, 
Montana, 59601. The formal public hearing will be preceded by an open 
house and general information meeting from 2:00 p.m. to 5:00 p.m.
    Public Meeting: An informational public meeting will be held on 
Monday, November 4, 2013, from 7:00 p.m. to 9:00 p.m. at the George W. 
Stearns High School auditorium at 199 State Street, Millinocket, Maine 
04462.
    People needing reasonable accommodations in order to attend and 
participate in the public hearing or meeting should contact Jodi Bush, 
Montana Fish and Wildlife Office, as soon as possible (see FOR FURTHER 
INFORMATION CONTACT).
    The coordinates or plot points or both from which the maps are 
generated are included in the administrative record for this critical 
habitat designation and are available at http://www.fws.gov/montanafieldoffice/, http://www.regulations.gov at Docket No. FWS-R6-
ES-2013-0101, and at the Montana Ecological Services Field Office (see 
FOR FURTHER INFORMATION CONTACT). Any additional tools or supporting 
information that we may develop for this critical habitat designation 
will also be available at the Fish and Wildlife Service Web site and 
Field Office set out above, and may also be included in the preamble 
and/or at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Jodi Bush, Field Supervisor, U.S. Fish 
and Wildlife Service, Montana Ecological Services Field Office, 585 
Shepard Way, Suite 1, Helena, MT 59601; telephone 406-449-5225. If you 
use a telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Why we need to publish a rule. Under the Endangered Species Act 
(Act), any species that is determined to be threatened or endangered 
requires critical habitat to be designated, to the maximum extent 
prudent and determinable. Designations and revisions of critical 
habitat and revisions to definitions of listed entities can only be 
completed by issuing a rule. This is a proposed rule to revise the 
designation of critical habitat for the threatened contiguous United 
States (U.S.) distinct population segment (DPS) of the Canada lynx 
(Lynx canadensis) and to revise the DPS boundary to extend the 
protections of the Act to lynx everywhere they occur in the contiguous 
United States, including New Mexico. The lynx DPS was listed as 
threatened in 2000. We designated critical habitat for the lynx DPS in 
2006 and revised the designation in 2009. Also in 2009, we determined 
that adding lynx in New Mexico to the listing of the lynx DPS was 
warranted because lynx that were introduced into Colorado were 
regularly crossing the State border into New Mexico. In 2010, the U.S. 
District Courts in the Districts of Montana and Wyoming remanded the 
revised critical habitat designation to the Service. The Service agreed 
to submit to the Federal Register a proposed rule on the revised 
designation of critical habitat for the Canada lynx by September 1, 
2013. This date was extended to September 20, 2013 by stipulation. As 
part of the 2011 multidistrict litigation (MDL) agreement, we committed 
to propose adding lynx in New Mexico to the DPS by September 2013.
    This rule would revise the definition of the lynx DPS. We propose 
to rescind the existing boundary of the lynx DPS, which is based on 
State boundaries within the historic distribution of lynx, and replace 
it with a DPS definition that extends the protections of the Act to 
lynx wherever they occur in the contiguous United States. This revised 
boundary would include lynx that occur in New Mexico as a result of 
lynx introduction efforts in Colorado.
    This rule would revise the designation of critical habitat for the 
lynx DPS. In total, we propose to designate 41,547 square miles (mi\2\) 
(107,607 square kilometers (km\2\)) of critical habitat in five units 
in the States of Idaho, Maine, Minnesota, Montana, Washington, and 
Wyoming. We propose to redesignate those areas we designated in 2009 
along with additional areas in northern Maine and northwestern Wyoming 
(see details and list of counties under Proposed Revised Critical 
Habitat Designation, below). We propose to exclude from critical 
habitat Tribal lands and some State and private lands managed in

[[Page 59431]]

accordance with approved lynx conservation plans. If these exclusions 
are finalized, the area designated as critical habitat would be 39,632 
mi\2\ (102,647 km\2\), which would be 632 mi\2\ (1,637 km\2\)--1.6 
percent--larger than the area we designated in 2009.
    The basis for our revised critical habitat action. Section 4(b)(2) 
of the Act states that the Secretary shall designate and make revisions 
to critical habitat on the basis of the best available scientific data 
after taking into consideration the economic impact, national security 
impact, and any other relevant impact of specifying any particular area 
as critical habitat. The Secretary may exclude an area from critical 
habitat if she determines that the benefits of such exclusion outweigh 
the benefits of specifying such area as part of the critical habitat, 
unless she determines, based on the best scientific data available, 
that the failure to designate such area as critical habitat will result 
in the extinction of the species. We will consider excluding from the 
final designation (1) Tribal lands, (2) lands in Maine managed in 
accordance with the Natural Resources Conservation Service's Healthy 
Forest Reserve Program, (3) lands in Montana managed in accordance with 
the Montana Department of Natural Resources and Conservation (DNRC) 
Forested State Trust Lands Habitat Conservation Plan, and (4) lands in 
Washington managed in accordance with the Washington Department of 
Natural Resources (DNR) Lynx Habitat Management Plan for DNR-managed 
Lands.
    We will prepare an economic analysis. We prepared a final economic 
analysis to evaluate the potential economic impacts of our 2009 
critical habitat designation. To ensure that we adequately consider the 
economic impacts of the current proposed designation, we will prepare 
an economic analysis of this proposed designation and make it available 
for public comment.
    We will prepare a National Environmental Policy Act analysis. 
Because this rule proposes designation of critical habitat in States 
within the jurisdiction of the U.S. Court of Appeals for the Tenth 
Circuit, we will prepare an analysis in accordance with the National 
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.). We will update 
and revise our 2009 NEPA analysis based on the current proposed 
critical habitat designation and notify the public of the availability 
of the draft environmental assessment.
    We will seek peer review. We are seeking comments from independent 
specialists to ensure that our critical habitat designation is based on 
scientifically sound data, assumptions, and analyses. We have invited 
these peer reviewers to comment on our specific assumptions and 
conclusions in this revised critical habitat designation. Because we 
will consider all comments and information received during the comment 
period, our final determinations may differ from this proposal. In 
addition to public and peer-review comments received on this proposed 
rule, between the proposed and final rules, the Service will continue 
to evaluate (1) any new information that becomes available regarding 
the status and distribution of lynx in the contiguous United States, 
(2) any refinements of or improvements to lynx habitat mapping and/or 
modeling, particularly those efforts currently under way on National 
Forest lands, (3) new information regarding the potential effects of 
climate change on lynx and its habitats, (4) new information regarding 
the potential effects of forest management on lynx and its habitats, 
and (5) any other new information that was not considered previously to 
determine the relevance of such information in revising critical 
habitat for lynx. If necessary and appropriate, revisions to this 
proposed rule will be made to address such information.

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other concerned government agencies, the 
scientific community, industry, or any other interested party 
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 Act (16 U.S.C. 1531 et 
seq.) including whether there are threats to the species from human 
activity, the degree of which can be expected to increase due to the 
designation, and whether that increase in threat outweighs the benefit 
of designation such that the designation of critical habitat may not be 
prudent.
    (2) Specific information on:
    (a) The amount and distribution of lynx habitat in the contiguous 
United States;
    (b) What areas that were occupied at the time of listing and that 
contain features essential to the conservation of the DPS should be 
included in the designation and why;
    (c) Special management considerations or protection that may be 
needed in critical habitat areas we are proposing, including managing 
for the potential effects of climate change and changing forest 
management practices; and
    (d) What areas not occupied at the time of listing may be essential 
for the conservation of the DPS and why, including areas that remain 
unoccupied, such as the ``Kettle Range'' in Ferry County, Washington, 
and areas recently occupied, such as northern New Hampshire (in 
northern Coos County), northeastern Vermont (in northern Essex County), 
western Maine in Somerset, Franklin, and northern Oxford Counties, 
including portions of the White Mountain National Forest, and eastern 
Maine in northern Washington County.
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed revised critical 
habitat.
    (4) Comments or information that may assist in identifying or 
clarifying the primary constituent element.
    (5) Whether lands in the Southern Rocky Mountains of Colorado, 
northern New Mexico, and southern Wyoming (a) contain the physical and 
biological features essential for the conservation of the DPS, (b) 
contain these features in the quantities and spatial arrangements 
across landscapes necessary to support lynx populations over time, and 
(c) are essential to the conservation of the DPS, and the basis for why 
that might be so.
    (6) Whether lands in the Clearwater and Nez Perce National Forests 
in Idaho, the Bitterroot National Forest in Idaho and Montana, the 
Beaverhead-Deerlodge National Forest in Montana, and parts of the 
Helena and Lolo National Forests in Montana not currently proposed for 
designation (a) contain the physical and biological features essential 
for the conservation of the DPS, (b) contain these features in the 
quantities and spatial arrangements across landscapes necessary to 
support lynx populations over time, and (c) are essential to the 
conservation of the DPS, and the basis for why that might be so.
    (7) How the proposed boundaries of the revised critical habitat 
designation could be refined to more closely circumscribe the boreal 
forest landscapes essential to the conservation of lynx.
    (8) Information on the projected and reasonably likely impacts of 
climate change on lynx and proposed critical habitat.
    (9) Any probable economic, national security, or other relevant 
impacts of designating any area that may be

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included in the final designation; in particular, any impacts on small 
entities or families, and the benefits of including or excluding areas 
that exhibit these impacts.
    (10) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area. In 
particular, we are considering excluding all Tribal lands (Maine, 
Minnesota, and Montana) as well as lands in (a) Maine, managed in 
accordance with the Natural Resources Conservation Service's Healthy 
Forest Reserve Program (75 FR 6539, February 10, 2010), (b) Montana, 
managed in accordance with the Montana DNRC Forested State Trust Lands 
Habitat Conservation Plan (Montana DNRC and U.S. Fish and Wildlife 
Service 2010), and (c) Washington, managed in accordance with the 
Washington DNR Lynx Habitat Management Plan for DNR-managed Lands 
(Washington DNR 2006).
    (11) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in the ADDRESSES section.
    We will post your entire comment--including your personal 
identifying information--on http://www.regulations.gov. You may request 
at the top of your document that we withhold personal information such 
as your street address, phone number, or email address 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, Montana Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).

Previous Federal Actions

    For more information on previous Federal actions concerning the 
lynx, refer to the final listing rule published in the Federal Register 
on March 24, 2000 (65 FR 16052), the clarification of findings 
published in the Federal Register on July 3, 2003 (68 FR 40076), the 
Recovery Outline for the Contiguous United States DPS of Canada Lynx 
(Recovery Outline; U.S. Fish and Wildlife Service 2005, entire) the 
final rule designating critical habitat for lynx published in the 
Federal Register on November 9, 2006 (71 FR 66008), the final rule 
designating revised critical habitat published in the Federal Register 
on February 25, 2009 (74 FR 8616), and the 12-month finding on a 
petition to change the final listing of the DPS of the Canada lynx to 
include New Mexico published in the Federal Register on December 17, 
2009 (74 FR 66937). These documents and others addressing the status 
and conservation of lynx in the contiguous United States may be viewed 
and downloaded from the Service's Web site: http://ecos.fws.gov/speciesProfile/profile/speciesProfile.action?spcode=A073.
    On July 28, 2010, the U.S. District Court for the District of 
Montana remanded the 2009 revised critical habitat final rule to the 
Service because of flaws it perceived in the Service's rationale for 
its decision not to designate critical habitat in Colorado and in the 
Beaverhead-Deerlodge, Bitterroot, Clearwater, and Nez Perce National 
Forests in Idaho and Montana, and in portions of the Helena and Lolo 
National Forests in Montana not included in the designation. The court 
ordered the Service to determine whether areas occupied by lynx 
introduced into Colorado possess the physical and biological features 
essential to the conservation of the species, and consider the physical 
and biological features of occupied forests in Montana and Idaho to 
determine whether they should be designated as critical habitat. The 
court also ordered that the 2009 final critical habitat rule ``. . . 
shall remain in place until the Service issues a new final rule on lynx 
critical habitat, at which time the current, invalidated Final Rule (74 
FR 8616) will be superseded.''
    On September 10, 2010, because of its concerns with the Service's 
consideration of potential economic impacts to recreational 
snowmobiling interests in Washington State, the U.S. District Court for 
the District of Wyoming enjoined the final critical habitat rule ``. . 
. pending review and consideration by the Secretary of the full 
analysis of all the economic impacts, and a determination on the 
exclusion request of the Washington State Snowmobile Association . . 
.''. The Court enjoined the final rule only in regard to National 
Forest Lands in Washington State (Unit 4) ``. . . currently managed by 
. . .'' the Lynx Conservation Assessment and Strategy (LCAS).
    In this proposed rule, the Service addresses the issues raised by 
the courts, evaluates recent lynx research and data, considers 
additional areas for inclusion in critical habitat and other areas for 
exclusion under section 4(b)(2) of the Act, and proposes this revised 
critical habitat designation based on the best available scientific and 
commercial data.
    We also propose to rescind the existing State-boundary-based 
definition of the lynx DPS and replace it with a definition that 
extends the Act's protections to lynx ``where found'' in the contiguous 
United States. This change would ensure that lynx, which are known for 
their long-distance dispersal capability and tendency to occur in 
places well outside of typical habitats, receive the Act's protections 
wherever they occur in the contiguous United States, including (but not 
limited to) New Mexico.

Revised Definition of the Contiguous U.S. Distinct Population Segment 
of the Canada Lynx

    In the final listing rule for the Canada lynx, dated March 24, 
2000, the Service defined the contiguous U.S. DPS of lynx based on the 
international boundary with Canada and state boundaries of all 14 
States in the historic and current range of lynx (65 FR 16052; 74 FR 
66937). With that definition, New Mexico was not included in the listed 
area because no lynx occurred there, historic records did not show lynx 
in the State, and it lacked lynx habitat.
    On December 17, 2009, the Service published a 12-month ``warranted 
but precluded'' finding in the Federal Register on a petition to expand 
the listing of the Canada lynx to include the State of New Mexico (74 
FR 66937). That finding was made in response to an August 8, 2007, 
petition from a coalition of environmental groups and a 2008 settlement 
agreement. In the finding, the Service acknowledged that lynx 
associated with a lynx introduction effort in Colorado were regularly 
and frequently crossing the State boundary between Colorado and New 
Mexico and that, when they did, they were no longer protected by the 
Act because New Mexico was not included in the listed DPS area. In 
2011, as part of the MDL settlement agreement, the Service agreed to 
amend the listing rule to include New Mexico so that lynx entering New 
Mexico from Colorado would no longer lose Federal protection under the 
Act upon crossing the State boundary.

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    We have determined that lynx entering New Mexico, or any other 
States not currently included in the DPS as described in the 2000 final 
listing rule, should not lose their protection under the Act upon doing 
so. Therefore, with this rule, we propose to rescind the State-
boundary-based definition of the contiguous U.S. lynx DPS and replace 
it in regulation with a definition of the DPS that extends the Act's 
protections to lynx ``where found within contiguous United States.'' 
This change will ensure that all lynx in the contiguous United States 
receive protection under the Act regardless of where they may wander, 
including New Mexico.

Designation of Revised Critical Habitat for the Contiguous U.S. 
Distinct Population Segment of the Canada Lynx

Background

    It is our intent to discuss below only topics relevant to the 
revised designation of critical habitat in this proposed rule. For more 
information about the listing of the Canada lynx, please refer to the 
Previous Federal Actions section above.

Species Information

Taxonomy and Species Description
    The Canada lynx (order Carnivora; family Felidae) is a medium-sized 
cat with long legs and large, well-furred paws. Its long, black ear 
tufts and short, black-tipped tail distinguish the lynx from the 
similar but much more common bobcat (Lynx rufus). In winter, the lynx's 
fur is dense and has a grizzled appearance with grayish-brown mixed 
with buff or pale brown fur on the back, and grayish-white or buff-
white fur on the belly, legs and feet. In summer, its fur is more 
reddish to gray-brown (McCord and Cardoza 1982, p. 730). Lynx generally 
measure 30 to 35 inches (in) (75 to 90 centimeters (cm)) long and weigh 
14 to 31 pounds (lb) (6 to 14 kilograms (kg)) (Quinn and Parker 1987, 
Table 1; Moen et al. 2010a, Figure 2; Maine Department of Inland 
Fisheries and Wildlife 2012, unpublished data). The lynx's large feet 
and long legs make it highly adapted for traversing and hunting in deep 
snow. Lynx hybridization with bobcats has been documented in Minnesota, 
Maine, and New Brunswick (Schwartz et al. 2004, entire; Homyack et al. 
2008, entire), where male bobcats bred with female lynx to produce 
fertile offspring with lynx-like ear tufts, intermediate foot-size, and 
bobcat-like fur (Interagency Lynx Biology Team 2013, p. 35). Canada 
lynx are related to the somewhat larger Eurasian lynx (Lynx lynx), 
which occupies a similar boreal forest distribution in northern Europe, 
northern Russia, and central Asia (von Arx et al. 2001, pp. 8-10).
Distribution
    The Canada lynx is broadly distributed across northern North 
America from eastern Canada to Alaska (McCord and Cardoza 1982, p. 
729). It is strongly associated with the expansive, continuous boreal 
forests of those areas, and its range largely overlaps that of its 
primary prey, the snowshoe hare (Lepus americanus), also a boreal 
forest specialist (Bittner and Rongstad 1982, p. 146; Mowat et al. 
2000, pp. 268-269; Aubry et al. 2000, p. 375). The southern periphery 
of the boreal forest extends into parts of the northern contiguous 
United States, where it transitions to the Acadian forest in the 
Northeast (Seymour and Hunter 1992, pp. 1, 3), deciduous temperate 
forest in the Great Lakes regions, and subalpine forest in the Rocky 
Mountains and Cascade Mountains in the west (Agee 2000, pp. 40-41). In 
the contiguous United States, these transitional boreal forests become 
discontinuous and patchy, preventing both lynx and hares from broadly 
achieving densities similar to those of the northern boreal forests 
(Wolff 1980, pp. 123-128; Buehler and Keith 1982, pp. 24, 28; Koehler 
1990, p. 849; Koehler and Aubry 1994, p. 84; Aubry et al. 2000, pp. 
373-375, 382, 394). These forests eventually become too fragmented and 
isolated in the contiguous United States to support hares at the 
landscape densities and distributions necessary to support lynx home 
ranges (Interagency Lynx Biology Team 2013, p. 77) or lynx populations 
over time (see also Habitat and Biology, below).
    Snow conditions also determine the distribution of lynx (Ruggiero 
et al. 2000, pp. 445-449). Lynx are morphologically and physiologically 
adapted for hunting snowshoe hares and surviving in areas that have 
cold winters with deep, fluffy snow for extended periods. These 
adaptations provide lynx a competitive advantage over potential 
competitors, such as bobcats or coyotes (Canis latrans) (McCord and 
Cardoza 1982, p. 748; Buskirk et al. 2000b, pp. 86-95; Ruediger et al. 
2000, pp. 1-11; Ruggiero et al. 2000, pp. 445, 450). Bobcats and 
coyotes have a higher foot load (more weight per surface area of foot), 
which causes them to sink into the snow more than lynx. Therefore, 
bobcats and coyotes cannot hunt efficiently in fluffy or deep snow and 
are at a competitive disadvantage to lynx. Long-term snow conditions 
presumably limit the winter distribution of potential lynx competitors 
such as bobcats (McCord and Cardoza 1982, p. 748) or coyotes. These 
adaptations may also help lynx avoid predators such as mountain lions 
(Puma concolor; Squires and Laurion 2000, p. 346) and fisher (Martes 
pennanti; Vashon et al. 2012, p. 20), which also have higher foot-
loading, making them less efficient in deep, fluffy snow conditions 
(Krohn et al. 2005, entire).
    Lynx occurrence has been documented in 24 States in the northern 
contiguous United States (McKelvey et al. 2000a, entire). However, 
northern (Canadian and Alaskan) lynx populations are cyclic, with large 
population swings occurring over 8- to 11-year intervals and lagging a 
year or two behind snowshoe hare population cycles (Elton and 
Nicholoson 1942, entire; Mowat et al. 2000, pp. 281-294; Interagency 
Lynx Biology Team 2013, p. 33). When hares are abundant, northern lynx 
populations increase quickly and dramatically; when hare numbers 
subsequently decline, large numbers of lynx disperse widely in search 
of food (Slough and Mowat 1996, pp. 956-957; Mowat et al. 2000, pp. 
281-294). Historically, during and after these events, often referred 
to as lynx population ``irruptions,'' many lynx dispersed into the 
northern contiguous United States, often occurring temporarily in 
habitats that are incapable of supporting lynx populations over time 
(Thiel 1987, entire; McKelvey et al. 2000a, pp. 241-242, 253). Many 
records of lynx in the contiguous United States appear to be related to 
such events (McKelvey et al. 2000a, entire; see also Biology and 
Criteria Used To Identify Critical Habitat, below).
    Persistent, productive lynx populations (interbreeding lynx 
populations that have occupied particular areas consistently over time) 
in the contiguous United States occur in northern Maine, northeast 
Minnesota, northwest Montana/northeast Idaho, north-central Washington, 
and the Greater Yellowstone Area of southwest Montana and northwest 
Wyoming. Recently, lynx reproduction also has been documented in 
northern New Hampshire (in 2010 and 2011), northern Vermont (in 2009, 
20011, and 2012), eastern Maine (in 2010), and breeding is likely in 
some areas of western Maine (U.S. Fish and Wildlife Service 2013a, p. 
1). Whether the small breeding populations in New Hampshire and Vermont 
will persist is uncertain (Interagency Lynx Biology Team 2013, p. 23), 
and regional-scale modeling suggests that habitat and snow conditions 
there are likely insufficient

[[Page 59434]]

to support viable lynx populations over time (Hoving et al. 2005, pp. 
739, 749). Additionally, from 1999 to 2006, researchers captured 218 
lynx in Alaska and Canada and released them into high-elevation forests 
in western Colorado (Devineau et al. 2010, entire). Although 122 (56 
percent) of these lynx had died by June 2010 (Shenk 2010, pp. 1, 5), 
some subsequently established home ranges in Colorado and produced 
kittens in some years. Some also dispersed into northern New Mexico, 
northeastern Utah, and southern and western Wyoming, though no 
reproduction has been documented among any of the lynx that left 
Colorado. Other lynx from this introduced population traveled through 
Wyoming, Montana, and Idaho, and into southern Canada, and others 
traveled to Arizona, southern Utah, eastern Nevada, Kansas, Nebraska, 
Iowa, and South Dakota, with most of the latter animals ultimately 
dying in inhospitable habitats in those places (Devineau et al. 2010, 
p. 526, Figure 1).
    Populations that are composed of a number of discrete 
subpopulations, connected by dispersal, are called metapopulations 
(Hanski and Gilpin 1991, entire; McKelvey et al. 2000b, p. 25). Lynx 
populations in the contiguous United States appear to function as 
metapopulations (McKelvey et al. 2000b, pp. 21, 33; 65 FR 16052-16082; 
68 FR 40077-40099; 71 FR 66025-66035; 74 FR 8616-8641). They are 
generally small populations isolated from one another, though most are 
directly connected to larger lynx populations in Canada (McKelvey et 
al. 2000b, pp. 25-34; U.S Fish and Wildlife Service 2005, p. 2). Lynx 
disperse in both directions across the Canada-U.S. border (Aubry et al. 
2000, pp. 386-387; Moen et al. 2010b, pp. ii, 17, 19; Vashon et al. 
2012, p. 22), and this connectivity and interchange with lynx 
populations in Canada is thought to be essential to the maintenance and 
persistence of lynx populations in the contiguous United States 
(McKelvey et al. 2000b, p. 33; U.S Fish and Wildlife Service 2005, p. 
2; Interagency Lynx Biology Team 2013, p. 34, 42, 47, 54, 60, 65; 
Squires et al. 2013, p. 187).
    The small number of breeding lynx in northeastern Vermont, northern 
New Hampshire, and western and eastern Maine are indirectly connected 
to the Canadian population via extensive core habitat in northern 
Maine. The small lynx population in the Greater Yellowstone Area of 
southwest Montana and northwest Wyoming is indirectly connected to the 
Canadian population via the Northern Rocky Mountains lynx population in 
northwest Montana and northeast Idaho, and by dispersal corridors 
(habitat ``stepping stones'') between northwest Montana and the Greater 
Yellowstone Area. The Southern Rocky Mountains, particularly in 
Colorado, lack such habitat ``stepping stones'' from the north, and the 
subalpine forests there appear to be functionally disjunct from 
northern lynx populations and habitats (McKelvey et al. 2000a, p. 230; 
Interagency Lynx Biology Team 2013, pp. 50, 54). Although some of the 
lynx released into Colorado subsequently dispersed northward, these 
movements should be interpreted with caution and may not be 
representative of natural lynx dispersal behavior. During 
unprecedentedly large irruptions of lynx from Canada into the 
contiguous United States in the early 1960s and again in the early 
1970s, few lynx were documented in Colorado, despite large-scale survey 
efforts, and no viable populations of lynx occurred there prior to the 
State's introduction efforts (McKelvey et al. 2000a, pp. 231, 242).
Habitat
    Lynx are highly specialized predators of snowshoe hares and are 
dependent on landscapes with high-density snowshoe hare populations for 
survival and reproduction (McCord and Cardoza 1982, p. 744; Quinn and 
Parker 1987, pp. 684-685; Aubry et al. 2000, pp. 375-378). Estimates of 
landscape-scale hare densities needed to support lynx populations in 
the contiguous United States have ranged from 0.2 to 0.7 hares per acre 
(ac) (0.5 to 1.8 hares per hectare (ha)) (Ruggiero et al. 2000, pp. 
446-447; Steury and Murray 2004, p. 137; Moen et al. 2012, p. 352; 
Simons-Legaard et al. 2013, p. 574). Lynx and snowshoe hares are 
strongly associated with what is broadly described as boreal forest 
(Bittner and Rongstad 1982, p. 154; McCord and Cardoza 1982, p. 743; 
Quinn and Parker 1987, p. 684; Agee 2000, p. 39; Aubry et al. 2000, pp. 
378-382; Hodges 2000a, pp. 136-140 and 2000b, pp. 183-191; McKelvey et 
al. 2000a, pp. 211-232). The predominant vegetation of boreal forest is 
conifer trees, primarily species of spruce (Picea spp.) and fir (Abies 
spp.) (Elliot-Fisk 1988, pp. 34-35, 37-42). Lynx habitat can generally 
be described as moist boreal forests that have cold, snowy winters and 
a snowshoe hare prey base (Quinn and Parker 1987, pp. 684-685; Agee 
2000, pp. 39-47; Aubry et al. 2000, pp. 373-375; Buskirk et al. 2000a, 
pp. 397-405; Ruggiero et al. 2000, pp. 445-447). The boreal forests 
that lynx use in the contiguous United States are characterized by 
patchily-distributed moist forest types with high hare densities in a 
matrix of other habitats (e.g., hardwoods, dry forest, non-forest) with 
low landscape hare densities. In these areas, lynx incorporate the 
matrix habitat (non-boreal forest habitat elements) into their home 
ranges and use it for traveling between patches of boreal forest that 
support high hare densities where most lynx foraging occurs.
    In the contiguous United States, the boreal forest landscape is 
naturally patchy and transitional because it is the southern edge of 
the boreal forest range, where there also is increased prevalence of 
non-forested land uses (e.g., agriculture, development). This generally 
limits snowshoe hare populations in the contiguous United States from 
achieving landscape densities similar to those of the expansive 
northern boreal forest in Canada, where snowshoe hares are generally 
more abundant and more evenly distributed across the landscape (Wolff 
1980, pp. 123-128; Buehler and Keith 1982, pp. 24, 28; Koehler 1990, p. 
849; Koehler and Aubry 1994, p. 84). Consequently, important foraging 
habitat for lynx is often more limited and fragmented in the contiguous 
United States than it is in the northern boreal forests of Canada and 
Alaska (Berg and Inman 2010, p. 6) and overall habitat quality is 
lower. In some areas, patches of habitat containing snowshoe hares 
become so small and fragmented that the landscape cannot support lynx 
home ranges (Interagency Lynx Biology Team 2013, p. 77) or populations. 
Additionally, the presence of more snowshoe hare predators and 
competitors at southern latitudes may inhibit the potential for high-
density hare populations (Wolff 1980, p. 128). As a result, lynx 
generally occur at relatively low densities in the contiguous U.S. 
compared to the high lynx densities that occur in the northern boreal 
forest of Canada (Aubry et al. 2000, pp. 375, 393-394) or the densities 
of species such as the bobcat, which is a habitat and prey generalist.
    The boreal forest landscape is naturally dynamic. Forest stands 
within the landscape change as they undergo succession (transition from 
one stage in the development of a mature forest to another) after 
natural or human-caused disturbances such as fire, insect epidemics, 
wind, ice, disease, and forest management (Elliot-Fisk 1988, pp. 47-48; 
Agee 2000, pp. 47-69). As a result, lynx habitat within the boreal 
forest landscape is a shifting mosaic of habitat patches of variable 
and continually changing quality. That is, boreal forests contain 
stands of differing ages and conditions, some of which provide lynx

[[Page 59435]]

foraging or denning habitat (or may provide these in the future 
depending on patterns of disturbance and forest succession) and some of 
which serve as travel routes for lynx moving between foraging and 
denning habitats (McKelvey et al. 2000c, pp. 427-434; Hoving et al. 
2004, pp. 290-292).
    Because lynx population dynamics, survival, and reproduction are 
closely tied to snowshoe hare availability, snowshoe hare habitat is 
the primary component of lynx habitat. Lynx generally concentrate their 
foraging and hunting activities in areas where snowshoe hare densities 
are high (Koehler et al. 1979, p. 442; Ward and Krebs 1985, pp. 2821-
2823; Murray et al. 1994, p. 1450; O'Donoghue et al. 1997, pp. 155, 
159-160 and 1998, pp. 178-181; Simons-Legaard et al. 2013, pp. 573-
575). Snowshoe hares feed on conifers, deciduous trees, and shrubs 
(Hodges 2000b, pp. 181-183) and are most abundant in forests with dense 
understories that provide forage, cover to escape from predators, and 
protection during extreme weather (Wolfe et al. 1982, pp. 665-669; 
Litvaitis et al. 1985, pp. 869-872; Hodges 2000a, pp. 136-140 and 
2000b, pp. 183-195).
    Over much of the lynx's range, hare densities are higher in 
regenerating, earlier successional forest stages because they often 
have greater understory structure than mature forests (Buehler and 
Keith 1982, p. 24; Wolfe et al. 1982, pp. 665-669; Koehler 1990, pp. 
847-848; Hodges 2000b, pp. 183-195; Homyack 2003, pp. 63, 141; Griffin 
2004, pp. 84-88). Because understory density within a forest stand 
changes over time as the stand undergoes succession, (i.e., as earlier 
successional stages with dense understories advance to more mature 
stands with reduced understory structure), hare habitat quality and 
corresponding hare densities also shift continually across boreal 
forest landscapes. However, snowshoe hares can be abundant in mature 
forests with dense understories, particularly in the Northern Rocky 
Mountains portion of the DPS (Griffin 2004, pp. 53-54; Hodges et al. 
2009, p. 876; Squires et al. 2010, pp. 1648, 1653-1657; Berg et al. 
2012, pp. 1483-1487), and these mature forests may be a source of hares 
for other adjacent forest types (Griffin and Mills 2009, pp. 1492, 
1495-1496). Lynx do not occur everywhere within the range of snowshoe 
hares in the contiguous United States (Bittner and Rongstad 1982, p. 
146; McCord and Cardoza 1982, p. 729). This may be due to inadequate 
abundance, density, or spatial distribution of hares in some places, or 
the absence of snow conditions that would allow lynx to express a 
competitive advantage over other hare predators, or a combination of 
these factors.
    Within the boreal forest, lynx den sites are located where coarse 
woody debris, such as downed logs and windfalls, provides security and 
thermal cover for lynx kittens (McCord and Cardoza 1982, pp. 743-744; 
Koehler 1990, pp. 847-849; Slough 1999, p. 607; Squires and Laurion 
2000, pp. 346-347; Organ et al. 2008, entire; Squires et al. 2008, pp. 
1497, 1501-1505; Moen and Burdett 2009, entire). The amount of 
structure (e.g., downed, large, woody debris) appears to be more 
important than the age of the forest stand for lynx denning habitat 
(Mowat et al. 2000, pp. 274-275), although in western Montana, 80 
percent of documented dens occurred in mature stands (Squires et al. 
2008, p. 1497).
Biology
    Because of the patchiness and temporal nature of high-quality 
snowshoe hare habitat across much of the range of lynx in the 
contiguous United States, lynx populations in the DPS require large 
boreal forest landscapes with high average snowshoe hare densities to 
ensure that sufficient high-quality snowshoe hare habitat is available 
and to ensure that lynx may move freely among patches of habitat and 
among subpopulations of lynx. Individual lynx maintain large home 
ranges, reported as generally ranging from 12 to 83 mi\2\ (31 to 216 
km\2\) (Koehler 1990, p. 847; Aubry et al. 2000, pp. 382-386; Squires 
and Laurion 2000, pp. 342-347; Squires et al. 2004a, pp. 13-16, Table 
6; Vashon et al. 2005a, pp. 7-11, Vashon et al. 2008, p. 1479). The 
size of lynx home ranges varies depending on abundance of snowshoe 
hares, the lynx's gender and age, the season, and the density of lynx 
populations (Koehler 1990, p. 849; Poole 1994, pp. 612-616; Slough and 
Mowat 1996, pp. 951, 956; Aubry et al. 2000, pp. 382-386; Mowat et al. 
2000, pp. 276-280; Vashon et al. 2005a, pp. 9-10; Vashon et al. 2008, 
pp. 1482-1485). When hare densities decline, for example, lynx enlarge 
their home ranges to obtain sufficient amounts of food to survive and 
reproduce (Slough and Mowat 1996, p. 956; Mowat et al. 2000, pp. 265, 
278). When hare densities are very low and lynx hunting success 
declines, many lynx abandon home ranges and disperse, often over long 
distances, in search of areas with greater food resources (Slough and 
Mowat 1996, pp. 956-957; Mowat et al. 2000, pp. 290-294). Although some 
of these dispersing lynx survive and reestablish home ranges elsewhere, 
many never find areas of high hare densities and die en route, often 
soon after initiating dispersal (Mowat et al. 2000, p. 293).
    Lynx are highly mobile and regularly move long distances (greater 
than 60 mi (100 km)) (Aubry et al. 2000, pp. 386-387; Mowat et al. 
2000, pp. 290-294; Moen et al. 2010b, pp. ii, 17-19; Vashon et al. 
2012, pp. 21-22). Lynx disperse primarily when previously adequate 
habitats become temporarily inadequate due to snowshoe hare population 
declines (Ward and Krebs 1985, pp. 2821-2823; Slough and Mowat 1996, p. 
956; O'Donoghue et al. 1997, pp. 156, 159; Poole 1997, pp. 499-503). 
Lynx may disperse at any time of year (Moen et al. 2010b, pp. ii, 5). 
Subadult lynx disperse even when hares are abundant (Poole 1997, pp. 
502-503), presumably to establish new home ranges. Lynx also make 
exploratory movements outside their home ranges (Aubry et al. 2000, p. 
386; Squires et al. 2001, pp. 18-26).
    Snowshoe hares comprise a majority of the lynx diet throughout its 
range (Nellis et al. 1972, pp. 323-325; Brand et al. 1976, pp. 422-425; 
Koehler 1990, p. 848; Apps 2000, pp. 358-359, 363; Aubry et al. 2000, 
pp. 375-378; Mowat et al. 2000, pp. 267-268; von Kienast 2003, pp. 37-
38; Squires et al. 2004a, p. 15, Table 8), and hare abundance is the 
major driver of lynx population dynamics (see below). Lynx prey 
opportunistically on other small mammals and birds, particularly during 
lows in snowshoe hare populations, but alternate prey species do not 
sufficiently compensate for low availability of snowshoe hares, and 
lynx populations cannot persist over time in areas with consistently 
low hare densities (Brand et al. 1976, pp. 422-425; Brand and Keith 
1979, pp. 833-834; Koehler 1990, pp. 848-849; Mowat et al. 2000, pp. 
267-268).
    Lynx populations in Canada fluctuate in response to the cycling of 
snowshoe hare populations (Elton and Nicholson 1942, pp. 241-243; 
Hodges 2000a, pp. 118-123; Mowat et al. 2000, pp. 265-272), with 
synchronous fluctuations in lynx numbers emanating from the core of the 
Canadian population and spreading over vast areas, generally lagging 
hare numbers by one year (McKelvey et al. 2000a, pp. 232, 239; Mowat et 
al. 2000, pp. 266, 270). When hares are abundant, lynx have larger 
litter sizes, higher kitten survival, and lower adult mortality, 
resulting in rapid population growth during the increase phase of the 
hare cycle (Slough and Mowat 1996, pp. 955-956; Mowat et al. 2000, pp. 
266, 270-272, 281-289). When snowshoe hare populations are low, female 
lynx produce few or no

[[Page 59436]]

kittens that survive to independence (Nellis et al. 1972, pp. 326-328; 
Brand et al. 1976, pp. 420, 427; Brand and Keith 1979, pp. 837-838, 
847; Poole 1994, pp. 612-616; Slough and Mowat 1996, pp. 953-958; 
O'Donoghue et al. 1997, pp. 158-159; Aubry et al. 2000, pp. 388-389; 
Mowat et al. 2000, pp. 285-287). When hares decline, lynx mortality 
rates increase, largely because of starvation, as do home range sizes 
and dispersal/emigration rates (Ward and Krebs 1985, pp. 2821-2823; 
O'Donoghue et al. 1997, pp. 156, 159; Poole 1997, pp. 499-503; Mowat et 
al. 2000, pp. 265-272, 278, 281-294). Lynx numbers decline dramatically 
during the ``crash'' phase of the hare cycle (Slough and Mowat 1996, p. 
956; Mowat et al. 2000, p. 283), with large numbers of lynx dispersing 
in search of food. Historically, this has resulted in irruptions--large 
numbers of lynx entering the northern contiguous U.S.--such as the 
unprecedented ``explosions'' of lynx observed in the 1960s and 1970s 
(McKelvey et al. 2000a, p. 242). During these events, many lynx 
occurred in anomalous habitats, suffered high mortality, and numbers 
declined dramatically within a few years of irruptive peaks (Thiel 
1987, entire; McKelvey et al. 2000a, p. 242).
    Although snowshoe hare populations in Canada show strong, regular 
population cycles, these types of synchronous, intrinsically generated 
fluctuations are generally much less pronounced or absent entirely 
among hare populations in the contiguous United States (Hodges 2000b, 
pp. 165-173; Hodges et al. 2009, pp. 870, 875-876; Scott 2009, pp. 1-
44). In the contiguous United States, the degree to which regional lynx 
population fluctuations are influenced by local snowshoe hare 
population dynamics is unclear. However, it is anticipated that because 
of variability in the timing and intensity of lynx irruptions from 
Canada, and natural fluctuations in snowshoe hare populations, there 
will be periods when lynx densities within the DPS are extremely low. 
This dynamic likely predated the historical lynx record and we consider 
such fluctuations, including periods of very low lynx density, to be a 
natural part of lynx dynamics in the contiguous U.S. DPS. Where lynx 
populations are contiguous with cyclic hare populations in Canada, lynx 
presence and population dynamics in the contiguous United States appear 
to be more influenced by the occurrence of irruptions from Canada than 
by intrinsically generated snowshoe hare population cycles within the 
DPS range.

Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not 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 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) 
of the Act would apply, but even in the event of a destruction or 
adverse modification finding, the obligation of the Federal action 
agency and the landowner is not to restore or recover the species, but 
to implement reasonable and prudent alternatives to avoid destruction 
or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical and biological features within an area, we focus on the 
principal biological or physical constituent elements (primary 
constituent elements such as roost sites, nesting grounds, seasonal 
wetlands, water quality, tide, soil type) that are essential to the 
conservation of the species. Primary constituent elements are those 
specific elements of the physical or biological features that provide 
for a species' life-history processes and are essential to the 
conservation of the species.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. For example, an area currently occupied by the species but 
that was not occupied at the time of listing may be essential to the 
conservation of the species and may be included in the critical habitat 
designation. We designate critical habitat in areas outside the 
geographical area occupied by a species only when a designation limited 
to its range 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; H.R. 5658)), 
and our associated Information Quality Guidelines, provide criteria, 
establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data

[[Page 59437]]

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 one has been completed), articles in peer-reviewed 
journals, conservation plans developed by States and counties, 
scientific status surveys and studies, biological assessments, other 
unpublished materials, or experts' opinions or personal knowledge.
    Habitat is generally dynamic, and species may move from one area to 
another over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) conservation 
actions implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) section 9 of the Act's prohibitions on taking any 
individual of the species, including taking caused by actions that 
affect habitat. Federally funded or permitted projects affecting listed 
species outside their designated critical habitat areas may still 
result in jeopardy findings in some cases. These protections and 
conservation tools will continue to contribute to recovery of this 
species. Similarly, critical habitat designations made on the basis of 
the best available information at the time of designation will not 
control the direction and substance of future recovery plans, habitat 
conservation plans (HCPs), or other species conservation planning 
efforts if new information available at the time of these planning 
efforts calls for a different outcome.

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12), require that, to the maximum extent 
prudent and determinable, the Secretary shall designate critical 
habitat at the time the species is determined to be an endangered or 
threatened species. Our regulations (50 CFR 424.12(a)(1)) state that 
the designation of critical habitat is not prudent when one or both of 
the following situations exist:
    (1) The species is threatened by taking or other human activity, 
and identification of critical habitat can be expected to increase the 
degree of threat to the species, or
    (2) such designation of critical habitat would not be beneficial to 
the species.
    There is currently no imminent threat of take attributed to 
collection or vandalism under Factor B for Canada lynx, and 
identification and mapping of critical habitat is not expected to 
initiate any such threat. In the absence of finding that the 
designation of critical habitat would increase threats to a species, if 
there are any benefits to a critical habitat designation, then a 
prudent finding is warranted. Here, the potential benefits of 
designation include: (1) Triggering consultation under section 7 of the 
Act, in new areas for actions in which there may be a Federal nexus 
where it would not otherwise occur because, for example, it is or has 
become unoccupied or the occupancy is in question; (2) focusing 
conservation activities on the most essential features and areas; (3) 
providing educational benefits to state or county governments or 
private entities; and (4) preventing people from causing inadvertent 
harm to the species. Therefore, because we have determined that the 
designation of critical habitat will not likely increase the degree of 
threat to the species and may provide some measure of benefit, we find 
that designation of critical habitat is prudent for the Canada lynx 
DPS.

Critical Habitat Determinability

    Having determined that designation is prudent, under section 
4(a)(3) of the Act we must find whether critical habitat for lynx is 
determinable. Our regulations at 50 CFR 424.12(a)(2) state that 
critical habitat is not determinable when one or both of the following 
situations exist:
    (i) Information sufficient to perform required analyses of the 
impacts of the designation is lacking, or
    (ii) The biological needs of the species are not sufficiently well 
known to permit identification of an area as critical habitat.
    When critical habitat is not determinable, the Act allows the 
Service an additional year to publish a critical habitat designation 
(16 U.S.C. 1533(b)(6)(C)(ii)).
    We reviewed the available information pertaining to the biological 
needs of the species and habitat characteristics where lynx occur. This 
and other information represent the best scientific data available and 
led us to conclude that the designation of critical habitat is 
determinable for the Canada lynx DPS.

Physical or Biological Features

    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied by the species at the time of listing to 
designate as critical habitat, we consider the physical or biological 
features that are essential to the conservation of the species and 
which may require special management considerations or protection. 
These include, but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of a species.
    We derive the specific physical or biological features essential 
for the Contiguous U.S. DPS of the Canada lynx from studies of this 
species' habitat, ecology, and life history as described below. 
Additional information on the habitat, ecology, and life history of the 
lynx DPS can be found in the documents listed above under Previous 
Federal Actions. We have determined, as we did in the 2009 final 
critical habitat rule, that the following physical or biological 
features are essential for lynx:
Space for Individual and Population Growth and for Normal Behavior
Boreal Forest Landscapes
    Lynx populations respond to biotic and abiotic factors at different 
scales. At the regional scale, boreal forests, snow conditions, and 
competitors (especially bobcat) influence the species' range (Aubry et 
al. 2000, pp. 378-380; McKelvey et al. 2000a, pp. 242-253; Hoving et 
al., 2005 p. 749). At the

[[Page 59438]]

landscape scale within each region, natural and human-caused 
disturbance processes (e.g., fire, wind, insect infestations, forest 
management, and development) may influence the spatial and temporal 
distribution of lynx populations by affecting the distribution of high 
quality habitat for snowshoe hares (Agee 2000, pp. 47-73; Ruediger et 
al. 2000, pp. 1-3, 2-2--2-6, 7-3). At the stand-level (vegetation 
community) scale, the quality, quantity, and juxtaposition of habitats 
influence home range location and size, productivity, and survival 
(Aubry et al. 2000, pp. 380-390; Vashon et al. 2005a, pp. 9-11). At the 
smaller substand (within-stand) scale, the spatial distribution and 
abundance of prey and microclimate likely influence lynx movements, 
hunting behavior, and den and resting site locations (Organ et al. 
2008, entire; Squires et al. 2008, entire; Moen and Burdett 2009, p. 
16; Squires et al. 2010, pp. 1648, 1654-1657).
    All of the physical and biological features of critical habitat for 
lynx are found only within large landscapes in what is broadly 
described as the boreal forest or cold temperate forest (Frelich and 
Reich 1995, p. 325; Agee 2000, pp. 43-46). That is, no individual 
small-scale area or site is likely to have all of the physical and 
biological features lynx need to survive. Rather, lynx in the DPS use 
very large areas as home ranges that incorporate landscape features 
that may be widely separated from one another to satisfy all of their 
life-history needs. In contrast to the extensive homogenous boreal 
forest found in the core of lynx range in northern Canada and Alaska, 
the southern terminus of the boreal forest type that extends into parts 
of the northern contiguous United States becomes transitional with 
other forest types--the Acadian forest in the Northeast (Seymour and 
Hunter 1992, pp. 1, 3), deciduous temperate forest in the Great Lakes, 
and subalpine forest in the west (Agee 2000, pp. 43-46). In this rule, 
we use the term ``boreal forest'' because it generally encompasses most 
of the vegetative descriptions of the transitional forest types that 
comprise lynx habitat in the contiguous United States (Agee 2000, pp. 
40-41).
    Because of the transitional nature and patchy distribution of 
boreal forest in the contiguous United States, species that are 
specifically adapted to the classic boreal forest farther north, like 
the lynx, must contend with aspects of their habitat at the southern 
extent of the boreal forest for which they are not well-adapted. For 
example, southern transitional boreal forests often have lower 
landscape snowshoe hare densities than boreal forests further north 
(Wolff 1980, pp. 123-128; Buehler and Keith 1982, pp. 24, 28; Koehler 
1990, p. 849; Koehler and Aubry 1994, p. 84). This requires lynx in the 
contiguous United States to incorporate more land area into their home 
ranges than lynx do in the north to acquire adequate food (Mowat et al. 
2000, pp. 265, 277-278). At some point, landscape hare densities become 
too low, making some areas incapable of supporting lynx survival and 
reproduction. Larger home ranges likely require more energy output 
associated with greater foraging effort (Apps 2000, p. 364) and 
possibly increased exposure to predation and other mortality factors 
than lynx face in the core of their range. All of this likely leads to 
lower reproductive output and tentative conservation status in many 
parts of the DPS relative to those in Canada and Alaska (Buskirk et al. 
2000b, p. 95).
    Throughout the range of the DPS, lynx habitat occurs within boreal 
forest vegetation types that support high landscape densities of 
snowshoe hares and have deep snow for extended periods. In eastern 
North America, lynx distribution was strongly associated with areas of 
deep snowfall and large (40-mi\2\ (100-km\2\)) landscapes that had been 
heavily cut and treated with herbicides and had a high proportion of 
regenerating forest (Hoving 2001, pp. 75, 143). Hoving et al. (2004, p. 
291) concluded that the broad geographic distribution of lynx in 
eastern North America is most influenced by snowfall, but within areas 
of similarly deep snowfall, measures of forest succession become more 
important factors in determining lynx distribution. Second-order 
habitat selection in the Acadian forest region is influenced by hare 
density (a surrogate for early successional forest) and mature conifer 
forest, despite its association with low hare densities (Simons-Legaard 
et al. 2013 pp. 573-574). In the Northern Rocky Mountains, lynx habitat 
relationships appear to be less tied to early successional forest 
stages; high lynx use and hare densities, especially in the critical 
winter season, occur in mature multistoried forest stands where conifer 
branches reach the snow surface and thereby provide hare forage 
(Squires et al. 2006a, p. 15; Squires et al. 2010, pp. 1653-1657; Berg 
et al. 2012, entire).
    Boreal forests used by lynx are generally cool, moist, and 
dominated by conifer tree species, primarily spruce and fir (Agee 2000, 
pp. 40-46; Aubry et al. 2000, pp. 378-382; Ruediger et al. 2000, pp. 4-
3, 4-8--4-11, 4-25--4-26, 4-29--4-30). Boreal forest landscapes used by 
lynx are heterogeneous mosaics of vegetative cover types and 
successional forest stages created by natural and human-caused 
disturbances (McKelvey et al. 2000c, pp. 426-434). In many places 
periodic vegetation disturbances stimulate development of dense 
understory or early successional habitat for snowshoe hares (Ruediger 
et al. 2000, pp. 1-3--1-4, 7-4--7-5). In Maine, lynx were positively 
associated with landscapes altered by clearcutting 15 to 25 years 
previously (Hoving et al. 2004, p. 291; Simons-Legaard et al. 2013, pp. 
573-574). In other places, such as the Northern Rocky Mountains and 
Greater Yellowstone Area, mature multistoried conifer forests as well 
as dense regenerating conifer stands provide foraging habitat for lynx 
(Squires et al. 2010, pp. 1648, 1653-1657; Berg et al. 2012, entire).
    The overall quality of the boreal forest landscape and the 
juxtaposition of stands of high-quality habitat within the landscape 
are important for both lynx and snowshoe hares in that both can 
influence connectivity or movements between habitat patches, 
availability of food and cover, and spatial structuring of populations 
or subpopulations (Hodges 2000b, pp. 184-195; McKelvey et al. 2000c, 
pp. 431-432; Walker 2005, p. 79). For example, lynx foraging habitat 
must be near denning habitat to allow females to adequately provision 
dependent kittens, especially when the kittens are relatively immobile 
(Moen et al. 2008a, p. 1507; Vashon et al. 2012, p. 16). In north-
central Washington, hare densities were higher in landscapes with an 
abundance of dense boreal forest interspersed with small patches of 
open habitat, in contrast to landscapes composed primarily of open 
forest interspersed with few patches containing dense vegetation 
(Walker 2005, p. 79; Lewis et al. 2011, p. 565). Similarly, in 
northwest Montana, connectivity of dense patches within the forest 
matrix benefited snowshoe hares (Ausband and Baty 2005, p. 209). In 
mountainous areas, lynx appear to prefer relatively gentle slopes (Apps 
2000, p. 361; McKelvey et al. 2000d, p. 333; von Kienast 2003, p. 21, 
Table 2; Maletzke 2004, pp. 17-18).
    Individual lynx require large areas of boreal forest landscapes to 
support their home ranges and to facilitate dispersal and exploratory 
travel. The size of lynx home ranges is strongly influenced by the 
quality of the habitat, particularly the abundance of snowshoe hares, 
in addition to other factors such as gender, age, season, and density 
of the lynx population (Aubry et al. 2000, pp. 382-385; Mowat et al. 
2000, pp. 276-280). Generally, females with kittens have the smallest 
home ranges while males have the largest home ranges (Moen et al.

[[Page 59439]]

2005, p. 11; Burdett et al. 2007, p. 463). Reported average home range 
sizes vary greatly from 12 mi\2\ (31 km\2\) for females and 26 mi\2\ 
(68 km\2\) for males in Maine (Vashon et al. 2005a, p. 7), 8 mi\2\ (21 
km\2\) for females and 119 mi\2\ (307 km\2\) for males in Minnesota 
(Moen et al. 2005, p. 12), and 34 mi\2\ (88 km\2\) for females and 83 
mi\2\ (216 km\2\) for males in northwest Montana (Squires et al. 2004a, 
p. 13). Home range sizes of lynx introduced into Colorado averaged 29 
mi\2\ (75 km\2\) among reproductive females, 40 mi\2\ (103 km\2\) among 
attending (reproductive) males, and 252 mi\2\ (654 km\2\) among all 
non-reproductive lynx (Shenk 2008, pp. 1, 10). Based on data presented 
in Shenk (2008, p. 10) and combining reproductive and non-reproductive 
lynx, home range estimates for lynx in Colorado averaged 181 mi\2\ (470 
km\2\) for females and 106 mi\2\ (273 km\2\) for males.
Forest Type Associations in the Contiguous United States
Maine
    Stands of regenerating sapling (15-35 years old) spruce-fir forest 
that provide dense cover are preferred by both snowshoe hares and lynx 
in Maine (Robinson 2006, pp. 26-36; Vashon et al. 2012, p. 15). Lynx 
were more likely to occur in large (40 mi\2\ (100 km\2\)) landscapes 
with regenerating forest, and less likely to occur in landscapes with 
very recent clearcut or partial harvest, (Hoving et al. 2004, pp. 291-
292). Regenerating stands used by lynx generally develop after forest 
disturbance and are characterized by dense horizontal structure and 
high stem density within a meter of the ground. These habitats support 
high snowshoe hare densities (Homyack 2003, p. 63; Fuller and Harrison 
2005, pp. 716,719; Vashon et al. 2005a, pp. 10-11). At the stand scale, 
lynx in northwestern Maine selected older (11- to 26-year-old), tall 
(15 to 24 feet (ft) (4.6 to 7.3 meters (m)) regenerating clearcut 
stands and older (11- to 21-year-old) partially harvested stands 
(Fuller et al. 2007, pp. 1980, 1983-1985). At the home range scale, 
lynx also selected mature conifer forest (Simons-Legaard et al. 2013, 
pp. 572-573). Lynx may use partial harvested and mature conifer stands 
associated with low hare densities because of increased ease of travel 
and prey access along the extensive edges with high-quality 
(regenerating clearcut) habitats (Simons-Legaard et al. 2013 p. 574).
Minnesota
    In Minnesota, lynx primarily occur in the Northern Superior Uplands 
Ecological Section of the Laurentian Mixed Forest Province. 
Historically, this area was dominated by red pine (Pinus resinosa) and 
white pine (P. strobus) mixed with aspen (Populus spp.), paper birch 
(Betula papyrifera), spruce, balsam fir (A. balsamifera) and jack pine 
(P. banksiana) (Minnesota Department of Natural Resources [Minnesota 
DNR] 2003, p. 2). Lynx habitats in Minnesota were associated with 
Lowland Conifer, Upland Conifer, Mixed Conifer, and Regenerating Forest 
cover types, with lynx selecting the latter because it provides 
snowshoe hare habitat (Moen et al. 2008a, p. 1511; Moen et al. 2008b, 
pp. 18-29). Moen et al. (2008b, pp. 23-25) reported that lynx also 
selected for the edges between different cover types, presumably 
because they could more efficiently capture hares along the edges 
between stands than in the dense interior understory of regenerating 
stands.
Northern Rocky Mountains (Idaho, Montana, and Northwestern Wyoming)
    In the Northern Rocky Mountains, most lynx occurrences are 
associated with the Rocky Mountain Conifer Forest or Western Spruce-Fir 
Forest vegetative class (Kuchler 1964, p. 4; McKelvey et al. 2000a, p. 
246) and most occur above 4,101 ft (1,250 m) elevation (Aubry et al. 
2000, pp. 378-380; McKelvey et al. 2000a, pp. 243-245). The dominant 
vegetation that constitutes lynx habitat in these areas is subalpine 
fir (A. lasiocarpa), Engelmann spruce (P. engelmanii) and lodgepole 
pine (P. contorta) (Aubry et al. 2000, p. 379; Ruediger et al. 2000, 
pp. 4-8--4-10). Within in the boreal forest landscape, lodgepole pine 
is seral to (i.e., is an earlier successional stage) subalpine fir and 
Engelmann spruce, which are climax forest habitat types. In winter, 
lynx preferentially used mature multistoried stands, predominantly 
spruce-fir, with dense horizontal cover and avoided clearcuts and large 
forest openings (Squires et al. 2010, pp. 1648, 1653-1656). In summer, 
lynx also selected young stands with dense spruce-fir saplings, and 
avoidance of openings was not apparent (Squires et al. 2010, pp. 1648, 
1654-1655). Dry forest types (e.g., ponderosa pine (Pinus ponderosa), 
dry Douglas-fir (Pseudotsuga menziesii)) do not provide lynx habitat 
(Berg 2009, p. 20; Squires et al. 2010, p. 1655).
Washington
    In the North Cascades in Washington, most lynx occurrences were 
found above 4,101 ft (1,250 m) (McKelvey et al. 2000a, p. 243, 2000d, 
p. 321; von Kienast 2003, p. 28, Table 2; Maletzke 2004, p. 17). In 
this area, lynx selected Engelmann spruce--subalpine fir forest cover 
types in winter (von Kienast 2003, p. 28; Maletzke 2004, pp. 16-17; 
Koehler et al. 2008, p. 1518). As in the Northern Rockies, lodgepole 
pine is a dominant tree species in the earlier successional stages of 
these climax cover types. Seral (intermediate stage of ecological 
succession) lodgepole stands contained dense understories and, 
therefore, received high use by snowshoe hares and lynx (Koehler 1990, 
pp. 847-848; McKelvey et al. 2000d, pp. 332-335). Douglas-fir and 
ponderosa pine forests, openings, recent burns, open canopy and 
understory cover, and steep slopes were all avoided habitat types 
(Koehler et al. 2008, p. 1518).
Southern Rocky Mountains (Western Colorado, Northern New Mexico, 
Southern Wyoming)
    Lynx introduced into Colorado used high-elevation mature Engelmann 
spruce/subalpine fir, mixed spruce/fir/aspen, and riparian/mixed 
riparian habitats in Subalpine and Upper Montane forest zones, and 
avoided lower elevation Montane forests of Douglas fir and ponderosa 
pine (Shenk 2008, pp.1-2, 12, 15; Devineau et al. 2010, p. 525; Ivan 
2011a, pp. 21, 27). However, it remains uncertain whether these 
habitats can sustain a viable lynx population over time (Shenk 2008, p. 
16; Shenk 2010, pp. 2, 5-6, 11). Introduced lynx from Colorado also 
have wandered into mountainous areas of northern New Mexico, which 
contain relatively small and fragmented areas of similar high-elevation 
spruce/fir and cold mixed-conifer habitats (U.S. Forest Service 2009, 
pp. 5-10). No evidence exists that lynx occupied these areas 
historically; reproduction among introduced lynx that have traveled 
from Colorado into northern New Mexico has not been documented; and 
habitats in New Mexico are thought to be incapable of supporting a 
self-sustaining lynx population (U.S. Forest Service 2009, pp. 2, 10, 
16-17).
    Based on the information above, we identify large boreal forest 
landscapes that support high densities of snowshoe hares and have deep 
snow for extended periods to contain the physical and biological 
features needed to support and maintain lynx populations over time and 
which, therefore, are essential for the conservation of the lynx DPS.

[[Page 59440]]

Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements
Food (Snowshoe Hares)
    Snowshoe hare density is the most important factor explaining the 
persistence of lynx populations (Steury and Murray 2004, p. 136). 
Snowshoe hare density differences among areas of boreal forest in the 
contiguous United States are also thought to explain many lynx 
distribution patterns historically and at present. While seemingly all 
of the physical aspects usually associated with lynx habitat may be 
present in a landscape, if snowshoe hare densities are inadequate to 
support reproduction, recruitment, and survival over time, lynx 
populations will not persist. Minimum landscape snowshoe hare densities 
necessary to maintain persistent, reproducing lynx populations across 
the range of the DPS have not been determined, although Ruggiero et al. 
(2000, pp. 446-447) suggested that at least 0.2 hares per ac (0.5 hares 
per ha) may be necessary. Landscape hare densities in areas known to 
support lynx home ranges in the contiguous United States were 0.26 
hares per ac (0.64 hares per ha) in northeast Minnesota (Moen et al. 
2012, p. 352) and 0.30 hares per ac (0.74 hares per ha) in northern 
Maine (Simons-Legaard et al. 2013, p. 574). Landscape hare density in 
Voyageurs National Park in northern Minnesota was estimated at 0.14 
hares per ac (0.35 hares per ha) and did not support resident breeding 
lynx (Moen et al. 2012, pp. 352-354). In northern Maine, areas with 
landscape hare densities less than 0.2 hares per ac (0.5 hares per ha) 
were not occupied by lynx (Simons-Legaard et al. 2013, pp. 567, 575).
    Steury and Murray (2004, entire) modeled lynx and snowshoe hare 
populations and predicted that a minimum of 0.4 to 0.7 hares per ac 
(1.1 to 1.8 hares per ha) would be required for persistence of a 
reintroduced lynx population in the portion of the lynx range in the 
contiguous United States. In areas used by introduced lynx in west-
central Colorado, Zahratka and Shenk (2008, pp. 906, 910) reported hare 
densities that ranged from 0.03 to 0.5 hares per ac (0.08 to 1.32 hares 
per ha) in mature Engelmann spruce-subalpine fir stands and from 0.02 
to 0.14 hares per ac (0.06 to 0.34 hares per ha) in mature lodgepole 
pine stands. In ``purportedly good'' hare habitat also in west-central 
Colorado in the area used by introduced lynx, Ivan (2011c, pp. iv-v, 
71, 92) estimated summer hare densities of 0.08 to 0.27 hares per ac 
(0.2 to 0.66 hares per ha) in stands of ``small'' lodgepole, 0.004 to 
0.01 hares per ac (0.01 to 0.03 hares per ha) in ``medium'' lodgepole, 
and 0.004 to 0.1 hares per ac (0.01 to 0.26 hares per ha) in spruce-fir 
stands.
    The boreal forest landscape is naturally dynamic and usually 
contains a mosaic of forest stand successional stages. In some areas, 
particularly in the eastern portion of the DPS, stands that support 
high densities of snowshoe hares are of a young successional stage and 
are in a constant state of transition to other more mature stages. 
Conversely, if the vegetation potential (or climax forest type) of a 
particular forest stand is conducive to supporting abundant snowshoe 
hares, it likely will also go through successional stages that are of 
lesser value as lynx foraging habitat (i.e., times when snowshoe hare 
abundance is low) or lynx denning habitat (Agee 2000, pp. 62-72; 
Buskirk et al. 2000a, pp. 403-408) as part of a natural forest 
succession process. For example, a boreal forest stand where there has 
been recent disturbance, such as fire or timber harvest, resulting in 
little or no understory structure will support fewer snowshoe hares 
and, therefore, lower quality lynx foraging habitat. However, that 
temporarily low-quality stand would regenerate into higher-quality 
snowshoe hare (lynx foraging) habitat within 10 to 25 years, depending 
on local conditions (Ruediger et al. 2000, pp. 1-3--1-4, 2-2--2-5). The 
continuation of this naturally dynamic pattern of succession exhibited 
in boreal forests is crucial for lynx survival due to their dependence 
on intermediate successional stages in many areas. In places where lynx 
are dependent on mature forest stages, forest stand turnover still 
occurs, but on a longer time scale requiring the ability to recruit new 
mature forest stands as others are lost to fire, insect infestation, or 
human activities.
    Forest management techniques that thin the understory may reduce 
habitat quality for hares and, thus, for lynx (Ruediger et al. 2000, 
pp. 2-4--3-2; Hoving et al. 2004, pp. 291-292; Homyack et al. 2007, 
entire), at least temporarily (Griffin and Mills 2007, entire). Stands 
may continue to provide good snowshoe hare habitat for many years until 
woody stems in the understory become too sparse, as a result of 
undisturbed forest succession or management (e.g., clearcutting or 
thinning) (Griffin and Mills 2007, entire). Thus, if the vegetation 
potential of the stand is appropriate, a stand that is not currently in 
a condition that supports abundant snowshoe hares for lynx foraging or 
coarse woody debris for den sites would improve as habitat for snowshoe 
hares (and thus lynx foraging) with time. Therefore, we consider lynx 
habitat to include forest areas with the potential, through natural 
succession, to produce high-quality snowshoe hare habitat, regardless 
of their current stage of forest succession.
    Snowshoe hares feed on conifers, deciduous trees, and shrubs 
(Hodges 2000b, pp. 181-183), and they prefer boreal forest stands that 
have a dense horizontal understory to provide food, as well as cover 
and security from predators. Snowshoe hare density is correlated to 
understory cover between approximately 3 to 10 ft (1 to 3 m) above the 
ground or snow level (Hodges 2000b, p. 184). Habitats most heavily used 
by snowshoe hares are stands with shrubs, stands that are densely 
stocked, and stands at ages where branches have more lateral cover 
(Hodges 2000b, p. 184; Lewis et al. 2011, pp. 561, 564-565). Generally, 
earlier successional forest stages provide a greater density of 
horizontal understory and support more snowshoe hares (Buehler and 
Keith 1982, p. 24; Wolfe et al. 1982, pp. 668-669; Koehler 1990, pp. 
847-848; Hodges 2000b, pp. 184-191; Griffin 2004, pp. 84-88). However, 
snowshoe hares can be abundant in mature forests with dense 
understories, particularly in the western part of the DPS range 
(Griffin 2004, pp. 53-54, 88; Hodges et al. 2009, p. 876; Squires et 
al. 2010, pp. 1648, 1653-1657; Berg et al. 2012, pp. 1484-1488), and 
such mature forests may be a source of hares for other adjacent forest 
types (Griffin and Mills 2009, pp. 1492, 1495-1496).
    In Maine, snowshoe hare densities were highest in regenerating 
softwood (spruce and fir) and mixed-wood stands with high conifer stem 
densities (Homyack 2003, p. 195; Fuller and Harrison 2005, pp. 716, 
719; Robinson 2006, p. 69). However, when exploiting high-density hare 
habitats, lynx focused foraging efforts in stands with intermediate 
hare densities and structural complexity that occurred at the edges of 
the highest density habitat, suggesting that lynx must balance between 
hare abundance and accessibility (Fuller and Harrison 2010, pp. 1276-
1277; Simons-Legaard et al. 2013, p. 574). In northeastern Minnesota, 
lynx used areas with relatively higher proportions of coniferous 
forest, young (10- to 30-year-old) regenerating forest, and shrubby 
grassland, and these habitats supported the highest hare densities 
(McCann and Moen 2011, pp. 509, 515).
    In montane and subalpine forests in northwest Montana, the highest 
snowshoe hare densities in summer were generally in younger stands with

[[Page 59441]]

dense forest structure, but winter hare densities were as high or 
higher in mature stands with dense understory forest structure (Griffin 
2004, p. 53). In Montana in winter, hare and lynx used multistoried 
stands, often in older-age classes, where the tree boughs touch the 
snow surface but where the stem density is low (Squires et al. 2006a, 
p. 15; Griffin and Mills 2009, pp. 1492, 1495-1496; Squires et al. 
2010, pp. 1648, 1653-1656). In the North Cascades of north-central 
Washington, snowshoe hare density was highest in 20-year-old lodgepole 
pine stands where the average density of trees and shrubs was 15,840 
stems per ha (6,415 stems per ac) (Koehler 1990, pp. 847-848), and hare 
density was associated with large shrubs and saplings within a stand 
(Lewis et al. 2011, pp. 561, 564-565). In western Wyoming, late-seral 
multistoried forests supported a greater abundance of snowshoe hares 
than regenerating even-aged forests (Berg et al. 2012, p. 1). 
Similarly, in Yellowstone National Park, where hares were rare and 
patchily distributed, hare presence and relative abundance were linked 
to mature forest stands (Hodges et al. 2009, p. 876). In western 
Colorado areas used by introduced lynx, Zahratka and Shenk (2008, pp. 
906, 910) estimated higher hare densities in spruce-fir stands than in 
lodgepole pine, but Ivan (2011c, pp. iv, 71, 92) estimated hare 
densities as highest in stands of small lodgepole pine, intermediate in 
spruce-fir stands, and lowest in stands of medium lodgepole pine.
    Habitats supporting abundant snowshoe hares must be present in a 
sufficient proportion (though not necessarily the majority) of the 
landscape to support a viable lynx population. Landscapes with more 
contiguous hare habitat, or where patches of high-quality habitat occur 
in a matrix with patches of similar quality, support more hares than 
fragmented habitats or those in which patches of hare habitat occur 
within a matrix of poor-quality habitat (Lewis et al. 2011, p. 565). 
Broad-scale snowshoe hare density estimates are not available for all 
of the areas being proposed as lynx critical habitat. Available 
snowshoe hare density estimates are helpful in determining where 
snowshoe hares exist, but each estimate is specific to both a location 
and a point in time. Due to intrinsic, rapid fluctuations often seen in 
snowshoe hare populations, density estimates cannot be considered 
definitive for any particular area. If enough data were gathered for a 
specific area over several years, these data could be used to calculate 
an average density (with margins of error included). Lynx do not occur 
everywhere within the range of snowshoe hares in the contiguous United 
States (Bittner and Rongstad 1982, p. 146; McCord and Cardoza 1982, p. 
729). This may be due to inadequate abundance, density, or spatial 
distribution of hares in some places, to the absence of snow conditions 
that would allow lynx to express a competitive advantage over other 
hare predators, or to a combination of these factors.
    Based on the information above, we identify high densities of 
snowshoe hares broadly distributed across boreal forest landscapes to 
be a physical or biological feature needed to support and maintain lynx 
populations over time and which, therefore, is essential to the 
conservation of the lynx DPS.
Snow Conditions (Other Physiological Requirements)
    Snow conditions also determine the distribution of lynx and 
snowshoe hares. Deep, fluffy snow conditions likely restrict potential 
lynx competitors such as bobcat or coyote from effectively encroaching 
on or hunting hares in winter lynx habitat. In addition to snow depth, 
other snow properties, including surface hardness or sinking depth, 
also influence lynx foraging success and, ultimately may be important 
factors in the spatial, ecological, and genetic structuring of the 
species (Stenseth et al. 2004, entire). Gonzalez et al. (2007, pp. 4, 
7) compared 496 lynx locations with snow cover over the period 1966-
2005 and concluded that lynx require 4 months (December through March) 
of continuous winter snow coverage.
    In eastern North America, snowfall was the strongest predictor of 
lynx occurrence at a regional scale (Hoving et al. 2005, p. 746, Table 
5), and lynx in the northeastern United States were most likely to 
occur in areas with a 10-year mean annual snowfall greater than 105 in 
(268 cm) (Hoving 2001, p. 75; Hoving et al. 2005, p. 749). The Northern 
Superior Uplands section of northeast Minnesota, which supports a 
persistent lynx population, receives more of its precipitation as snow 
than any other part of the State, and has the longest period of snow 
cover and shortest growing season (Minnesota DNR 2003, p. 2). Average 
annual snowfall from 1971 to 2000 in this area was generally greater 
than 55 in (149 cm) (University of Minnesota 2005).
    Information on average snowfall or snow depths in mountainous areas 
such as the Cascade and Northern Rocky Mountains is limited because few 
weather stations in these regions have measured snow fall or snow depth 
over time. An important consideration in mountainous areas is that 
topography strongly influences local snow conditions. For example, in 
the Cascades, annual snowfall averaged 121 in (307 cm) at Mazama, WA 
(elevation 2,106 ft (642 m)), and 15 in (38 cm) at Omak, WA (elevation 
1,299 ft (396 m)) (Western Regional Climate Center 2013). In western 
Montana areas that support lynx populations, annual snowfall averaged 
90 in (229 cm) in Troy (elevation 1,950 ft (594 m)) and 120 in (305 cm) 
at Seeley Lake (elevation 4,200 ft (1,280 m)) (Western Regional Climate 
Center 2013).
    Based on the information above, we identify winter conditions that 
provide and maintain deep, fluffy snow for extended periods in boreal 
forest landscapes to be a physical or biological feature needed to 
support and maintain lynx populations over time and which, therefore, 
are essential to the conservation of the lynx DPS.
Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring
Denning Habitat
    Lynx den sites are found in mature and younger boreal forest stands 
that have a large amount of cover and downed, large woody debris. The 
structural components of lynx den sites are common features in managed 
(logged) and unmanaged (e.g., insect damaged, wind-throw) stands. 
Downed trees provide excellent cover for den sites and kittens and 
often are associated with dense woody stem growth.
    In northern Maine, 12 of 26 natal dens occurred in conifer-
dominated sapling stands, and 5 dens were found in mature or mixed 
multistoried forest stands dominated by conifers (Organ et al. 2008, p. 
1515). Modeling sub-stand characteristics of these 26 dens determined 
that 2 variables, tip-up mounds of blown-down trees and visual 
obscurity at 5 m from the den, were most useful for predicting lynx 
den-site selection in managed forests (Organ et al. 2008, p. 1514). 
Lynx essentially selected dense cover in a cover-rich area for denning. 
Denning habitat was provided by blowdown, deadfalls, and root wads. 
Coarse woody debris alone was not a useful predictor of lynx den-site 
selection, despite its abundance, and denning habitat was not 
considered limiting in northwest Maine (Organ et al. 2008, p. 1516). 
Den sites in Maine often occurred at the interface of two stands of 
different ages or in dense regenerating conifer stands, suggesting that 
females select den sites near prey sources to minimize time spent away

[[Page 59442]]

from kittens while foraging (Vashon et al. 2012, p. 16).
    In northern Minnesota, structural components of forests, such as 
blowdown and deadfalls, appear to be more important than forest cover 
type in determining lynx denning habitat (Interagency Lynx Biology Team 
2013, p. 46). Most den sites in Minnesota were found in blowdown and 
were associated with small patches of uplands surrounded by low-lying 
wetland areas (Moen and Burdett 2009, pp. 5, 11). Although lowland 
conifer cover types appeared to provide the forest structure used most 
often for denning in northern Minnesota (Moen et al. 2008a, p. 1510), 
other forest cover types were used if they contained recent blowdowns 
(Moen and Burdett 2009, p. 16). Very dense horizontal cover in the 
immediate vicinity of the den site also appeared to be a determinant 
(Moen and Burdett 2009, p. 16). Female lynx foraged within 
approximately 1.2-1.8 mi (2-3 km) of den sites when kittens were at the 
den; at the scale of the foraging radius around a den site, landscape 
composition contained more lowland conifer, upland conifer, and 
regenerating forest than did home ranges (Moen et al. 2008a, p. 1507). 
Denning habitat does not appear to be limiting in northern Minnesota 
(Moen and Burdett 2009, p. 16).
    In northwestern Montana, lynx generally denned in mature spruce-fir 
forests among downed logs or root wads of wind-thrown trees in areas 
with abundant coarse woody debris and dense understories with high 
horizontal cover in the immediate areas around dens (Squires et al. 
2004a, Table 3; Squires et al. 2008, pp. 1497, 1501-1505). Few dens 
were located in young regenerating or thinned stands with discontinuous 
canopies (Squires et al. 2008, p. 1497). Many dens had northeasterly 
aspects and were farther from forest edges than random expectation 
(Squires et al. 2008, p. 1497).
    In the North Cascades, Washington, lynx denned in mature (older 
than 250 years) stands with an overstory of Engelmann spruce, subalpine 
fir, and lodgepole pine with an abundance of downed woody debris 
(Koehler 1990, p. 847). In this study, all den sites were located on 
north-northeast aspects (Koehler 1990, p. 847). Den site availability, 
although not thought to be limiting for lynx populations in the DPS 
(Moen et al. 2008a, p. 1512; Organ et al. 2008, pp. 1514, 1516-1517; 
Squires et al. 2008, p. 1505), is an essential component of the boreal 
forest landscapes that lynx need to satisfy a key life-history process 
(reproduction).
    Introduced lynx in Colorado denned at higher elevations and on 
steeper slopes compared to general use areas, with den sites tending to 
have northerly aspects and dense understories of coarse woody debris 
(Shenk 2008, p. 2).
    Based on the information above, we identify denning habitat as 
described above to be a physical or biological feature needed to 
support and maintain lynx populations over time and which, therefore, 
is essential to the conservation of the lynx DPS.
Habitats Protected From Disturbance or Representative of the Historic 
Geographical and Ecological Distributions of the Species
Climate Change
    Our analyses under the Act include consideration of ongoing and 
projected changes in climate. The terms ``climate'' and ``climate 
change'' are defined by the Intergovernmental Panel on Climate Change 
(IPCC). In 2007, the IPCC released its Fourth Assessment Report, which 
represents the current scientific consensus on global and regional 
climate change and the best scientific data available in this rapidly 
changing field. ``Climate'' refers to the mean and variability of 
different types of weather conditions over time, with 30 years being a 
typical period for such measurements, although shorter or longer 
periods also may be used (IPCC 2007a, p. 78). The term ``climate 
change'' thus refers to a change in the mean or variability of one or 
more measures of climate (e.g., temperature or precipitation) that 
persists for an extended period, typically decades or longer, whether 
the change is due to natural variability, human activity, or both (IPCC 
2007a, p. 78). Various types of changes in climate can have direct or 
indirect effects on species. These effects may be positive, neutral, or 
negative and they may change over time, depending on the species and 
other relevant considerations, such as the effects of interactions of 
climate with other variables (e.g., habitat fragmentation) (IPCC 2007a, 
pp. 8-14, 18-19). In our analyses, we use our expert judgment to weigh 
relevant information, including uncertainty, in our consideration of 
various aspects of climate change.
    Previous IPCC assessments concluded that temperatures across the 
globe have increased by about 1.8 [deg]Fahrenheit (F) (1 [deg]Celsius 
(C)) over the last century (IPCC 2001, p. 7). The IPCC projection for 
eastern and western North America within the range of the lynx DPS is 
climate warming of 1.8 [deg]F (1 [deg]C) to 5.4 [deg]F (3 [deg]C) by 
the year 2050 (IPCC 2007b, p. 889). The range of warming projected over 
the next century runs from 3.6 [deg]F (2 [deg]C) to 10.8 [deg]F (6 
[deg]C) for North America, with warming higher than this average in 
areas that are inland, northerly, or mountainous. The IPCC concludes 
that continued warming in North America, with lower snow accumulation 
and earlier spring snowmelt, is very likely (IPCC 2007b, p. 887). 
Climate history and projections from regional climate models for 
regions within the lynx DPS corroborate global models indicating that 
both eastern and western North America, including all portions of the 
lynx DPS, have warmed in the last century and are likely to warm 1.8 
[deg]F (1 [deg]C) to 5.4 [deg]F (3 [deg]C) by the year 2050 (IPCC 
2007b, p. 889). For example, in the Northern Rocky Mountains at Glacier 
National Park, mean summer temperatures have increased 3.0 [deg]F (1.66 
[deg]C) between 1910 and 1980 (Hall and Fagre 2003, pp. 134-137) 
resulting in lower snowpack, earlier spring melt, and distributional 
shifts in vegetation (Hall and Fagre 2003, pp. 138-139; Fagre 2005, pp. 
4-9). These changes are predicted to continue and accelerate under 
future climate scenarios (Hall and Fagre 2003, Fig. 7). An analysis of 
potential snow cover under a range of IPCC future climate scenarios and 
modeling of vegetation using a dynamic vegetation model indicates that 
potential lynx habitat could decrease by as much as two-thirds in the 
contiguous United States by the end of this century (Gonzalez et al. 
2007, pp. 4, 7-8, 10, 13-14).
    Across their worldwide distribution, lynx are dependent on deep 
snow that persists for long periods of time. Warmer winter temperatures 
are reducing snow pack in all portions of the lynx DPS through a 
combination of a higher proportion of precipitation falling as rain and 
higher rates of snowmelt during winter (Hamlet and Lettenmaier 1999, p. 
1609; Brown 2000, p. 2347; Hoving 2001, pp. 73-75; Mote 2003, p. 3-1; 
Christensen et al. 2004, p. 347; Knowles et al. 2006, pp. 4548-4549). 
This trend is expected to continue with future warming (Hamlet and 
Lettenmaier 1999, p. 1611; Christensen et al. 2004, p. 347; Mote et al. 
2005, p. 48; IPCC 2007b, p. 850). The IPCC (2007b, p. 850) concludes 
that ``snow season length and snow depth are very likely to decrease in 
most of North America except in the northernmost part of Canada where 
maximum snow depth is likely to increase.'' Shifts in the timing of the 
initiation of spring runoff toward earlier dates in western North 
America are also well documented (Hamlet and

[[Page 59443]]

Lettenmaier 1999, p. 1609; Brown 2000, p. 2347; Cayan et al. 2001, pp. 
409-410; Christensen et al. 2004, p. 347; Mote et al. 2005, p. 41; 
Knowles et al. 2006, p. 4554). In addition, a feedback effect causes 
the loss of snow cover due to the reflective nature of snow and the 
relative heat-absorbing properties of non-snow-covered ground. This 
feedback effect leads to the highest magnitude of warming occurring at 
the interface of snow-covered and exposed areas, increasing the rate at 
which melting occurs in spring (Groisman et al. 1994a, pp. 1637-1648; 
Groisman et al. 1994b, pp. 198-200). This effect has led to the average 
date of peak snowmelt to shift three weeks earlier in spring in the 
Intermountain West (Fagre 2005, p. 4).
    Snow accumulation and duration are expected to decline generally in 
the geographic areas that contain the central and eastern portion of 
the lynx DPS (IPCC 2007c, p. 891; Burns et al. 2009, p. 31). Due to the 
importance to lynx of prolonged periods of deep fluffy snow, current 
habitats that lose this feature would decline in value for lynx (Hoving 
2001, p. 73; Carroll 2007, p. 1092; Gonzalez et al. 2007, entire). 
Reduced snow depth and duration may reduce lynx's competitive advantage 
over bobcats, which have similar ecology to lynx but are not as well-
adapted to hunting hares in deep fluffy snow (Hoving 2001, pp. 23-24; 
Carroll 2007, p. 1102; Interagency Lynx Biology Team 2013, p. 69, 71).
    Changes in temperature and rainfall patterns are expected to shift 
the distribution of ecosystems northward and up mountain slopes 
(McDonald and Brown 1992, pp. 411-412; Danby and Hik 2007, pp. 358-359; 
IPCC 2007c, pp. 230, 232). As climate changes over a landscape, the 
ecosystems that support lynx are likely to shift, tracking the change 
of temperature, but with a time lag depending on the ability of 
individual plant and animal species to migrate (McDonald and Brown 
1992, pp. 413-414; Hall and Fagre 2003, p. 138; Peterson 2003, p. 652). 
In the contiguous United States, researchers expect that lynx in 
mountainous habitat will, to some extent, track climate changes by 
using higher elevations on mountain slopes, assuming that vegetation 
communities supportive of lynx and hare habitats also move upslope 
(Gonzalez et al. 2007, p. 7).
Future of Lynx Habitat
    In 2003, we determined that climate change was not a threat to lynx 
within the contiguous U.S. DPS because the best available science we 
had at that time (Hoving 2001) was too uncertain in nature (68 FR 
40083). Since that time, new information on regional climate changes 
and potential effects to lynx habitat has been developed (e.g., Knowles 
et al. 2006, pp. 4545-4559; Carroll 2007, pp. 1098-1102; Danby and Hik 
2007, pp. 358-359; Gonzalez et al. 2007, entire; Burns et al. 2009, p. 
31; Johnston et al. 2012, pp. 6-13), and much of this new information 
suggests that climate change is likely to be a significant issue of 
concern for the future conservation of the lynx DPS. These studies 
predict lynx distribution and habitat are likely to shift upward in 
elevation within its currently occupied range and recede northward as 
temperatures increase (Gonzalez et al. 2007, pp. 7, 13-14, 19; Jacobson 
et al. 2009, pp. 26-27, 30-31; Vashon et al. 2012, pp. 60, 64; 
Interagency Lynx Biology Team 2013, p. 69). Climate modeling suggests 
that lynx habitat and populations are anticipated to decline 
accordingly (Carroll 2007, pp. 1098-1102) and may disappear completely 
from parts of the range of the DPS by the end of this century (Johnston 
et al. 2012, pp. 6-13). Climate change is expected to substantially 
reduce the amount and quality of lynx habitat in the contiguous United 
States, with patches of high-quality habitat becoming smaller, more 
fragmented, and more isolated (Carroll 2007, pp. 1099-1100; Johnston et 
al. 2012, p. 11). Remaining lynx populations would likely be smaller 
than at present and, because of small population size and increased 
isolation, populations would likely be more vulnerable to stochastic 
environmental and demographic events (Carroll 2007, pp. 1100-1103).
    Aside from predicted elevational and latitudinal shifts in areas 
currently occupied by lynx, we are aware of no models that predict 
specific areas not currently of value for lynx that will become so as a 
result of climate-induced changes (e.g., Johnston et al. 2012, p. 11). 
Therefore, at this time, we find it appropriate to propose critical 
habitat for the lynx only in areas occupied by the DPS that currently 
contain the physical and biological features essential to the 
conservation of the lynx. Although it is not within our authority to 
designate critical habitat in Canada (in the event that the range of 
lynx recedes northward out of the contiguous United States), the 
revised critical habitat units in this proposed rule include, to the 
extent practicable, higher elevation habitats within the range of the 
DPS that would facilitate long-term lynx adaptation to an elevational 
shift in habitat should one occur. As climate change scenarios and 
ecosystem responses become more regionally certain, revisions to 
critical habitat may be necessary to accommodate shifts in the range of 
the essential physical and biological features and any corresponding 
shift in the range of lynx in the contiguous United States.
Primary Constituent Element for Canada Lynx
    Under the Act and its implementing regulations, we are required to 
identify the physical or biological features essential to the 
conservation of lynx in areas occupied at the time of listing, focusing 
on the features' primary constituent elements (PCEs). We consider PCEs 
to be the elements of physical or biological features that, when laid 
out in the appropriate quantity and spatial arrangement to provide for 
a species' life-history processes, are essential to the conservation of 
the species.
    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the species' 
life-history processes, we determine, as we did in the 2009 final 
critical habitat rule, that the PCE specific to lynx in the contiguous 
United States is:
    (1) Boreal forest landscapes supporting a mosaic of differing 
successional forest stages and containing:
    (a) Presence of snowshoe hares and their preferred habitat 
conditions, which include dense understories of young trees, shrubs or 
overhanging boughs that protrude above the snow, and mature 
multistoried stands with conifer boughs touching the snow surface;
    (b) Winter conditions that provide and maintain deep fluffy snow 
for extended periods of time;
    (c) Sites for denning that have abundant coarse woody debris, such 
as downed trees and root wads; and
    (d) Matrix habitat (e.g., hardwood forest, dry forest, non-forest, 
or other habitat types that do not support snowshoe hares) that occurs 
between patches of boreal forest in close juxtaposition (at the scale 
of a lynx home range) such that lynx are likely to travel through such 
habitat while accessing patches of boreal forest within a home range.
    With this proposed designation of critical habitat, we intend to 
identify the physical or biological features essential to the 
conservation of the species, through the identification of the 
appropriate quantity and spatial arrangement of the features' PCE 
sufficient to support the recovery of the species. For lynx, the 
distinction

[[Page 59444]]

between areas that may contain some of each of the physical and 
biological features described above and areas that have all of the 
physical and biological features, each in adequate quantities and 
spatial arrangements to support populations, is very important for the 
reasons discussed below.
    Many places in the contiguous United States have (1) some amount of 
boreal forest supporting a mosaic of successional stages, (a) snowshoe 
hares and their habitats, (b) deep, fluffy snow for extended periods, 
(c) denning habitat, and (d) other habitat types interspersed among 
boreal forest patches, but which do not and cannot support lynx 
populations. That is, not all boreal forest landscapes supporting a 
mosaic of differing successional forest stages contain the physical and 
biological features essential to lynx in adequate quantities and 
spatial arrangements on the landscape to support lynx populations over 
time. Lynx may occasionally (even regularly, if intermittently) occur 
temporarily in places that do not contain all of the elements of the 
PCE, especially during ``irruptions'' of lynx into the northern 
contiguous United States following hare population crashes in Canada 
(as described above under Species Information and below under Criteria 
Used To Identify Critical Habitat). However, because lynx reproduction 
and recruitment in such places, if any occur at all, do not offset 
mortality and dispersal, these areas are likely population ``sinks,'' 
and as such do not contribute to lynx conservation or recovery. We have 
determined that these population ``sink'' areas do not contain the PCE 
and, therefore, are not essential to the conservation and recovery of 
the lynx DPS.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features which are essential to the conservation of 
the species and which may require special management considerations or 
protection.
    The need for specific management direction and conservation 
measures for lynx was recognized during development of the interagency 
Lynx Conservation Assessment and Strategy (LCAS; Ruediger et al. 2000, 
entire). The U.S. Forest Service (USFS), Bureau of Land Management 
(BLM), National Park Service, and the Service developed the LCAS using 
the best available science at the time specifically to provide a 
consistent and effective approach to conserve lynx and lynx habitat on 
Federal lands. The overall goals of the 2000 LCAS were to recommend 
lynx conservation measures, to provide a basis for reviewing the 
adequacy of USFS and BLM land and resource management plans with regard 
to lynx conservation, and to facilitate conferencing and consultation 
under section 7 of the Act. The LCAS identified an inclusive list of 17 
potential risk factors for lynx or lynx habitat that could be addressed 
under programs, practices, and activities within the authority and 
jurisdiction of Federal land management agencies. The risks identified 
in the LCAS were based on effects to individual lynx, lynx populations, 
or to lynx habitat.
    Potential risk factors the LCAS addressed that may affect lynx 
productivity included: timber management, wildland fire management, 
recreation, forest/backcountry roads and trails, livestock grazing, and 
other human developments. Potential risk factors the LCAS addressed 
that may affect lynx mortality included: trapping, predator control, 
incidental or illegal shooting, and competition and predation as 
influenced by human activities and highways. Potential risk factors the 
LCAS addressed that may affect lynx movement included: highways, 
railroads and utility corridors, land ownership pattern, and ski areas 
and large resorts. Other potential large-scale risk factors for lynx 
addressed by the LCAS included: fragmentation and degradation of lynx 
refugia, lynx movement and dispersal across shrub-steppe habitats, and 
habitat degradation by nonnative and invasive plant species.
    With the listing of the lynx DPS in 2000, Federal agencies across 
the contiguous U.S. range of the lynx were required to consult with the 
Service on actions that may affect lynx. The LCAS assisted Federal 
agencies in planning activities and projects in ways that benefit lynx 
or avoid adverse impacts to lynx or lynx habitat. In most cases, if 
projects were designed that failed to meet the standards in the LCAS, 
the biologists using the LCAS would arrive at an adverse effect 
determination for lynx. The 2000 LCAS used the best information 
available at the time to ensure that the appropriate mosaic of habitat 
would be provided for lynx conservation on Federal lands. Although the 
LCAS was written specifically for Federal lands, many of the 
conservation measures were considered equally applicable to non-Federal 
lands.
    A Conservation Agreement between the USFS and the Service (U.S. 
Forest Service and U.S. Fish and Wildlife Service 2000, entire) and a 
similar Agreement between the BLM and the Service (Bureau of Land 
Management and U.S. Fish and Wildlife Service 2000, entire) committed 
the USFS and BLM to use the LCAS in determining the effects of actions 
on lynx until Forest and Land Management Plans were amended or revised 
to adequately conserve lynx. A programmatic biological opinion pursuant 
to section 7 of the Act confirmed the adequacy of the LCAS and its 
conservation measures to conserve lynx, and concluded that USFS and BLM 
land management plans, as implemented in accordance with the 
Conservation Agreements, would not jeopardize the continued existence 
of lynx (U.S. Fish and Wildlife Service 2000, entire).
    Lynx conservation depends on management that supports boreal forest 
landscapes of sufficient size to encompass the temporal and spatial 
changes in habitat and snowshoe hare populations to support 
interbreeding lynx populations over time. At the time it was written, 
the LCAS recommended the most appropriate level of management or 
protection for lynx. The LCAS conservation measures addressed risk 
factors affecting lynx habitat and lynx productivity and were designed 
to be implemented at the scale necessary to conserve lynx. This level 
of management is appropriate for Federal lands because they account for 
the majority of high-quality lynx habitat in the contiguous United 
States (except for Maine), and also because the inadequacy, at the time 
of listing, of regulatory mechanisms to conserve lynx on these lands 
was the primary reason for listing the lynx as a threatened species 
under the Act.
    After the LCAS was written, research on lynx, hares, and their 
habitats and distributions continued throughout the range of the DPS. 
The Service and land management agencies recognized that, as new 
scientific information became available, it should supplement the LCAS 
and be taken into account by land managers. The USFS considered such 
new information when it proposed to revise 18 Forest Plans under a 
programmatic plan amendment called the Northern Rocky Mountain Lynx 
Amendment (NRLA) (U.S. Forest Service 2007). Some of the LCAS standards 
were changed to guidelines because the Service determined that some 
risk factors were not negatively affecting the lynx DPS as a whole. For 
example, after publication of the LCAS, lynx studied in the contiguous 
United States were shown to use a variety of sites and conditions for 
denning, and

[[Page 59445]]

den site availability is not believed to be a limiting factor for lynx 
in the DPS (U.S. Fish and Wildlife Service 2007, pp. 48-49; Interagency 
Lynx Biology Team 2013, p. 30). Similarly, after evaluating Bunnell et 
al. (2006, entire) and Kolbe et al. (2007, entire), the Service 
determined that the best information available did not indicate that 
compacted snow routes increased competition from other species to 
levels that adversely impact lynx populations in the NRLA area (U.S. 
Fish and Wildlife Service 2007, pp. 53-55). Also since the LCAS was 
written, new information revealed the importance of multistoried stands 
for lynx in western areas (Squires et al. 2006a, p. 15); based on this, 
the USFS adopted a standard in the NRLA not identified in the LCAS for 
conserving such stands.
    In addition to diverging from the standards in the LCAS because of 
new information, the NRLA also deviated from the LCAS by allowing 
additional fuels-reduction projects in areas within the wildlands-
urban-interface (WUI). In our analysis of the NRLA, we determined that 
the management in the NRLA area would provide for the recovery of lynx 
in these areas by addressing the major reason we listed the lynx in 
2000--the lack of guidance for conservation of lynx in Federal land 
management plans. Consultation under section 7 of the Act was completed 
for the NRLA in 2007, and it is now official land management direction 
for the National Forests that adopted it. In 2008, the USFS and the 
Service coordinated on the development of the similar Southern Rocky 
Mountains Lynx Amendment to guide section 7 consultation and 
conservation of lynx introduced into Colorado and their potential 
habitats on seven National Forests in Colorado and southern Wyoming 
(U.S. Fish and Wildlife Service 2008, entire; U.S. Forest Service 
2008a, entire).
    Federal agencies across most of the range of the DPS have amended 
or revised land management plans to include specific management 
direction to conserve lynx and lynx habitat (Interagency Lynx Biology 
Team 2013, p. 88). This direction was developed in accordance with the 
National Forest Management Act (NFMA) of 1976 and the regulations that 
implement the statute (36 CFR 219.22), which requires public review and 
comment as part of the decision-making process. The USFS has completed 
such amendments or revisions to Land and Resource Management Plans in 
its Eastern, Northern, Rocky Mountain, and Intermountain regions. In 
the Pacific Northwest Region, forest plans for national forests with 
lynx habitat are currently being revised (Interagency Lynx Biology Team 
2013, p. 4).
    To address the substantial volume of new information on lynx, 
hares, and their habitats and distributions that has accumulated from 
more than a decade of continuing research throughout the range of the 
DPS, the LCAS, completed in January of 2000 and revised in August of 
2000, was again revised in 2013 (Interagency Lynx Biology Team 2013, 
entire). The current revision synthesizes all the available research 
relevant to lynx, their primary prey, and anthropogenic influences on 
the conservation of lynx in the contiguous United States. Most USFS 
Land and Resource Management Plans within the current range of lynx 
have been formally amended or revised to incorporate lynx and hare 
conservation standards and guidelines. Standards and guidelines were 
primarily based on those in the 2000 LCAS, but many Forests used the 
LCAS to develop goals, objectives, and standards and guidelines 
formulated or adapted for specific geographic areas or Forest units. 
Therefore, the Lynx Biology Team deemed it appropriate to abandon the 
use of prescriptive measures such as those in the 2000 LCAS, and in the 
2013 revision provide recommended conservation measures to be 
considered in project planning and implementation and which may help 
inform future amendments or revisions of USFS forest plans.
    The 2013 LCAS revision presents the most current source of such 
information and will continue to inform the special management 
considerations necessary for conserving lynx on Federal lands. Notably, 
the 2013 revision concludes that recent studies in the contiguous 
United States generally suggest that lynx are rarer and more patchily 
distributed in the western U.S. and Great Lakes regions, and more 
abundant in Maine, than previously thought (Interagency Lynx Biology 
Team 2013, p. 23). It recommends focusing limited conservation 
resources on those ``. . . relatively limited areas that support 
persistent lynx populations and have evidence of recent reproduction, 
with less stringent protection and greater flexibility given in areas 
that only support lynx intermittently'' (Interagency Lynx Biology Team 
2013, p. 2). By proposing critical habitat only in areas that contain 
the PCE (have all physical and biological features in adequate 
quantities and spatial arrangements), the Service, with this rule, 
adopts the LCAS recommendation to focus conservation in areas capable 
of supporting lynx populations over time.
    The LCAS was developed to provide a consistent and effective 
approach to conserve lynx on Federal lands in the conterminous United 
States. In northern New England, the only place the LCAS would apply is 
on Federal land in the White Mountain National Forest. However, in 
northern New England, most lynx habitat is on private commercial timber 
lands, and lynx populations there occur in extensive boreal forest 
landscapes where large, contiguous stands of young, regenerating 
spruce-fir habitat are prevalent (due to past clearcut timber harvest) 
and support high densities of snowshoe hares. Although lynx and hare 
habitats were likely created historically by natural forest 
disturbances (e.g., fire, insects and disease, and windthrow), the 
current extensive habitats in northern Maine are the result of large-
scale industrial forest management. Maintaining lynx populations there 
will require forest management practices that produce extensive stands 
supporting high hare densities into the future. The Service developed 
Canada Lynx Habitat Management Guidelines for Maine (McCollough 2007, 
entire), which specify the special management--recommendations on land 
use, forest conditions, landscape conditions, and silviculture 
requirements--needed to support lynx populations based on the best 
available science (see discussion of Healthy Forest Reserve Program 
under Exclusions, below, for further details).
    Assuring adequate management of most lynx habitat on private lands 
in northern New England has been limited success. Extensive 
clearcutting in the 1970s and 1980s to salvage conifers damaged by 
spruce budworm created much of the habitat currently used by lynx. The 
Maine Forest Practices Act of 1989 regulated clearcuts, resulting in a 
shift in timber-harvesting practices toward a greater reliance on 
partial harvesting, which supports lower hare densities (Robinson 2006, 
entire). Without forest management planning, likely silviculture 
scenarios are expected to cause declines of 55-65 percent in lynx 
habitat and populations by 2032 (Simons 2009, p. 217). Four northern 
Maine landowners with collective ownership of approximately 8.5 percent 
of occupied lynx habitat have developed lynx forest management plans 
through the Natural Resource Conservation Service's Healthy Forest 
Reserve Program. These landowners commit to employ the Service's lynx 
habitat management guidelines (McCollough 2007, entire), which include 
greater use of even-aged

[[Page 59446]]

silviculture that creates large patches of high-quality hare habitat 
and landscape hare densities that will continue to support lynx. All 
other private lands occupied by lynx in Maine currently lack specific 
forest management plans for lynx, indicating a continuing need for 
special management considerations there.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. We review 
available information pertaining to the habitat requirements of the 
species. In accordance with the Act and its implementing regulation at 
50 CFR 424.12(e), we consider whether designating additional areas--
outside those currently occupied as well as those occupied at the time 
of listing--are necessary to ensure the conservation of the species. We 
do not currently propose to designate any areas outside the geographic 
area occupied by lynx at the time of listing because we have determined 
that occupied areas are sufficient for the conservation of the lynx 
DPS.
    To determine those specific areas occupied by the species at the 
time it was listed on which are found those physical or biological 
features essential to the conservation of the species, as required by 
section 3(5)(a)(i) of the Act, we reviewed the approach to the 
conservation of the lynx provided in the LCAS (Ruggiero et al. 2000, 
entire; Interagency Lynx Biology Team 2013, entire); the Recovery 
Outline (U.S. Fish and Wildlife Service 2005, entire); information from 
State, Federal and Tribal agencies; and information from academia and 
private organizations that have collected scientific data on lynx. We 
reviewed available information that pertains to the habitat 
requirements of lynx and its principal prey, the snowshoe hare. This 
information included data in reports submitted by researchers holding 
recovery permits under section 10(a)(1)(A) of the Act; research 
published in peer-reviewed articles or presented in academic theses; 
agency reports and unpublished data; and various Geographic Information 
System (GIS) coverages (e.g., land cover type information, land 
ownership information, snow depth information, topographic information, 
locations of lynx obtained from radio- or GPS-collars and locations of 
lynx confirmed via DNA analysis or other verified records).
    In proposing critical habitat for the lynx, we used the best 
scientific data available to evaluate areas that possess appropriate 
quantities and spatial arrangements of the physical and biological 
features essential to the conservation of the DPS and that may require 
special management considerations or protection. In evaluating areas as 
critical habitat, we first conducted a two-part analysis: (1) We relied 
on information used during listing of the species, and any available 
newer information, to delineate the geographic area occupied by the 
species at the time of listing, and (2) we used the best available 
scientific information to determine which occupied areas contain the 
physical and biological features in adequate quantities and spatial 
arrangements to support lynx populations over time, thus demonstrating 
that they are essential to the conservation of the lynx.
    To delineate critical habitat for lynx, we must be able to 
distinguish, across the extensive range of the species in the 
contiguous United States, areas that contain all essential physical and 
biological features in adequate quantities and spatial distributions to 
support lynx populations over time (areas with the PCE, as described 
above under ``Primary Constituent Element for Canada Lynx'') from other 
areas that may contain some or all of the features but in inadequate 
quantities and/or spatial arrangements of one or more feature (and 
which, therefore, by definition do not contain the PCE). However, the 
scientific literature does not confer precisely what quantities and 
spatial arrangements of the physical and biological features are needed 
to support lynx populations throughout the range of the DPS. We lack 
range-wide site-specific information or tools that would allow us to 
analyze boreal forests across much of the range of the DPS and 
determine which specific areas contain the spatial and temporal mosaic 
of habitats and hare densities that lynx populations need to persist.
    Delineating critical habitat for lynx is complicated by a number of 
factors related to (1) the animals' biology and population dynamics; 
(2) the biology and population dynamics of its primary prey, the 
snowshoe hare; (3) the patchily distributed, temporally and spatially 
dynamic successional habitat features that shift continually across 
landscapes, and which drive populations of both lynx and hares at the 
southern peripheries of both species' ranges; (4) our imperfect 
understanding of the above factors; and (5) the resulting difficulty in 
determining with certainty and quantifying which specific habitat 
features, in what specific amounts and spatial and temporal 
arrangements, are necessary to provide the boreal forest mosaic 
essential to lynx conservation. The task is further complicated by an 
imperfect historical record of lynx occurrence in the contiguous United 
States. Finally (but importantly), the differences between areas 
capable of supporting lynx populations over time and other areas that 
look like they should, but do not, are often subtle and cannot be 
distinguished over broad areas using traditional vegetation/habitat 
mapping, remote sensing (aerial photos, satellite data), or available 
habitat modeling techniques (e.g., see Ivan 2011a, p. 27).
    As described above (see Distribution and Biology), lynx populations 
throughout most of their range are irruptive. In central Canada where 
they inhabit a large, relatively homogenous boreal forest landscape, 
lynx respond quickly to cyclic fluctuations in hare populations. When 
hares are abundant, lynx respond with increased productivity and 
survival and, therefore, increased population sizes (Slough and Mowat 
1996, pp. 955-956; Mowat et al. 2000, pp. 266, 272). Typically, after 
hare numbers peak, they begin to decline rapidly and dramatically, 
forcing large numbers of lynx to disperse--to abandon home ranges in 
areas with dwindling prey bases no longer capable of supporting the 
large number of lynx that resulted from the earlier prey abundance 
(Slough and Mowat 1996, pp. 956-957; Mowat et al. 2000, pp. 291-294). 
These periodic mass dispersal events (irruptions) appear to start at 
the core of the species' range in Canada and radiate outward (McKelvey 
et al. 2000a, p. 239). At the southern periphery of the lynx's range, 
these events sometimes result in large numbers of lynx dispersing into 
a variety of habitats in some areas of the northern contiguous United 
States in search of adequate food resources (Thiel 1987, entire; 
McKelvey et al. 2000a, pp. 239-242). Some of these dispersing lynx 
survive and reestablish home ranges elsewhere, but many die en route, 
often soon after initiating dispersal (Mowat et al. 2000, p. 293), and 
some appear to remain temporarily in areas not capable of supporting 
all of their life-history needs over time (Thiel 1987, entire).
    Canadian populations of lynx have historically been the most 
reliable source for lynx populations in many areas of the contiguous 
United States, tending to replenish them within the DPS about every ten 
years as the lynx/hare cycle ebbs and flows (McKelvey et al. 2000a, 
entire). These events can be pictured as a ``wave'' of lynx that 
occasionally washes over many of the northern tier of States. Over time 
the wave recedes, leaving remnant lynx populations or ``puddles'' of 
lynx in a

[[Page 59447]]

variety of habitats. These puddles of lynx shrink over time as many 
lynx perish in inhospitable habitats or disperse elsewhere in search of 
adequate hare densities. When these waves recede, lynx may disappear 
abruptly from areas of unsuitable habitat or more gradually from 
suboptimal or marginal habitats. In both cases, lynx perish in or leave 
many of the places where they occurred temporarily because the habitats 
in such places, due to insufficient prey densities or inadequacy of one 
or more other physical or biological features, are incapable of 
supporting them over time. In a few places in the northern contiguous 
United States, in landscapes with high snowshoe hare densities and 
adequate quantities and spatial arrangements of other essential 
physical and biological features, the puddles tend to persist. It is 
these remnant ``puddle'' areas that demonstrate the capacity to support 
lynx population resiliency--the ability of lynx to persist through lows 
in their own populations and those of their primary prey--that we have 
determined are essential to conservation of the contiguous U.S. lynx 
DPS.
    In terms of lynx conservation, it is important to distinguish 
between areas that support lynx populations over time (the lasting 
``puddles'') and areas in which lynx may occasionally and temporarily 
(even if somewhat regularly) occur during and for some time after 
population irruptions (the temporary or shrinking ``puddles''). The 
former are likely ``source'' subpopulations within the lynx 
metapopulation. In addition to their ability to persist through lows in 
hare and lynx numbers, those areas, during times of hare abundance, 
produce excess lynx that may either subsequently bolster the local 
population or disperse into adjacent areas, should habitats and hare 
numbers in those areas become favorable. The latter areas are likely 
``sinks''--places where lynx may occasionally occur temporarily but 
where reproduction and recruitment, if any occur at all, are unlikely 
to offset mortality. Such areas do not produce excess lynx and, 
therefore, do not contribute to the health and stability of the 
metapopulation.
    Lynx are wide-ranging animals that regularly make long-distance 
movements through both suitable and unsuitable habitats. They also are 
habitat and prey specialists, inferring natural selection pressures 
favoring the ability to identify, locate, and occupy habitats conducive 
to survival and reproduction. The historic record shows that lynx 
occurred only occasionally in some parts of the southern periphery of 
its range in the contiguous United States during and for variable lag 
times after the wave-like population irruptions described above, with 
long periods of apparently complete absence between irruptions 
(McKelvey et al. 2000a, entire). This finding suggests that lynx 
dispersing from areas where hare numbers were declining arrived at many 
such places looking for but not finding the physical and biological 
features they needed to survive over the long term (Mowat et al. 2000, 
p. 293). Additionally, lynx were listed under the Act because 
regulatory mechanisms at the time were deemed inadequate to conserve 
lynx habitats in the places they did occur, not because of any 
documented population decline or range contraction in the contiguous 
United States. For the reasons given above, we conclude it is unlikely 
that there are areas within the DPS range that contain the PCE (i.e., 
adequate amounts and spatial arrangements of all essential physical and 
biological features) that lynx have been unable to locate and occupy. 
We further conclude that areas supporting persistent lynx populations 
within the range of the DPS are unlikely to have remained undetected.
    Finally, the Act indicates that the function of critical habitat is 
to provide for the recovery of the species. We designate critical 
habitat in areas that contain, based on our assessment of the best data 
available to us, the physical and biological features in the 
appropriate quantities and spatial arrangements (the PCE), to provide 
for the conservation of the species. For some species, critical habitat 
may include unoccupied areas if the currently occupied areas are not 
sufficient to recover the species. For other species, critical habitat 
may be a subset of the occupied areas, if the occupied areas have 
differences in quality that relate to their ability to contribute 
meaningfully to recovery of the species. The Act does not require that 
we designate critical habitat in every area that has some components or 
some amount of the PCE, nor does it require that we demonstrate that 
all other areas lack the PCE. We make these determinations on a case-
by-case basis based upon the best information available as to what the 
species needs for recovery.
    By specifically allowing revisions to critical habitat designations 
if and when new information becomes available, the Act recognizes the 
potential limitations of the best available information at any point in 
time. For lynx, we have determined that not all areas where lynx 
occasionally occur are necessary for recovery. We believe that lynx 
recovery in the contiguous United States can be accomplished by 
conserving high-quality habitat occupied by persistent lynx populations 
across the range of the DPS, and addressing the threats to lynx in 
those areas.
    In summary, lynx have a demonstrated ability to disperse large 
distances in search of favorable habitats. Further, natural selection 
theory implies the ability of lynx to locate and occupy areas conducive 
to their survival and population viability. Nonetheless, due to 
inherent swings in densities of their primary prey, lynx regularly 
occur temporarily in habitats that are not capable of supporting 
populations over time, usually during irruptions after cyclic hare 
population crashes in Canada. In proposing critical habitat for lynx, 
it is essential to distinguish between areas capable of supporting 
populations over time (areas with all essential physical and biological 
features in adequate quantities and spatial arrangements and which, 
therefore, demonstrably contain the PCE) and areas that may have some 
or all of the features but with inadequate quantities and/or spatial 
arrangements of one or more of them (and which, therefore, do not 
contain the PCE). Exactly how much of each of the physical and 
biological features must be present and specifically how each must be 
spatially arranged within boreal forest landscapes to support lynx 
populations over time is unknown. In the absence of site-specific 
information, we do not have tools or techniques (e.g., remote sensing 
or vegetation mapping technologies of adequate resolution) that would 
allow us to distinguish across broad landscapes throughout all of the 
range of the DPS between those areas that contain the PCE and other 
areas that contain the physical and biological features but in 
inadequate quantity and/or spatial arrangement. Nonetheless, we use the 
best available information to identify where the physical and 
biological features occur in adequate quantity and spatial arrangement 
to provide for the conservation of the species. Within this context, we 
developed the strategy described below for identifying, delineating, 
and proposing to designate critical habitat for the contiguous U.S. DPS 
of the Canada lynx.
    The focus of our strategy in considering lands for designation as 
critical habitat is on boreal forest landscapes of sufficient size to 
encompass the temporal and spatial changes in habitat and snowshoe hare 
populations to support interbreeding

[[Page 59448]]

lynx populations over time. These factors are included in the PCE for 
lynx. As defined in the Recovery Outline, areas that meet these 
criteria and have recent evidence of reproduction are considered ``core 
areas'' for lynx (U.S. Fish and Wildlife Service 2005, pp. 3-4).
    In determining the geographic area occupied by the species at the 
time of listing, we used data providing verified evidence of lynx 
occurrence. We eliminated areas from consideration in two ways: (1) 
areas outside the known historical range and (2) data older than 1995 
were not considered valid to our assessment of areas occupied by lynx 
populations at the time of listing. We used data on the known 
historical range of the lynx (e.g., McKelvey et al. 2000a, pp. 207-232; 
Hoving et al. 2003, entire) to eliminate areas outside the historical 
range of the species.
    We then focused on records since 1995 to ensure that this critical 
habitat designation is based on the data that most closely represent 
the current status of lynx in the contiguous United States and the 
geographical area known to be occupied by the species at the time of 
listing. Although the average lifespan of a wild lynx is not known, we 
assumed that a lynx born in 1995 could have been alive in 2000 or 2003, 
when the final listing rule and the clarification of findings were 
published. Data after 1995 were considered a valid indicator of 
occupancy at the time of listing. Recent verified lynx occurrence 
records were provided by Federal research entities, State wildlife 
agencies, academic researchers, Tribes, and private individuals or 
organizations.
    We used only verified lynx records, because we wanted to rely on 
the best available data to evaluate specific areas and their features 
for critical habitat designation. The reliability of lynx occurrence 
reports can be questionable because the bobcat, a common species in 
much of the range of the lynx DPS, can easily be confused with the 
lynx. Additionally, many surveys are conducted by snow tracking in 
which correct identification of tracks can be difficult because of 
variable conditions affecting the quality of the track and variable 
expertise of the tracker. Our definition of a verified lynx record is 
based on McKelvey et al. (2000a, p. 209): (1) an animal (live or dead) 
in hand or observed closely by a person knowledgeable in lynx 
identification, (2) genetic (DNA) confirmation, (3) snow tracks only 
when confirmed by genetic analysis (e.g., McKelvey et al. 2006, 
entire), or (4) location data from radio or GPS-collared lynx. 
Documentation of lynx reproduction consists of lynx kittens in hand, or 
observed with the mother by someone knowledgeable in lynx 
identification, or snow tracks demonstrating family groups traveling 
together, as identified by a person highly knowledgeable in 
identification of carnivore tracks. However, we made an exception and 
accepted snow track data from Maine, New Hampshire, and Vermont because 
of the stringent protocols, the confirmation of lynx tracks by trained, 
highly-qualified biologists, and the minimal number of species in the 
area with which lynx tracks could be misidentified (Maine Dept. of 
Inland Fisheries and Wildlife 2003, entire).
    To define critical habitat according to section 3(5)(A) of the Act, 
we then delineated, within the geographical area occupied by the 
species at the time of listing, areas containing physical and 
biological features essential to the conservation of the lynx. The 
adequacy of the quantities and spatial arrangements of the physical and 
biological features (as defined above) essential to the conservation of 
the DPS is informed by the recovery outline for the species (as 
discussed below), the nature of the threats in a particular geographic 
area, and the conservation needs for the species in a particular 
geographic area.
    In the North Cascades and Northern Rockies, the features essential 
to the conservation of lynx, the majority of lynx records, and the 
boreal forest types are typically, though not always, found above 4,000 
ft (1,219 m) in elevation (McKelvey et al. 2000b, pp. 243-245; 
McAllister et al. 2000, entire). Thus, we limited the delineation of 
critical habitat to lands above this elevation unless we had habitat 
data indicating that high-quality habitat exists below this elevation. 
Additionally, in the North Cascades, features essential to the 
conservation of the lynx and the majority of the lynx records occur 
east of the crest of the Cascade Mountains.
    Application of the Criteria to the Southern Rocky Mountains; 
Certain National Forests in Idaho and Montana; and Northern New 
Hampshire, Northern Vermont, and Eastern and Western Maine
    As described above under Previous Federal Actions, the District 
Court for the District of Montana found several flaws with our 2009 
critical habitat designation for lynx. The following section discusses 
the issues raised by the court. We also provide an evaluation of the 
recently documented small breeding populations of lynx in northern New 
Hampsire, northern Vermont, and eastern and western Maine.
    Colorado and the Southern Rocky Mountains
    The Montana District Court found that we failed in our 2009 
designation to determine whether ``areas occupied by lynx in Colorado 
possess the physical and biological features essential to the 
conservation of the species.''
    In the Recovery Outline, we defined six core areas for lynx as 
those having both persistent verified records of lynx occurrence over 
time and recent evidence of reproduction (U.S. Fish and Wildlife 
Service 2005, pp. 3-5, 20-21). We also defined the Southern Rocky 
Mountains of Colorado and southern Wyoming as a ``provisional'' core 
area because it contained an introduced lynx population that had 
demonstrated reproduction (U.S. Fish and Wildlife Service 2005, p. 4). 
``Provisional'' means: ``accepted or adopted tentatively; conditional; 
or temporary.'' In our 2009 critical habitat designation, after careful 
evaluation of the historic record of verified lynx occurrence in 
Colorado and the Southern Rockies, we determined that there was no 
compelling evidence that the area had ever supported lynx populations 
over time and that, therefore, it did not likely contain the PCE and 
did not meet our criteria for designating critical habitat (74 FR 
8641). For reasons that are described in more detail below, the 
available data do not support that Colorado and the Southern Rockies 
contain the physical and biological features essential to lynx in 
adequate quantities, quality, and spatial arrangements to support lynx 
populations over time, and we provide what evidence is available to 
determine whether the area, or any parts of it, contain the PCE.
    In 1999, just prior to lynx being listed under the Act, the 
Colorado Division of Wildlife (now Colorado Parks and Wildlife (CPW)) 
began an intensive effort to establish a lynx population in Colorado, 
eventually releasing 218 wild-caught Alaskan and Canadian lynx from 
1999 to 2006 (Devineau et al. 2010, p. 524). At least 122 (56 percent) 
of the introduced lynx died by June of 2010 (Shenk 2010, pp. 1, 5), but 
others survived and established home ranges in Colorado, produced 
kittens in some years, and now are distributed throughout forested 
areas of western Colorado. Some lynx from this introduced population 
have also traveled into northern New Mexico, eastern Utah, and southern 
and western Wyoming, though no reproduction outside of Colorado has 
been documented by these dispersers.
    The CPW has determined the lynx introduction effort to be a success 
based

[[Page 59449]]

on attainment of several benchmarks (e.g., high post-release survival, 
low adult mortality rates, successful reproduction, recruitment equal 
to or greater than mortality over time; Ivan 2011a, p. 21 and 2011b, p. 
11), but acknowledges that the future persistence of the population is 
uncertain and hinges on the assumption that patterns of annual 
reproduction and survival observed as of 2010 repeat themselves during 
the next 20 or more years (Shenk 2008, p. 16; Shenk 2010, pp. 2, 5-6, 
11). However, CPW has discontinued the intensive monitoring necessary 
to determine if these patterns of reproduction and survival will 
persist over that time (Colorado Parks and Wildlife 2012, p. 1), 
instead embarking on a passive monitoring program to detect lynx 
presence (Ivan 2011b, entire).
    Although parts of Colorado and the Southern Rocky Mountains clearly 
contain some (perhaps all) of the physical and biological features lynx 
need, available evidence does not indicate that the area, or any parts 
of it, contain the features in the quantities, quality, and spatial 
arrangement necessary to provide for the conservation of the species 
(i.e., to support lynx populations over the long term). The Southern 
Rocky Mountains (western Colorado, northern New Mexico, and southern 
Wyoming) are on the southern limit of the species' range and contain 
marginal lynx habitat (74 FR 8619), are disjunct from lynx habitats in 
the United States and Canada (McKelvey et al. 2000a, p. 230; 68 FR 
40090; Devineau et al. 2010, p. 525; Interagency Lynx Biology Team 
2013, pp. 50, 54), and have patchily distributed habitat that limits 
snowshoe hare abundance (Interagency Lynx Biology team 2013, p. 54). 
The nearest lynx population occurs in the Greater Yellowstone Area, 
which supports a small, low density population also disjunct from other 
lynx populations and which is unlikely to regularly supply dispersing 
lynx to the Southern Rockies. We previously determined that the 
Southern Rockies' distance and isolation from other lynx populations 
and habitats substantially reduce the potential for lynx from northern 
populations to naturally augment or colonize the area, that the 
immigration necessary to maintain a local lynx population is, 
therefore, naturally precluded, and that the contribution of the 
Southern Rockies to the persistence of lynx in the contiguous United 
States is presumably minimal (68 FR 40100-40101).
    Dolbeer and Clark (1975, p. 539) estimated 0.30 hares per ac (0.73 
hares per ha) on their study area in Summit County in central Colorado. 
Reed et al. (1999, unpublished, as cited by Hodges (2000b, p. 185)) 
reported hare densities in Colorado ranging from 0.02 to 0.19 hares per 
ac (0.05 to 0.46 hares per ha). In areas used by introduced lynx in 
west-central Colorado, Zahratka and Shenk (2008, pp. 906, 910) reported 
hare densities that ranged from 0.03 to 0.5 hares per ac (0.08 to 1.32 
hares per ha) in mature Engelmann spruce-subalpine fir stands and from 
0.02 to 0.14 hares per ac (0.06 to 0.34 hares per ha) in mature 
lodgepole pine stands. The authors cautioned against comparing their 
results to other hare density estimates, as their use of the ``mean 
maximum distance moved'' method may have underestimated effective area 
trapped (Zahratka and Shenk 2008, p. 911), potentially resulting in 
overestimates of hare density. In ``purportedly good'' hare habitat 
also in west-central Colorado in the area used by introduced lynx, Ivan 
(2011c, pp. iv-v, 71, 92) estimated summer hare densities of 0.08 to 
0.27 hares per ac (0.2 to 0.66 hares per ha) in stands of ``small'' 
lodgepole pine, 0.004 to 0.01 hares per ac (0.01 to 0.03 hares per ha) 
in ``medium'' lodgepole pine, and 0.004 to 0.1 hares per ac (0.01 to 
0.26 hares per ha) in spruce-fir stands. The author reported that hare 
densities were less than 0.4 hares per ac (< 1.0 hare per ha) in all 
stand types and all seasons and, in most cases, were less than 0.12 
hares per ac (0.3 hares per ha), and no combination of survival and 
recruitment estimates from any stand type in any year would result in a 
self-sustaining hare population, though hare recruitment may have been 
underestimated (Ivan 2011c, pp. 95, 99).
    Ruggiero et al. (2000, pp. 446-447) concluded that a snowshoe hare 
density greater than 0.2 hares per ac (0.5 hares per ha) may be 
necessary for lynx persistence. Steury and Murray (2004, pp. 127, 137) 
modeled lynx and hare populations and determined that a hare density of 
0.4-0.7 hares per ac (1.1-1.8 hares per ha) would be needed for 
persistence of lynx translocated (i.e., introduced or reintroduced) to 
the southern portion of the species' range. Most hare density estimates 
for Colorado are well below those thought necessary to support an 
introduced lynx population over time (Steury and Murray 2004, entire), 
and many, even from areas considered ``good'' hare habitat, are lower 
than the density Ruggiero et al. (2000, pp. 446-447) considered 
necessary for lynx persistence.
    The generally low hare densities reported in most cases in what is 
considered good hare habitat in western Colorado and the very large 
home ranges (181 mi\2\ (470 km\2\) for females and 106 mi\2\ (273 
km\2\) for males) reported by Shenk (2008, pp. 1, 10) suggest that even 
the best potential lynx habitat in the Southern Rocky Mountains is 
marginal and unlikely to support lynx populations over time. Some of 
the lynx introduced into Colorado have dispersed into mountainous areas 
of northern New Mexico, which contain relatively small and fragmented 
areas of similar high-elevation spruce/fir and cold mixed-conifer 
habitats (U.S. Forest Service 2009, pp. 5-10). No evidence exists that 
lynx occupied these areas historically; no reproduction has been 
documented among introduced lynx that have traveled from Colorado into 
northern New Mexico; and habitats in New Mexico are thought to be 
incapable of supporting a self-sustaining lynx population (U.S. Forest 
Service 2009, pp. 2, 10, 16-17). The lack of connectivity with northern 
lynx populations (McKelvey et al. 2000a, p. 230; Devineau et al. 2010, 
p. 525; Interagency Lynx Biology Team 2013, pp. 50, 54), which is 
considered necessary for the maintenance and conservation of lynx 
populations in the contiguous United States (Interagency Lynx Biology 
Team 2013, pp. 42, 47, 54, 60, 65), further suggests that lynx in the 
Southern Rockies, in the absence of continued translocations or 
introductions of lynx, are unlikely to receive the demographic and 
genetic exchange needed to maintain lynx populations over time.
    For these reasons, the Service has determined that the Southern 
Rocky Mountains likely do not possess the physical and biological 
features essential to lynx in sufficient quantities, quality, and 
spatial arrangement to sustain lynx populations over time. Wildlife 
introductions are, by their nature, experiments whose fates are 
uncertain. However, it is always our goal for such efforts to be 
successful and, where possible, contribute to recovery of listed 
species. If Colorado's introduction effort is successful (i.e., if 
recruitment equals or exceeds combined mortality and emigration over 
the next 20 years (Shenk 2010, pp. 2, 5-6, 11)), it could contribute to 
recovery by providing an additional buffer against threats to the DPS. 
The potential contribution of Colorado to lynx recovery does not mean, 
however, that the habitat there is essential for the conservation of 
the DPS. In other words, the lynx population in Colorado is beneficial, 
but not essential, for

[[Page 59450]]

recovery. Therefore, we find that the habitat in Colorado and elsewhere 
in the Southern Rocky Mountains does not contain the essential physical 
and biological features of lynx habitat, is not essential for the 
conservation of the lynx DPS, and we are not proposing to designate 
critical habitat for the lynx DPS in the Southern Rockies. However, as 
a listed species, it should be noted that lynx in the Southern Rockies 
are afforded protection pursuant to sections 7(a)(2) and 9 of the Act. 
Section 7(a)(2) requires Federal agencies, when undertaking, funding, 
or permitting actions that may affect listed species to consult with 
the Service, and to ensure that the implementation of such actions do 
not result in jeopardy to the species. Toward that end and pursuant to 
section 7 of the Act, the Service may recommend measures to minimize 
the effects (including incidental take) of the Federal action upon 
listed species.
National Forests in Idaho and Montana
    The Montana District Court ordered the Service to determine 
specifically whether lands in the Clearwater and Nez Perce National 
Forests in Idaho, the Bitterroot National Forest in Idaho and Montana, 
the Beaverhead-Deerlodge National Forest in Montana, and additional 
parts of the Helena and Lolo National Forests (outside the areas 
currently proposed for designation) in Montana contain the physical and 
biological features essential for the conservation of the DPS. Although 
each of these areas clearly contain some (and perhaps all) of the 
physical and biological features lynx need, for the reasons discussed 
below we find no evidence that any of the areas contain the elements in 
adequate quantities, quality, and spatial arrangements to support lynx 
populations over time. We provide evidence, where available, that these 
areas were not occupied by lynx at the time of listing and are not 
currently occupied by lynx populations, and we summarize relevant 
survey results, all of which indicate that lynx do not occupy these 
areas or that the areas are lacking in either quantity or spatial 
arrangement (or both) of one or more of the essential features. 
Therefore, we determine that these areas do not contain the physical 
and biological features in adequate quantities, quality, and spatial 
arrangement, are not essential to the conservation of the lynx, and as 
a result these areas do not meet the definition of critical habitat and 
subsequently are not being proposed.
    The historical record does not suggest that these areas (outside 
those portions of the Helena and Lolo National Forests proposed for 
designation as critical habitat) ever supported lynx populations 
(McKelvey et al. 2000a, pp. 224-227). In the Recovery Outline, the 
Service classified these as ``secondary areas'' because they lacked 
evidence of lynx reproduction (U.S. Fish and Wildlife Service 2005, pp. 
4, 21). As described in detail below, recent surveys for lynx in many 
of these areas have failed to detect lynx presence, and the available 
evidence suggests these areas occasionally may provide temporary 
habitat for transient lynx dispersing from established lynx populations 
in the Northern Rocky Mountains of Canada, Idaho, and Montana, but that 
they likely do not contain all physical and biological features in 
adequate quantities and spatial arrangements to support lynx 
populations over time.
    There is no evidence that the Beaverhead-Deerlodge, Bitterroot, and 
Nez Perce National Forests were occupied by lynx at the time of 
listing, nor that they are currently occupied by lynx populations. To 
date, surveys on these National Forests, which have been conducted 
according to established protocols, have failed to detect presence of 
any individual lynx, and they provide no indication of the presence of 
lynx populations. Surveys described below were conducted according to 
National Lynx Survey (McKelvey et al. 1999, entire), and winter snow-
tracking survey (Squires et al. 2004b, entire) protocols. Snow-tracking 
surveys in particular are highly effective at detecting lynx, even when 
only a few animals inhabit the survey area (Ulizio et al. 2007, p. 5; 
Squires et al. 2012, pp. 215, 219-222).
    On the Beaverhead-Deerlodge National Forest, National Lynx Survey 
efforts in 1999-2001 detected no lynx (U.S. Forest Service 2002a, 
entire and 2002b, entire). During 2001-2005, in surveys designed to 
detect presence of lynx and wolverines, 11,220 mi (17,950 km) of winter 
snow-tracking surveys and trap route checks in the Anaconda-Pintler, 
Beaverhead, Flint Creek and Pioneer mountain ranges on the Beaverhead-
Deerlodge National Forest detected only a single ``putative'' lynx 
track, and no verified tracks (Squires et al. 2003, p. 4; Squires et 
al. 2006b, p. 15). Additional recent snow tracking surveys (Berg 2009, 
entire) also failed to detect any lynx, and the author concluded that, 
although some pockets of habitat appeared to support high densities of 
snowshoe hares, ``[m]ost of the [Beaverhead-Deerlodge National Forest] 
was and appeared to be dry lodgepole pine, which likely is not good 
lynx habitat . . .'' (Berg 2009, p. 20). During May and June of 2009, 
hair snares (642 snare-nights) and remote cameras (319 camera-nights) 
deployed in the Boulder, Flint Creek, and Pioneer mountain ranges also 
failed to detect any lynx (Porco 2009, entire). Additional hair snare 
surveys in summer 2012 similarly failed to detect lynx (Pilgrim and 
Schwartz 2013, entire; U.S. Forest Service 2013a, entire). Snow-
tracking surveys designed to detect presence of multiple forest 
carnivores, including lynx, conducted by the Idaho Department of Fish 
and Game from 2004 to 2006 detected no lynx in the Beaverhead Mountains 
Section, just west of the Beaverhead-Deerlodge National Forest (Patton 
2006, pp. 20-21, Table 11).
    On the Bitterroot National Forest, National Lynx Survey efforts in 
2000-2002 and 2010-2011 detected no lynx (U.S. Forest Service 2000, 
entire, 2002c, entire, 2003a, entire, 2003b, entire; Pilgrim 2010, 
entire; Shortsleeve 2013, pers. comm.). Snow-tracking surveys designed 
to detect presence of multiple forest carnivores, including lynx, 
conducted by the Idaho Department of Fish and Game from 2004 to 2006 
detected no lynx in the Bitterroot Mountains Section (Patton 2006, pp. 
20-21, Table 11). Additionally, among 223 vegetation plots sampled in 
2010-2012 on the Forest, only 30 (16.1%) met minimum horizontal cover 
standards for snowshoe hare/lynx habitat (U.S. Forest Service 2012, 
unpublished data).
    On the Nez Perce National Forest, winter snow-tracking surveys 
covering 448 mi (721 km) in 2007 did not detect any lynx (Ulizio et al. 
2007, entire). The authors concluded that (1) these surveys very likely 
would have detected the presence of a lynx population if one occurred 
on the Forest, (2) that the failure to detect lynx suggests that a lynx 
population does not inhabit the surveyed portion of the Forest, and (3) 
``[h]istorical sightings. . . may be the result of transient lynx 
moving through the forest, but the infrequency of such reports suggests 
lynx are incidental to the area'' (Ulizio et al. 2007, p. 5). Neither a 
partial hare-snare survey conducted in 2008 (though at fewer stations 
than recommended by the protocol) nor a partial snow-tracking survey 
conducted in 2009 (also less extensive than protocol) detected presence 
of lynx on the Forest. Snow-tracking surveys conducted according to 
established protocols and covering 553 mi (890 km) of forest roads were 
completed in 2013; these surveys also failed to detect presence of any 
lynx on the Nez Perce National Forest (U.S. Forest Service 2013b, pp. 
3-7). Snow-tracking surveys designed to detect presence of multiple 
forest carnivores, including lynx, conducted by the Idaho

[[Page 59451]]

Department of Fish and Game from 2004 to 2006 detected no lynx in the 
Clearwater Region, including parts of the Nez Perce National Forest 
(Patton 2006, p. 9, Table 2).
    The paucity of verified historical records of lynx occurrence in 
these three National Forests, and the absence of recent verified 
records, despite surveys designed to detect lynx presence, suggest 
these areas may rarely and temporarily support transient dispersing 
lynx (McKelvey et al. 2000a, pp. 224-227; Ulizio et al. 2007, p. 5). 
Based on these surveys, historical records of lynx occurrence, the 
vegetation sampling data described above (U.S. Forest Service 2012, 
unpublished data), and expert opinion on habitat quality described 
above (Ulizio et al. 2007, p. 5), the Service has determined that 
habitats on these three National Forests are not occupied by lynx 
populations and do not contain the physical and biological features in 
the appropriate quantity and spatial arrangement to be essential to 
lynx conservation. Additionally, we have determined that these areas 
are not essential to the conservation of the lynx DPS. Because we find 
that these areas do not meet the definition of critical habitat we are 
not proposing to designate the Bitterroot, Beaverhead-Deerlodge, and 
Nez Perce National Forests as critical habitat.
    We recognize that all of the Clearwater and Lolo National Forests, 
and parts of the Helena National Forest (except for the disjunct Big 
Belt and Elkhorn mountain ranges) are considered as ``occupied'' by 
lynx for purposes of consultations under section 7 of the Act. 
Occupancy in the context of section 7 consultation is intended to 
inform the ``may be present'' standard under section 7 and does not 
infer the presence of lynx populations or that habitats in these areas 
contain the physical and biological features essential to lynx in 
sufficient quantity and spatial arrangement to support a lynx 
population. For section 7 purposes, occupany is determined on a Forest-
wide basis, so that two observations anywhere on a Forest confer 
permanent ``occupied'' status to the entire Forest, even in places 
where lynx have not been documented and where no lynx populations 
occur.
    The Clearwater National Forest is in an area classified as 
secondary for lynx recovery (U.S. Fish and Wildlife Service 2005, p. 
21) because there is no record of consistent lynx presence or 
reproduction on the Forest. Snow-tracking surveys designed to detect 
presence of multiple forest carnivores, including lynx, conducted by 
the Idaho Department of Fish and Game from 2004 to 2006 detected no 
lynx in the Clearwater Region, including parts of the Clearwater 
National Forest (Patton 2006, p. 9, Table 2). Wirsing et al. (2002, 
entire) studied snowshoe hare demographics on study areas on the 
Clearwater National Forest. They concluded that: hare habitat was 
fragmented; good hare habitat was rare and occurred as small isolated 
patches; and that hares occurred at extremely low densities (0.04 hares 
per ac (0.09 per ha)) well below the range of densities typical of 
other southern hare populations, had low survival rates, and had poor 
juvenile recruitment (Wirsing et al. 2002, pp. 169-175). The authors 
identified hare predators including coyotes, raptors, mustelids, and 
bobcats (Wirsing et al. 2002, p. 172), but identified no predation 
attributable to lynx. The available evidence does not indicate that 
this area possesses the physical and biological features essential to 
the conservation of lynx in quantities and spatial arrangements 
sufficient to support a lynx population over time or be essential to 
lynx conservation. Therefore, we determine that habitats on the 
Clearwater do not meet the definition of critical habitat, and as a 
result we are not proposing to designate critical habitat on this 
National Forest.
    Portions of the Helena and Lolo National Forests are classified as 
``core areas'' for lynx recovery because they have evidence of 
consistent lynx occupancy and recent records of reproduction (U.S. Fish 
and Wildlife Service 2005, pp. 4, 21); these areas are proposed for 
designation as critical habitat. Because of this lynx occupancy, both 
Forests are designated as ``occupied'' in their entirety for section 7 
purposes, even though the remainders of these two Forests are 
considered secondary areas in the Recovery Outline (U.S. Fish and 
Wildlife Service 2005, pp. 6, 21) because they lack records of 
consistent lynx presence or reproduction. The parts of these two 
forests that are not proposed for designation do not contain the 
physical and biological features in adequate quantities, quality, and 
spatial arrangement, are not essential to the conservation of the lynx, 
and as a result these areas do not meet the definition of critical 
habitat and subsequently are not being proposed (as described below). 
Furthermore, these areas continue to lack evidence of lynx occupancy, 
and surveys (described below) have failed to detect the presence of 
lynx populations.
    On the Helena National Forest, the Big Belt (in 2002, 2003, and 
2004) and Elkhorn (in 2003) mountain ranges were surveyed according to 
the National Lynx Survey protocol (McKelvey et al. 1999, entire); no 
lynx were detected in any of these surveys (Pengeroth 2013, pers. 
comm.). On the Lolo National Forest, no lynx were detected during 941 
mi (1,514 km) of snow-tracking surveys targeting lynx in the vicinity 
of Lolo Pass in January-March 2001 (Squires et al. 2004c, p.3). More 
recently, over 2,600 mi (4,184 km) of forest carnivore snow-tracking 
surveys were conducted according to accepted protocols (Squires et al. 
2004b, entire) by highly trained technicians from 2010 to 2013 across 
much of the Forest and on some adjacent lands. These surveys resulted 
in 199 lynx detections over 4 years, only 1 of which occurred outside 
the portion of the forest designated as critical habitat in 2009 and 
again proposed for critical habitat in this rule (U.S. Forest Service 
2013c, pp. 2-3). The single detection outside the proposed critical 
habitat boundary was in an area surrounded by proposed critical habitat 
but at a slightly lower elevation (U.S. Forest Service 2013c, pp. 2, 
4). Avialable information does not indicate that the portions of the 
Helena and Lolo National Forests not proposed for critical habitat 
designation possess the physical and biological features essential to 
lynx in adequate quantities and spatial arrangements to support lynx 
over time, or that lynx populations occupy these areas or did so at the 
time of listing. As a result, these areas do not meet the definition of 
critical habitat and subsequently are not being proposed.
    Based on historical records and available survey data summarized 
above, the Service has determined that habitats on the Beaverhead-
Deerlodge, Bitterroot, Clearwater, and Nez Perce National Forests, and 
on the Helena and Lolo National Forests outside those areas proposed 
for critical habitat designation, are not occupied by lynx populations 
and were likely not occupied at the time of listing. These areas may 
occasionally host transient dispersing lynx, but the best available 
information indicates that they do not contain the physical and 
biological features essential to lynx in adequate quantity and/or 
spatial arrangement, are not essential to the conservation of the lynx, 
and as a result these areas do not meet the definition of critical 
habitat and subsequently are not being proposed. However, as described 
above for lynx introduced into Colorado and the Southern Rockies, lynx 
that may occur intermittently and infrequently as trasients or 
dispersers on these National Forests are afforded protections

[[Page 59452]]

pursuant to sections 9 and 7(a)(2) of the Act.
Northern New Hampshire and Northern Vermont
    The historic status of lynx in New Hampshire and Vermont is poorly 
understood. Prior to the listing of the DPS in 2000, the last lynx 
documented in Vermont was trapped at St. Albans in 1968 (Kart et al. 
2005, p. A4-101). In New Hampshire, surveys conducted in 1986 in high-
elevation habitats in the White Mountain region detected no lynx 
(Litvaitis et al. 1991, pp. 70, 73). In 1992, an adult lynx was killed 
by a vehicle collision in southern New Hampshire (McKelvey et al. 
2000a, p. 213). Because hare densities in the area where this lynx died 
are low and habitat conditions were considered unsuitable for home 
range establishment, this lynx was classified as a ``transient'' that 
did not belong to a resident population (Tur 2013, pers. comm.). Based 
on the best available data, we conclude that New Hampshire and Vermont 
were not occupied by lynx at the time of listing.
    Since listing, lynx occurrence in northern New Hampshire and 
Vermont was documented beginning in 2006, and breeding was first 
documented in 2009. To date, evidence of lynx reproduction in Vermont 
has been documented in 2009, 2011, and 2012, all at the Nulhegan 
National Wildlife Refuge (NWR) (Clich[eacute] 2013, pers. comm.). In 
northern New Hampshire, breeding was documented in 2010 and 2011, all 
in the area encompassing the town of Pittsburg (Staats 2013a, pers. 
comm.).
    The historic record for Vermont is scant, with only five records of 
lynx occurring from the period 1797 to 1968 and no evidence that a 
persistent breeding population of lynx ever occurred there (Kart et al. 
2005, pp. 101-104). Conversely, lynx occurred historically in central 
and northern New Hampshire. In 2003, the Service determined that, 
despite a lack of breeding records, a small resident lynx population 
likely occurred historically in New Hampshire but no longer exists (68 
FR 40087). A bounty program for lynx that persisted in New Hampshire 
until 1965, along with a lack of dispersing lynx from Quebec, and a 
loss of habitat associated with forest management practices most likely 
contributed to the extirpation of lynx from New Hampshire (Litvaitis et 
al. 1991, pp. 70, 73-74). Similarly, Brocke et al. (1993, p. 14) 
concluded that trapping mortality and the concurrent reduction in 
habitat resulting from large-scale forest harvest led to the 
extirpation of lynx from New Hampshire. While surveys to assess the 
current distribution and status of lynx in Vermont and New Hampshire 
are not yet complete, in Vermont, resident lynx are documented and 
breeding within a very small area located in the northeast corner of 
the State. In New Hampshire, survey efforts suggest that lynx are 
sparsely distributed through the northern half of the State, mostly 
likely as scattered transient animals, and breeding has been documented 
only in a very small area in the northeastern part of the State.
Eastern and Western Maine
    Historically, lynx occurred throughout Maine. Hoving et al. (2003, 
entire) assembled historical records dating to 1833 to reconstruct the 
past distribution of lynx in the State. Prior to 1913, lynx were found 
throughout the State, with the exception of coastal areas. From 1913 to 
1972, records occurred in western and northern Maine. In 1936 and 1939, 
game wardens described lynx as rare, but present, in most districts 
except along the coast (Aldous and Medall 1941, as cited in Vashon et 
al. 2012, pp. 28, 33). From 1973 to 1999, most records occurred in 
western and northern Maine, although lynx also occurred in the central 
and eastern portions of the State. Between 1995 and 1999, the Maine 
Department of Inland Fisheries and Wildlife conducted snow track 
surveys for lynx in western and northern Maine (Vashon et al. 2012 pp. 
34-35) and documented lynx only in northern Maine. Surveys conducted 
from 2003 to 2008 documented lynx in both western and northern Maine 
(Vashon et al. 2012, pp. 34-35). Surveys were not conducted in eastern 
Maine because there was no evidence that lynx occurred there.
    Hoving et al. (2003, p. 371) documented 39 historical records of 
lynx kittens; these records represent a minimum of 21 litters and span 
135 years. Most breeding was documented in northern Maine. Prior to 
listing, the last documented breeding in western Maine was observed in 
1995 and in eastern Maine in 1896 (Hoving 2001, p. 173).
    Since listing, lynx have been documented consistently in western 
and northern Maine and occasionally in central and northern parts of 
the State (Vashon et al. 2012, pp. 12, 59). Lynx breeding has been 
documented in western, northern, and eastern Maine (at a single 
location in 2010) (Vashon et al. 2012, p. 64). Lynx travel widely 
during dispersal and occasional forays outside of their home ranges 
(Vashon et al. 2012, pp. 22, 59; Maine Department of Inland Fisheries 
and Wildlife, unpublished data), which explains occasional occurrences 
outside of western and northern Maine.
    Snowshoe hares were at relatively high densities in northern Maine 
from 2001 to 2006, but declined by about 50 percent afterward (Scott 
2009, pp. 1-44; Vashon et al. 2012, p. 14). Lynx populations were 
believed to have reached the carrying capacity of the habitat in about 
2006 (Vashon et al. 2012, p. 58). At that time, lynx were likely 
dispersing at greater rates into western, central, and eastern parts of 
the State (Vashon et al. 2012, Fig. 4.2, p. 59) and were likely the 
source of lynx in New Hampshire and Vermont.
    Western and eastern Maine have the highest densities of bobcats in 
the State (Hoving 2001, pp. 54-55). Maine is at the northern edge of 
the bobcat range, and their populations decline during severe winters 
(Morris 1986, entire; Parker et al. 1983, entire). In 2008 and 2009, 
Maine experienced two severe winters with deep snow that may have 
depressed bobcat populations in western and eastern parts of the State 
at the same time that larger numbers of lynx were dispersing from 
northern Maine. These conditions may have allowed lynx to establish 
home ranges in areas formerly inhabitated by bobcats. However, it is 
uncertain whether lynx will persist in these areas as bobcat 
populations recover.
    As in Colorado, despite recent breeding by lynx in northern Vermont 
and New Hampshire and eastern and western Maine, it remains uncertain 
whether these areas contain the PCE (i.e., the physical and biological 
features essential to lynx in adequate quantity and spatial arrangement 
to support persistent populations over time). Portions of northeast 
Vermont, northern New Hampshire, and eastern and western Maine contain 
boreal forest landscapes containing a mosaic of habitats of various 
ages. Recent analysis estimated that New Hampshire contains 342 mi\2\ 
(888 km\2\) of Canada lynx habitat (Litvaitis and Tash 2005, p. A-298). 
There are no comparable lynx habitat estimates for Vermont. Hoving et 
al. (2004, Fig. 1, p. 290) predicted a low probability of lynx 
occurrence in western Maine and no lynx occurrence in eastern Maine. 
Because these areas occur at the southern extreme of the species' 
current distribution, where habitat is interspersed with northern 
hardwood forests, as well as human-dominated land cover types (e.g., 
developed areas, roads, agricultural fields, etc.), habitat quality 
(percent of conifer forest, landscape hare density, intensity of forest 
management) is likely to be lower in Vermont, New Hampshire, and 
eastern and western

[[Page 59453]]

Maine than in northern Maine. The snow regime is unsuitable for lynx in 
eastern Maine. Although potential high-quality lynx habitat in New 
Hampshire, Vermont, and western Maine is fragmented, a recently 
completed habitat connectivity model demonstrated 100 percent 
connectivity for lynx movement/dispersal between these areas and core 
areas (proposed for designation as critical habitat) in northern Maine 
(Farrell 2013, pers. comm.). Breeding lynx in Vermont and New Hampshire 
are connected to larger populations in northern Maine via western 
Maine, but they are not directly connected to Canadian populations.
    Recent modeling to determine lynx habitat connectivity in the 
Northeast suggests that the Nulhegan River Basin contains Vermont's 
best lynx habitat (Farrell 2013, pers. comm.). The 205-mi\2\ (530-
km\2\) basin includes 41 mi\2\ (106 km\2\) managed by the Service, 34 
mi\2\ (89 km\2\) managed by the Vermont Department of Natural 
Resources, and 131 mi\2\ (340 km\2\) of private commercial timber lands 
(with easement). Bobcats occur in the area at moderate densities 
(Hoving 2001, Fig. 2.5 p. 55). Snow track surveys conducted by State 
and Service personnel during the winters of 2011and 2012 (Nulhegan NWR 
only) and 2012 and 2013 (Nulhegan NWR and Victory Bog State Wildlife 
Management Area) indicate a resident population has become established 
on the NWR. In areas outside of Nulhegan NWR, the presence of sporadic 
records indicates lynx have not established home ranges and are 
considered transient or absent.
    Historical records indicate that high-elevation habitats in New 
Hampshire's White Mountains contained lynx (Silver 1957, pp. 302-311); 
however, surveys conducted during the early 1990s in the White Mountain 
National Forest did not detect the species (Litvaitis et al. 1991, p. 
15; Brocke et al. 1993, p. 14). No lynx have been detected by White 
Mountain National Forest staff during winter track surveys conducted 
since 2003 (Prout 2013, pers. comm.). However, in March 2013, New 
Hampshire Fish and Game Department staff confirmed the presence of lynx 
tracks in high elevation habitat located in the area near Franconia 
Notch. Snow surveys for lynx have not been conducted in high elevation 
habitats in western Maine.
    In addition, during snow track surveys conducted by the New 
Hampshire Fish and Game Department in 2012 and 2013, lynx were detected 
near Cambridge and Success, south of the Lake Umbagog NWR (which has 
lynx in its Maine portion). Additional records (2006-2013, n=6) occur 
as far south as Jefferson, New Hampshire, at the southern border of the 
Kilkenny Unit of the White Mountain National Forest. Lynx tracks have 
also been detected on the Pondicherry NWR, located in Whitefield, New 
Hampshire. Since 2006, New Hampshire has 18 confirmed records, totaling 
28 individual animals.
    The extent and size of habitat patches that support lynx in New 
Hampshire and western Maine are much smaller than those that occur in 
northern Maine (Litvaitis and Tash 2005, Fig. 2 and p. A-298; Robinson 
2006, Fig. 3.3, p. 99). Hoving estimated roughly 386 mi\2\ (1,000 
km\2\) of lynx habitat in New Hampshire (68 FR 40086-40087). Litvaitis 
and Tash (2005, p. A-298), analyzing potential lynx habitat in New 
Hampshire based on the Hoving lynx model, reported an area of 2,000 
mi\2\ (5,180 km\2\) with a greater than 50 percent probability of lynx 
occurrence. Within this area, ``enriched hare habitats'' (including 
high-elevation spruce-fir, clear cuts, and shrub-dominated wetlands) 
consisted of 342 mi\2\ (886 km\2\), 17 percent of the total predicted 
lynx habitat area. The authors concluded that ``the modest abundance of 
high-density hare habitat supports the notion that New Hampshire does 
not contain sufficient habitat to support a viable, stand-alone 
population of lynx. Long-term persistence of lynx in New Hampshire is 
probably dependent on immigrants and the State likely represents the 
southern limit of lynx in eastern North America'' (Litvaitis and Tash 
2005, p. A-298). Similarly, Brocke et al. (1993, pp. 1-14) suggested 
that the persistence of New Hampshire's lynx population was dependent 
on receiving dispersing animals. Therefore, persistence of lynx in New 
Hampshire relies on continuity of habitat through western Maine to the 
core area of lynx habitat in northern Maine.
    The snow regime is adequate for lynx in northern Vermont, northern 
New Hampshire, and western Maine, especially in higher elevations 
(Hoving 2001, Fig. 2.2 p. 51). Higher elevation areas experience deep, 
fluffy snow conditions that provide a competitive advantage for lynx, 
whereas shallower snow in lower elevations may provide competitive 
advantage to bobcats (Hoving 2001, Fig. 2.2, p. 51). Litvaitis and Tash 
(2005, p. A-263) modeled bobcat habitat in New Hampshire and concluded 
that most low-elevation areas that were predicted to have a higher 
probability of lynx occurrence were also predicted to have moderate-to-
high bobcat populations. Conversely, most high-elevation areas that 
were predicted to have a high probability of lynx occurrence were 
expected to be avoided by bobcats. The elevation at which snow benefits 
lynx versus bobcats in the Northeast is unknown and likely variable. 
While historical records indicate that lynx use high-elevation areas in 
the Northeast, it is unknown if high elevations support high-quality 
foraging habitat in sufficiently large areas that would support 
breeding individuals. The White Mountain National Forest has the most 
extensive high-elevation habitat in the Northeast, but only one recent 
record of lynx occurrence is available (Staats 2013b, pers. comm.). 
Lynx may utilize these habitats, although it is possible that snow 
conditions at high elevation are too severe, hare densities may be 
insufficient to support lynx (or the habitat too dense for lynx to hunt 
hares efficiently), the high elevations may not be large enough to 
support home ranges, or lynx may have to compete with bobcats, 
especially during summer months.
    Stand-level hare densities in spruce-fir forest in western Maine, 
northern New Hampshire, and Vermont should be similar to densities 
documented in northern Maine (Litvaitis and Tash 2005, p. A-297). 
However, landscape hare densities are likely lower because spruce-fir 
habitat is a lower percentage of the landscape and more fragmented than 
in core lynx habitat in northern Maine (Hoving 2001, Fig. 2.6, p. 56). 
Hare habitat modeling in western Maine indicated patchier and more 
widely distributed hare habitats compared to northern Maine due to 
differences in the size and distribution of regenerating clearcuts 
(Robinson 2006, Fig. 3.3, pp. 99, 181). These areas of western Maine 
have a higher prevalence of northern hardwoods, which support much 
lower hare densities. Snowshoe hare habitat in New Hampshire and 
Vermont is likely patchy as well.
    Carroll (2007, entire) used the Hoving lynx model as a basis to 
predict lynx distribution in the Northeast under several scenarios 
affecting forestry, trapping in Canada, and climate change. A reduced 
snow model (p. 31) predicted lynx would disappear in all of Maine and 
persist only in the higher elevation areas of the Adirondacks and White 
Mountain National Forest. However, Hoving (2001, p.76) used different 
snowfall projections and models that predict lynx would continue to 
occur in northern Maine with reduced snow. Carroll's (2007) climate 
change model was based on predicted annual snowfall for 2055. 
Predictions were derived from the output of the Parallel Climate Model, 
a general circulation model developed by a consortium of researchers in 
support of the

[[Page 59454]]

Intergovernmental Panel on Climate Change (Kiehl and Gent 2004, 
entire). The IPCC climate scenario that was used is in the intermediate 
to high ranges among the 35 scenarios evaluated by the IPCC. Because 
these predictions provided only coarse resolutions (~200 km), Carroll 
interpolated the percent change in annual snowfall predicted and 
multiplied by finer-scale data for current annual snowfall to produce a 
``sharpened'' estimate of future snowfall patterns. Carroll's modelling 
included a lake effect and thus differed slightly in output from that 
used by Hoving et al. (2005). Although climate change models are being 
refined for the Northeast, additional information is needed to 
understand what areas may support lynx in the future under a variety of 
climate change projections and to resolve high levels of uncertainty. 
In addition to the potentially conflicting climate models which make 
projecting lynx conservation into the future challenging, the 
biological response of lynx to climate change at the regional and stand 
scales is complex and poorly understood at this time.
    Due to the uncertainty regarding the long-term persistence of the 
newly established breeding areas, the relative importance of these 
areas for conservation of the DPS is unclear. These are peripheral 
boreal forest areas with higher northern hardwood composition and 
patchier habitat (Hoving 2001, Fig. 2.6, p. 56), and they represent the 
southern extent of the lynx range (Litvaitis and Tash 2005, p. A-298). 
Based on the best available data, northern Vermont and New Hampshire do 
not appear to contain adequate lynx habitat to support persistent 
populations; nor do lynx in these areas appear to be considered 
potential source populations (Litvaitis and Tash 2005, p. A-298). 
Although Brocke et al. (1993, pp. 1-14) predicted that in the absence 
of trapping, New Hampshire's lynx population would be expected to 
increase at the very modest rate of 1.65 percent per year, this 
estimate did not account for other sources of lynx mortality (i.e., 
interspecific interactions with bobcat or road mortality). Therefore, 
the Service has determined that the small number of lynx currently 
breeding in New Hampshire is unlikely to be a source population for 
other areas. Similarly, because Vermont contains even smaller amounts 
of lynx habitat, we surmise that Vermont is also unlikely to provide 
surplus animals that would disperse to other areas. Additionally, lynx 
habitat in eastern and western Maine are of lower quality (Hoving et 
al. 2004, Fig. 1, p. 290), and eastern Maine lacks a snow regime that 
favors lynx over bobcats. Western Maine is unlikely to be a source of 
lynx for other areas, but it is an important corridor between 
populations in northern Maine and New Hampshire and Vermont.
    In summary, lynx reproduction in small areas of northern Vermont, 
northern New Hampshire, and eastern and western Maine has been 
documented since 2009-2010. Although lynx were known to occur in 
Vermont and New Hampshire historically, evidence of persistent lynx 
populations is lacking. Resident lynx likely were extirpated when 
habitat was modified through forestry practices, a bounty program was 
in place that increased mortality, and the ability of animals to 
recolonize the area was compromised by regional-scale influences that 
suppressed lynx populations. Since that time, habitat has regenerated 
and source populations of lynx in Maine have recovered to the point 
where lynx have dispersed and now occur in the Vermont and New 
Hampshire part of their former range. Their recent arrival and the 
complex ecological interactions functioning at landscape scales makes 
it difficult to assess the long-term status of lynx in these areas, as 
well as their potential contribution to the conservation of the DPS. 
Lynx have had a persistent historical presence in western Maine, but no 
documented breeding until 2010; therefore, western Maine was not 
considered occupied at the time of listing. While surveys in western 
Maine are incomplete and the status of lynx in that area is not well 
known, those occurrences and habitat are contiguous with northern New 
Hampshire. However, habitat is of lower quality and interactions with 
bobcat populations are uncertain. In eastern Maine, lynx have 
sporadically occurred, but the snow regime is not suitable for long-
term persistence.
    The best available data indicates that Vermont, New Hampshire, and 
eastern Maine were not occupied by lynx at the time of listing. In 
addition, habitat within Vermont and New Hampshire is fragmented, 
landscape-level hare densities are low, and bobcat densities are 
relatively high; consequently, these areas are unlikely to support 
robust lynx populations capable of generating dispersing animals that 
could occupy other portions of the species' range. Additionally, 
evaluations of lynx and their habitats indicate that lynx populations 
in New Hampshire are reliant upon frequent dispersers from other 
populations. Because habitats in Vermont are even more localized and 
fragmented, the same situation most likely exists in that State. Within 
these areas, the status of lynx and their habitats may deteriorate 
further as a result of climate change. Taking all of these factors into 
consideration, we conclude that Vermont, New Hampshire, and eastern and 
western Maine likely do not contain the physical and biological 
features in the appropriate quantity, quality, and spatial arrangement 
to be essential to lynx conservation. Additionally, we find that these 
areas are not essential to the conservation of the lynx DPS. As a 
result, these areas do not meet the definition of critical habitat for 
the lynx DPS. Consequently, we are not proposing to designate any areas 
in New Hampshire, Vermont, or eastern or western Maine as critical 
habitat for the contiguous U.S. lynx DPS.
    When determining proposed critical habitat boundaries, we made 
every effort to avoid including developed areas such as lands covered 
by buildings, pavement, and other structures because such lands lack 
physical or biological features necessary for lynx. 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. Given the scale of the proposed lynx critical habitat units, it 
was not feasible to completely avoid inclusion of water bodies, 
including lakes, reservoirs and rivers; grasslands; or human-made 
structures such as buildings, paved and gravel roadbeds, parking lots, 
and other structures that lack the PCE for the lynx. These areas, 
including any developed areas and the land on which such structures are 
located, that exist inside proposed critical habitat boundaries are not 
proposed for designation as critical habitat. 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. 
Therefore, if the critical habitat is finalized as proposed, a Federal 
action involving these lands would not trigger section 7 consultation 
with respect to critical habitat and the requirement of no adverse 
modification unless the specific action would affect the physical or 
biological features in the adjacent critical habitat.
    We are proposing for designation of critical habitat lands that we 
have determined were occupied by lynx at the time the DPS was listed 
and which contain the PCE (sufficient quantities and spatial 
arrangements of all the physical or biological features essential to 
support lynx life-history processes). All proposed units and subunits 
contain all of the identified elements of physical

[[Page 59455]]

or biological features in adequate quantities and spatial arrangements 
and support multiple life-history processes and persistent lynx 
populations.
    The critical habitat designation is defined by the maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document in the rule portion. We include more detailed information 
on the boundaries of the critical habitat designation in the preamble 
of this document. We will make the coordinates or plot points or both 
on which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-R6-ES-2013-0101, on our Internet 
site http://www.fws.gov/montanafieldoffice, and at the Montana 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT 
above).

Proposed Revised Critical Habitat Designation

    We are proposing to designate five units as critical habitat for 
the lynx (Table 1). The critical habitat units described below 
constitute our best assessment at this time of areas: (1) We determined 
to be occupied at the time of listing, (2) all the physical and 
biological features in the appropriate quanity, quality, and spatial 
arrangement found to be essential to the conservation of the species, 
and (3) that may require special management considerations or 
protection. The five areas proposed as critical habitat are Unit 1 in 
northern Maine (Aroostook, Franklin, Penobscot, Piscataquis, and 
Somerset Counties); Unit 2 in northeastern Minnesota (Cook, 
Koochiching, Lake, and St. Louis Counties); Unit 3 in the Northern 
Rocky Mountains of northwest Montana (Flathead, Glacier, Granite, Lake, 
Lewis and Clark, Lincoln, Missoula, Pondera, Powell and Teton Counties) 
and northeast Idaho (Boundary County); Unit 4 in the North Cascade 
Mountains of north-central Washington (Chelan and Okanogan Counties); 
and Unit 5 in the Greater Yellowstone Area of southwest Montana 
(Carbon, Gallatin, Park, Stillwater, and Sweetgrass Counties) and 
northwest Wyoming (Fremont, Lincoln, Park, Sublette, and Teton 
Counties). To further understand the location of these proposed areas, 
please see the associated maps found at the end of this proposed rule 
(also available at our Web site: http://www.fws.gov/mountain-prairie/species/mammals/lynx/criticalhabitat.htm). Table 1 shows the proposed 
critical habitat units, land ownership, and the approximate area being 
proposed for designation as critical habitat. Table 2 shows proposed 
critical habitat by ownership within each State included in the 
proposed designation.

                                  Table 1--Proposed Critical Habitat Units for Canada Lynx by Ownership (mi\2\ (km\2\))
 [Area estimates reflect all land within proposed critical habitat unit boundaries, including areas considered for exclusion in accordance with section
                                                                   4(b)(2) of the Act]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                          Unit                                  Federal              State              Private           Tribal             Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................               0 (0)         823 (2,131)     10,230 (26,495)        87 (226)     11,162 (28,908)
2.......................................................      3,864 (10,007)      2,732 (7,076 )       1,473 (3,816)        78 (202)      8,147 (21,101)
3.......................................................      8,652 (22,409)           381 (986)       1,072 (2,777)       370 (958)     10,474 (27,129)
4.......................................................       1,830 (4,739)           164 (426)              4 (11)           0 (0)       1,999 (5,176)
5.......................................................      9,465 (24,514)             30 (76)           271 (702)           0 (0)      9,766 (25,293)
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................     23,811 (61,669)      4,129 (10,695)     13,050 (33,800)     535 (1,385)    41,547 (107,607)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding and because minor ``Other'' ownership is not included.


                                 Table 2--Proposed Critical Habitat for Canada Lynx by State and Ownership (mi\2\/km\2\)
 [Area estimates reflect all land within proposed critical habitat unit boundaries, including areas considered for exclusion in accordance with section
                                                                  4(b)(2) of the Act].
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       Federal              State              Private           Tribal         Other
--------------------------------------------------------------------------------------------------------------------------------------------------------
Idaho..........................................................            45 (117)          0.04 (0.1)               0 (0)           0 (0)        0 (0)
Maine..........................................................               0 (0)         823 (2,130)     10,230 (26,495)        87 (226)      22 (57)
Minnesota......................................................      3,864 (10,007)       2,732 (7,076)       1,473 (3,816)        78 (202)        0 (0)
Montana........................................................     11,326/(29,334)         395 (1,024)       1,276 (3,305)       370 (958)    0.5 (1.4)
Washington.....................................................       1,830 (4,739)           164 (426)              4 (11)           0 (0)        0 (0)
Wyoming........................................................      6,746 (17,472)             15 (38)            68 (176)           0 (0)        0 (0)
                                                                ----------------------------------------------------------------------------------------
    Total......................................................     23,811 (61,669)      4,129 (10,695)     13,050 (33,800)     535 (1,385)      23 (58)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

    We present brief descriptions below of all units, the reasons why 
they meet the definition of critical habitat for lynx, changes in the 
current proposal from the 2009 designation, and other potential changes 
that may be considered between this proposal and our subsequent final 
designation.

Unit 1: Northern Maine

    Unit 1 consists of 11,162 mi\2\ (28,908 km\2\) located in northern 
Maine in portions of Aroostook, Franklin, Penobscot, Piscataquis, and 
Somerset Counties. This area was occupied by the lynx at the time of 
listing and is currently occupied by the species (Hoving et al. 2003, 
entire; Vashon et al. 2012, pp. 12-14, 58-60; Interagency Lynx Biology 
Team 2013, pp. 39-42). This area contains the physical and biological 
features in the appropriate quantity, quality, and spatial arrangement 
to be essential to lynx conservation and as a result these areas meet 
the definition of critical habitat for the lynx DPS. Lynx in northern 
Maine have high productivity: 91 percent of available adult females 
(greater than 2years) produced litters, and litters averaged 2.83 
kittens (Vashon et al. 2005b, pp. 4-6; Vashon et al. 2012, p. 18). This 
area contains the physical and biological features essential to the

[[Page 59456]]

conservation of the lynx as it comprises the PCE and its components 
laid out in the appropriate quantity and spatial arrangement. This area 
is also important for lynx conservation because it is the only area in 
the northeastern region of the lynx's range within the contiguous 
United States that currently supports persistent breeding lynx 
populations and likely acts as a source or provides connectivity with 
Canada for more peripheral portions of the lynx's range in the 
Northeast. Timber harvest and management is the dominant land use 
within the unit; therefore, special management is required depending on 
the silvicultural practices implemented (68 FR 40075; July 3, 2003). 
Timber management practices that provide for a dense understory are 
beneficial for lynx and snowshoe hares.
    In this area, climate change is predicted to significantly reduce 
lynx habitat and population size. Carroll (2007, pp. 1100-1103) modeled 
a 59 percent decline in lynx numbers in the northeastern United States 
and eastern Canada by 2055 due to climate change, with greater 
vulnerability among small, peripheral, low-elevation populations like 
that in Maine. Under this modeled scenario, there would be difficulty 
sustaining such populations, and the lynx distribution would likely 
contract to the core of the population on the Gaspe Peninsula in 
Quebec, Canada (Carroll 2007, p. 1102). Gonzalez et al. (2007, p. 14) 
modeled potential climate-induced loss of snow and concluded that snow 
suitable for lynx may disappear from Maine entirely by the end of this 
century.
    Changing forest management practices are also likely to result in 
reduced hare and lynx habitat in this unit. Much of the lynx and hare 
habitat in this unit is the result of broad-scale clear-cut timber 
harvest in the 1970s and 1980s in response to a spruce budworm 
outbreak. These clear-cut stands are now at a successional (regrowth) 
stage (about 35 years postharvest) that features very dense conifer 
cover and provides optimal hare and lynx habitats, likely supporting 
many more hares and lynx than occurred historically. The Maine Forest 
Practices Act (1989) limited the size of clear-cuts resulting in a near 
complete shift away from clear-cuts to partial harvesting. This 
transition to partial harvest timber management is unlikely to create 
or maintain the extensive tracts of hare and lynx habitats that 
currently exist as a result of previous clear-cutting. As the clear-cut 
stands continue to age, their habitat value to hares and lynx is 
expected to decline. Even in the absence of climate change 
considerations, forest succession and reduced clearcutting are expected 
to result in a substantially smaller lynx population in this unit by 
2035 (Simons 2009, pp. 153-154, 162-165, 206, 216-220; Vashon et al. 
2012, pp. 58-60). Therefore, lack of forest management planning 
represents a habitat-related threat to lynx. Other habitat-related 
threats to lynx in this unit are traffic and development (68 FR 40075).
    The area currently proposed for designation in this unit includes 
all lands that we designated in 2009 (FR 74 8616), as well as 87 mi\2\ 
(226 km\2\) of Tribal lands and 943 mi\2\ (2,443 km\2\) of lands 
managed under the Maine Healthy Forest Reserve Program, both of which 
were excluded from the 2009 designation and which we are again 
considering excluding (see Exclusions and Government-to-Government 
Relationship with Tribes, below). It also includes 108 mi\2\ (281 
km\2\) formerly but no longer enrolled in the Healthy Forest Reserve 
Program. The proposed unit also includes additional lands in the Van 
Buren area of eastern Aroostook County (217 mi\2\ (562 km\2\)) and the 
Herseytown-Stacyville area of northern Penobscot County (304 mi\2\ (788 
km\2\)) that were not designated in 2009. New information on lynx and 
habitats in these two areas demonstrates that they contain the physical 
and biological features essential to the conservation of lynx and meet 
the criteria (above) for designation as critical habitat. Radio-
telemetry data, incidental capture of lynx in traps set for other 
species, and lynx mortalities from vehicle collisions have all recently 
documented lynx occupancy in both areas (U.S. Fish and Wildlife Service 
2013a, p. 12). Based on recent refined habitat mapping and 
understanding of lynx use of this area, we have determined that both 
proposed additions were likely occupied at the time of listing, 
although occupancy data were not available then. Both areas are within 
the ``core area'' classified in the Recovery Outline (U.S. Fish and 
Wildlife Service 2005, pp. 3-5, 21), and both are contiguous with the 
critical habitat area designated in 2009 and include similar habitats 
and snow regimes, as well as comparable hare densities (U.S. Fish and 
Wildlife Service 2013a, p. 12). The predominant land use in both areas 
is commercial timber production, which requires special management 
considerations for the conservation of lynx. The proposed Van Buren 
addition is a contiguous area of forest connecting lynx habitat in 
Maine with lynx habitats and populations in Quebec and New Brunswick.

Unit 2: Northeastern Minnesota

    Unit 2 consists of 8,147 mi\2\ (21,101 km\2\) located in 
northeastern Minnesota in portions of Cook, Koochiching, Lake, and St. 
Louis Counties, and Superior National Forest. In 2003, when we formally 
reviewed the status of the lynx, numerous verified records of lynx 
existed from northeastern Minnesota (68 FR 40076, July 3, 2003). The 
area was occupied at the time of listing and is currently occupied by 
the species (Moen et al. 2008b, pp. 29-32; Moen et al. 2010b, entire; 
Catton and Loch 2010, entire; 2011, entire; 2012, entire; Interagency 
Lynx Biology Team 2013, pp. 44-47). Lynx are currently known to be 
distributed throughout northeastern Minnesota, as has been confirmed 
through DNA analysis, radio- and GPS-collared animals, and 
documentation of reproduction (Moen et al. 2008b, entire; Moen et al. 
2010b, entire). This area contains the physical and biological features 
in the appropriate quantity, quality, and spatial arrangement to be 
essential to lynx conservation and as a result these areas meet the 
definition of critical habitat for the lynx DPS.
    This area is essential to the conservation of lynx because it is 
the only area in the Great Lakes Region for which we have evidence of 
recent lynx reproduction. It likely acts as a source or provides 
connectivity for more peripheral portions of the lynx's range in the 
region. Timber harvest and management is a dominant land use (68 FR 
40075). Therefore, special management is required depending on the 
silvicultural practices conducted. Timber management practices that 
provide for a dense understory are beneficial for lynx and snowshoe 
hares. In this area, climate change may affect lynx and their habitats; 
however, Gonzalez et al. (2007, p. 14) suggested that snow conditions 
in northern Minnesota should continue to be suitable for lynx through 
the end of this century. Fire suppression or fuels treatment, traffic 
and habitat fragmentation associated with road-building, and 
development are other habitat-related threats to lynx (68 FR 40075). 
Incidental capture of lynx in traps set for other species has been 
documented recently in Minnesota, as have lynx mortalities from vehicle 
collisions (U.S. Fish and Wildlife Service 2013d, unpubl. database).
    The area currently proposed for designation includes all lands that 
we designated in 2009 (FR 74 8616), as well as 78 mi\2\ (202 km\2\) of 
Tribal lands, which we excluded from the 2009 designation and which we 
again propose to exclude (see Government-to-

[[Page 59457]]

Government Relationship with Tribes, below). No additional areas are 
proposed for designation of critical habitat.

Unit 3: Northern Rocky Mountains

    Unit 3 consists of 10,474 mi\2\ (27,129 km\2\) located in 
northwestern Montana and a small portion of northeastern Idaho in 
portions of Boundary County in Idaho and Flathead, Glacier, Granite, 
Lake, Lewis and Clark, Lincoln, Missoula, Pondera, Powell and Teton 
Counties in Montana. It includes National Forest lands and BLM lands in 
the Garnet Resource Area. This area was occupied by lynx at the time of 
listing and is currently occupied by the species (Squires et al. 2010, 
entire; Squires et al. 2012, entire; Squires et al. 2013, entire; 
Interagency Lynx Biology Team 2013, pp. 57-61). Lynx are known to be 
widely distributed throughout this unit and breeding has been 
documented in multiple locations (Gehman et al. 2004, pp. 24-29; 
Squires et al. 2004a, pp. 8-10, 2004b, entire, and 2004c, pp. 7-10). 
This area contains the physical and biological features in the 
appropriate quantity, quality, and spatial arrangement to be essential 
to lynx conservation and as a result these areas meet the definition of 
critical habitat for the lynx DPS. This area is essential to the 
conservation of lynx because it appears to support the highest density 
lynx populations in the Northern Rocky Mountain region of the lynx's 
range. It likely acts as a source for lynx and provides connectivity to 
other portions of the lynx's range in the Rocky Mountains, particularly 
the Yellowstone area. Timber harvest and management is a dominant land 
use (68 FR 40075); therefore, special management is required depending 
on the silvicultural practices conducted. Timber management practices 
that provide for a dense understory are beneficial for lynx and 
snowshoe hares. In this area, climate change is expected to result in 
the potential loss of snow conditions suitable for lynx by the end of 
this century (Gonzalez et al. 2007, p. 14). Fire suppression or fuels 
treatment, traffic, and development are other habitat-related threats 
to lynx (68 FR 40075).
    The area currently proposed for designation includes lands that we 
designated in 2009 (FR 74 8616), as well as 370 mi\2\ (958 km\2\) of 
Tribal lands, which we excluded from the 2009 designation and which we 
again propose to exclude (see Government-to-Government Relationship 
with Tribes, below). It also includes State trust lands in western 
Montana managed in accordance with the recently finalized State of 
Montana Department of Natural Resources and Conservation Multi-species 
Habitat Conservation Plan (HCP) (Montana DNRC and U.S. Fish and 
Wildlife Service 2010, pp. 2-45--2-61, 4-27--4-36, 7-29--7-34). We are 
proposing to exclude 271 mi\2\ (703 km\2\) of lands managed under this 
HCP from designation as critical habitat in this unit (see Exclusions, 
below). The area proposed for designation in northeast Idaho has been 
adjusted to reflect improvements in lynx habitat mapping approved by 
both the USFS and the Service (U.S. Forest Service 2008b, entire), 
resulting in a reduction of about 5 mi\2\ (13 km\2\) of proposed 
critical habitat in that portion of the unit. Other National Forests 
with lands in this proposed critical habitat unit are working on 
refinements to lynx habitat mapping protocols and/or modeling. If the 
Service approves of the methodologies used to improve lynx habitat 
mapping, the results may be considered in our subsequent final critical 
habitat designation. At this time, no new areas are proposed for 
designation of critical habitat in this unit.

Unit 4: North Cascades

    Unit 4 consists of 1,999 mi\2\ (5,176 km\2\) located in north-
central Washington in portions of Chelan and Okanogan Counties and 
includes mostly Okanogan-Wenatchee National Forest lands as well as BLM 
lands in the Spokane District and Loomis State Forest lands. This area 
was occupied at the time lynx was listed and is currently occupied by 
the species (Interagency Lynx Biology Team 2013, pp. 64-65). This unit 
supports the highest densities of lynx in Washington (Stinson 2001, p. 
2). Evidence from recent research and DNA analysis shows lynx 
distributed within this unit, with breeding being documented (von 
Kienast 2003, p. 36; Koehler et al. 2008, entire; Maletzke et al. 2008, 
entire). Although researchers have fewer records in the portion of the 
unit south of Highway 20, few surveys have been conducted in this 
portion of the unit. This area contains boreal forest habitat and the 
components essential to the conservation of the lynx. Further, it is 
contiguous with the portion of the unit north of Highway 20, 
particularly in winter when deep snows close Highway 20. The northern 
portion of the unit adjacent to the Canada border also appears to 
support few recent lynx records; however, it is designated wilderness, 
so access to survey this area is difficult. This northern portion 
contains extensive boreal forest vegetation types and the components 
essential to the conservation of the lynx. Additionally, lynx 
populations exist in British Columbia directly north of this unit 
(Interagency Lynx Biology Team 2013, pp. 65).
    This area contains the physical and biological features in the 
appropriate quantity, quality, and spatial arrangement to be essential 
to lynx conservation and as a result these areas meet the definition of 
critical habitat for the lynx DPS. This area is essential to the 
conservation of lynx because it is the only area in the Cascades region 
of the lynx's range that is known to support breeding lynx populations. 
Timber harvest and management is a dominant land use; therefore, 
special management is required depending on the silvicultural practices 
conducted. Timber management practices that provide for a dense 
understory are beneficial for lynx and snowshoe hares. In this area, 
Federal land management plans are being amended to incorporate lynx 
conservation. Climate change is expected to reduce lynx habitat and 
numbers in this unit, with potential loss of snow suitable for lynx 
(Gonzalez et al. 2007, p. 14) and the potential complete disappearance 
of lynx from the area by the end of this century (Johnston et al. 2012, 
pp. 7-11). Traffic and development are other habitat-related threats to 
lynx (68 FR 40075).
    The area currently proposed for designation includes all lands that 
we designated in 2009 (FR 74 8616). It also includes 164 mi\2\ (425 
km\2\) of lands managed in accordance with the State of Washington 
Department of Natural Resources Lynx Habitat Management Plan 
(Washington DNR 2006, entire), which we excluded from the 2009 
designation and which we again propose to exclude under section 4(b)(2) 
of the Act (see Exclusions below). No additional areas are proposed for 
designation of critical habitat in this unit.

Unit 5: Greater Yellowstone Area

    Unit 5 consists of 9,765 mi\2\ (25,293 km\2\) located in 
Yellowstone National Park and surrounding lands of the Greater 
Yellowstone Area in southwestern Montana and northwestern Wyoming. 
Lands in this unit are found in Carbon, Gallatin, Park, Stillwater, and 
Sweetgrass Counties in Montana; and Fremont, Lincoln, Park, Sublette, 
and Teton Counties in Wyoming. This area was occupied by lynx at the 
time of listing and is currently occupied by the species (Interagency 
Lynx Biology Team 2013, pp. 57-61). This area contains the physical and 
biological features in the appropriate quantity, quality, and spatial 
arrangement to be essential to

[[Page 59458]]

lynx conservation and as a reuult these areas meet the definition of 
critical habitat for the lynx DPS. The Greater Yellowstone Area is 
naturally marginal lynx habitat with highly fragmented foraging habitat 
(68 FR 40090; 71 FR 66010, 66029; 74 FR 8624, 8643-8644; Hodges et al. 
2009, entire). For this reason lynx home ranges in this unit are likely 
to be larger and incorporate large areas of non-foraging matrix 
habitat. Climate change is expected to reduce lynx habitat and numbers 
in this unit, with potential loss of snow suitable for lynx over most 
of the area by the end of this century, though with potential snow 
refugia in the Wyoming Range (Gonzalez et al. 2007, p. 14). Fire 
suppression or fuels treatment, traffic, and development are other 
habitat-related threats to lynx in this unit (68 FR 40075). Therefore, 
special management is required depending on the fire suppression and 
fuels treatment practices conducted and the design of highway 
development projects.
    The area currently proposed for designation includes all lands that 
we designated in 2009 (FR 74 8616). It also includes a small amount of 
State trust lands in southwestern Montana managed in accordance with 
the recently finalized State of Montana Department of Natural Resources 
and Conservation Multi-species Habitat Conservation Plan (HCP) (Montana 
DNRC and U.S. Fish and Wildlife Service 2010, pp. 2-45--2-61, 4-27--4-
36, 7-29--7-34). We are proposing to exclude 1.3 mi\2\ (3.3 km\2\) of 
lands managed under this HCP from designation as critical habitat in 
this unit (see Exclusions, below). The proposed unit also includes 
additional lands in Lincoln, western Sublette, and Teton counties that 
were not designated in 2009. In particular, we propose to add 77 mi\2\ 
(200 km\2\) of lands in the northeast part of Grand Teton National Park 
and 182 mi\2\ (470 km\2\) of BLM lands east of the Bridger-Teton 
National Forest. Both areas are within the ``core area'' classified in 
the Recovery Outline (U.S. Fish and Wildlife Service 2005, pp. 3-5, 
21), both are contiguous with the critical habitat area designated in 
2009, and both include similar habitats and snow regimes. Both areas 
have recent verified occurrences of lynx, and are immediately adjacent 
to an area known to support a small but persistent lynx subpopulation.
    The areas proposed in Grand Teton National Park have had verified 
lynx occurrences in the vicinity in the past 5 years (U.S. Fish and 
Wildlife Service 2013b, p. 1). The proposed BLM lands are considered 
occupied and are composed of high-quality lynx/snowshoe hare habitat 
including mature spruce/fir, mixed conifer/aspen, and aspen stands with 
documented corresponding high densities of hares (U.S. Fish and 
Wildlife Service 2013c, pp. 1-2). These BLM lands also include a 
documented movement corridor (often referred to as Hoback Rim or 
Bondurant) through this area that may be of key importance to lynx 
moving through the landscape from the WY Range to the Togwotee Pass 
area to the north (U.S. Fish and Wildlife Service 2013c, p. 1). This 
information suggests that these areas contain the physical and 
biological features essential to the conservation of lynx and meet the 
criteria (above) for designation as critical habitat (U.S. Fish and 
Wildlife Service 2013b, entire and 2013c, entire). As in Unit 3, some 
National Forests with lands in this proposed critical habitat unit are 
working on refinements to lynx habitat mapping protocols and/or 
modeling. To the extent that we receive the refinements in time, we 
will evaluate the results for consideration in our subsequent final 
critical habitat designation.
    This proposed critical habitat designation is designed for the 
conservation of the physical and biological features essential to the 
conservation of the lynx and necessary to support lynx life-history 
functions. The physical and biological features described in the PCE 
defined above comprise the essential features of boreal forest that (1) 
provide adequate prey resources necessary for the persistence of local 
populations (subpopulations of the metapopulation) of lynx through 
reproduction; (2) allow subpopulations to act as possible sources of 
lynx for more peripheral boreal forested areas; (3) enable the 
maintenance of lynx home ranges; (4) include snow conditions for which 
lynx are highly specialized that give lynx a competitive advantage over 
potential competitors; (5) provide denning habitat; and (6) provide 
habitat connectivity for travel within home ranges, exploratory 
movements, and dispersal within critical habitat units. Lynx use 
habitat at a landscape scale, which means that no single locality 
(small scale) contains all of the required habitat elements that lynx 
need to ensure survival and reproduction. Therefore, individual 
portions of each unit (for example, an individual forest stand) may not 
contain all of the physical and biological features listed above; 
however, each unit, as a landscape, does contain each of the physical 
and biological features in adequate quantities and spatial arrangements 
to support lynx populations over time, and it is the landscape as a 
whole, therefore, that contains the PCE.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    Decisions by the 5th and 9th Circuit 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, 442 (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, we 
determine destruction or adverse modification on the basis of whether, 
with implementation of the proposed Federal action, the affected 
critical habitat would continue to serve its intended conservation role 
for the species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, Tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat, and actions 
on State, Tribal, local, or private lands that are not Federally funded 
or authorized, do not require section 7 consultation.

[[Page 59459]]

    As a result of section 7 consultation, we document compliance with 
the requirements 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 and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species and/or avoid 
the likelihood of destroying or adversely modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 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 agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies sometimes 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.

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. Activities that may destroy or 
adversely modify critical habitat are those that alter the physical or 
biological features to an extent that appreciably reduces the 
conservation value of critical habitat for Canada lynx. As discussed 
above, the role of critical habitat is to support life-history needs of 
the species and provide for the conservation of the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for the lynx. These activities include, but are not 
limited to:
    (1) Actions that would reduce or remove understory vegetation 
within boreal forest stands on a scale proportionate to the large 
landscape used by lynx. Such activities could include, but are not 
limited to, forest stand thinning, timber harvest, and fuels treatment 
of forest stands. These activities could significantly reduce the 
quality of snowshoe hare habitat such that the landscape's ability to 
produce adequate densities of snowshoe hares to support persistent lynx 
populations is at least temporarily diminished.
    (2) Actions that would cause permanent loss or conversion of the 
boreal forest on a scale proportionate to the large landscape used by 
lynx. Such activities could include, but are not limited to, 
recreational area developments; certain types of mining activities and 
associated developments; and road building. Such activities could 
eliminate and fragment lynx and snowshoe hare habitat.
    (3) Actions that would increase traffic volume and speed on roads 
that divide lynx critical habitat. Such activities could include, but 
are not limited to, transportation projects to upgrade roads or 
development of a new tourist destination. These activities could reduce 
connectivity within the boreal forest landscape for lynx, and could 
result in increased mortality of lynx within the critical habitat 
units, because lynx are highly mobile and frequently cross roads during 
dispersal, exploratory movements, or travel within their home ranges.
    In matrix habitat, activities that change vegetation structure or 
condition would not be considered an adverse effect to lynx critical 
habitat unless those activities would create a barrier or impede lynx 
movement between patches of foraging habitat and between foraging and 
denning habitat within a potential home range, or if they would 
adversely affect adjacent foraging habitat or denning habitat. For 
example, a pre-commercial thinning or fuels reduction project in matrix 
habitat would not adversely affect lynx critical habitat, and would not 
require consultation. However, a new highway passing through matrix 
habitat that would impede lynx movement may be an adverse effect to 
lynx critical habitat, and would require consultation. The scale of any 
activity should be examined to determine whether direct or indirect 
alteration of habitat would occur to the extent that the value of 
critical habitat for the survival and recovery of lynx would be 
appreciably diminished.
    If you have questions regarding whether specific activities may 
constitute destruction or adverse modification of critical habitat, 
contact the Supervisor of the appropriate Ecological Services Field 
Office (see list below).

------------------------------------------------------------------------
             State                      Address             Phone No.
------------------------------------------------------------------------
Maine.........................  17 Godfrey Drive,         (207) 866-3344
                                 Suite 2,
                                 Orono, ME 04473.
Minnesota.....................  4101 American             (612) 725-3548
                                 Boulevard East,
                                 Bloomington,
                                 Minnesota 55425.
Montana.......................  585 Shepard Way,          (406) 449-5225
                                 Helena, Montana 59601.
Idaho and Washington..........  11103 E. Montgomery       (509) 893-8015
                                 Drive, Spokane,
                                 Washington 99206.
Wyoming.......................  5353 Yellowstone Road,    (307) 772-2374
                                 Suite 308A, Cheyenne,
                                 Wyoming 82009.
------------------------------------------------------------------------


[[Page 59460]]

    All of the units proposed as critical habitat, as well as specific 
areas that are considered for exclusion under section 4(b)(2) of the 
Act (below), contain features essential to the conservation of the lynx 
DPS. All units are within the geographical range of the DPS, and all 
are currently occupied by the species based on surveys and research 
documenting the presence and reproduction of lynx (68 FR 40076, July 3, 
2003). Under section 7 of the Act, Federal agencies already consult 
with us on activities in areas currently occupied by the lynx, or if 
the species may be affected by the action, to ensure that their actions 
do not jeopardize the continued existence of the lynx.

Exemptions

Application of Section 4(a)(3) 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:
    (1) An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
    (2) A statement of goals and priorities;
    (3) A detailed description of management actions to be implemented 
to provide for these ecological needs; and
    (4) 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) 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 geographic areas owned 
or controlled by the Department of Defense, 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.''
    There are no Department of Defense lands with a completed INRMP 
within the critical habitat designation and, therefore, no analysis of 
potential exclusions under section 4(a)(3) of the Act is necessary.

Exclusions

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

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat if she determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless she determines, based 
on the best scientific data available, that the failure to designate 
such area as critical habitat will result in the extinction of the 
species. In making that determination, the statute on its face, as well 
as the legislative history, are clear that the Secretary has broad 
discretion regarding which factor(s) to use and how much weight to give 
to any factor.
    In considering whether to exclude a particular area from the 
designation, we identify the benefits of including the area in the 
designation, identify the benefits of excluding the area from the 
designation, and evaluate whether the benefits of exclusion outweigh 
the benefits of inclusion. If the analysis indicates that the benefits 
of exclusion outweigh the benefits of inclusion, the Secretary may 
exercise her discretion to exclude the area only if such exclusion 
would not result in the extinction of the species.
    When identifying the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive from the 
protection from adverse modification or destruction as a result of 
actions with a Federal nexus; the educational benefits of mapping 
essential habitat for recovery of the listed species; and any benefits 
that may result from a designation due to State or Federal laws that 
may apply to critical habitat.
    When identifying the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation; the continuation, strengthening, or encouragement of 
partnerships; or implementation of a management plan that provides 
equal to or more conservation than a critical habitat designation would 
provide.
    In the case of lynx, the benefits of critical habitat include 
public awareness of lynx presence and the importance of habitat 
protection, and in cases where a Federal nexus exists, increased 
habitat protection for lynx due to the protection from adverse 
modification or destruction of critical habitat. In practice, a Federal 
nexus exists primarily on Federal lands or for projects undertaken by 
Federal agencies. Since lynx were listed in 2000, we have had few 
projects on privately owned lands that had a Federal nexus to trigger 
consultation under section 7 of the Act. On Federal lands we have been 
consulting with Federal agencies on their effects to lynx since lynx 
were listed. These consultations have resulted in a series of 
comprehensive conservation plans for Federal lands over much of the 
range.
    When we evaluate the existence of a conservation plan when 
considering the benefits of exclusion, we consider a variety of 
factors, including but not limited to, whether the plan is finalized; 
how it provides for the conservation of the essential physical or 
biological features; whether there is a reasonable expectation that the 
conservation management strategies and actions contained in a 
management plan will be implemented into the future; whether the 
conservation strategies in the plan are likely to be effective; and 
whether the plan contains a monitoring program or adaptive management 
to ensure that the conservation measures are effective and can be 
adapted in the future in response to new information.
    After identifying the benefits of inclusion and the benefits of 
exclusion, we carefully weigh the two sides to evaluate whether the 
benefits of exclusion outweigh those of inclusion. If our analysis 
indicates that the benefits of exclusion outweigh the benefits of 
inclusion, we then determine whether exclusion would result in 
extinction. If exclusion of an area from critical habitat will result 
in extinction, we will not exclude it from the designation.
    Based on the information provided by entities seeking exclusion, as 
well as any additional public comments received, we will evaluate 
whether certain lands in the proposed critical habitat units are 
appropriate for exclusion from the final designation pursuant to 
section 4(b)(2) of the Act. If the analysis indicates that the benefits 
of excluding lands from the final designation outweigh the benefits of

[[Page 59461]]

designating those lands as critical habitat, then the Secretary may 
exercise her discretion to exclude the lands from the final 
designation.
    After considering the following areas under section 4(b)(2) of the 
Act, we are considering excluding them from the critical habitat 
designation for lynx. In accordance with the President's memorandum of 
April 29, 1994 (Government-to-Government Relations with Native American 
Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation 
and Coordination With Indian Tribal Governments), the Department of the 
Interior's manual at 512 DM 2, and Secretarial Order 3206 of June 5, 
1997 (American Indian Tribal Rights, Federal-Tribal Trust 
Responsibilities, and the Endangered Species Act), we are considering 
excluding Tribal lands from the critical habitat designation (see also 
Government-to-Government Relationship with Tribes, below).
    We are also considering excluding from critical habitat designation 
the following lands based on the management plans that govern 
activities on them: (1) lands in Maine managed in accordance with the 
Natural Resources Conservation Service's (NRCS) Healthy Forest Reserve 
Program (75 FR 6539), (2) State lands in Washington managed in 
accordance with the State of Washington Department of Natural Resources 
(DNR) Lynx Habitat Management Plan for DNR-managed Lands (Washington 
DNR 2006, entire), and (3) State lands in western Montana managed in 
accordance with the Montana Department of Natural Resources and 
Conservation (DNRC) Forested State Trust Lands Habitat Conservation 
Plan (HCP) (Montana DNRC and U.S. Fish and Wildlife Service 2010, 
entire). Table 3 below provides approximate areas (mi\2\, km\2\) of 
lands that meet the definition of critical habitat but which we are 
considering excluding from the final critical habitat rule under 
section 4(b)(2) of the Act. For additional details on these plans, see 
Exclusions Based on Other Relevant Impacts, below.

                        Table 3--Areas Considered for Exclusion by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
                                                      Areas meeting the definition
              Unit                   Specific area       of critical habitat, in        Areas considered for
                                                              mi\2\ (km\2\)          exclusion, in mi\2\ (km\2\)
----------------------------------------------------------------------------------------------------------------
1. Maine........................  Tribal Lands:                       87.2 (225.9)                  87.2 (225.9)
                                   Houlton Band of
                                   Maliseet Indians,
                                   Aroostook Band of
                                   Micmac Indians,
                                   Passamaquoddy
                                   Tribe, Penobscot
                                   Indian Nation.
1. Maine........................  Maine Healthy                    943.2 (2,443.0)               943.2 (2,443.0)
                                   Forest Reserve
                                   Program.
2. Minnesota....................  Tribal Lands:                       77.9 (201.9)                  77.9 (201.9)
                                   Grand Portage
                                   Reservation, Bois
                                   Forte
                                   Reservation--Verm
                                   illion Lake
                                   District.
3. Northern Rocky Mountains.....  Tribal Lands:                      369.8 (957.7)                 369.8 (957.7)
                                   Flathead
                                   Reservation.
3. Northern Rocky Mountains.....  Montana DNRC Multi-                271.4 (703.0)                 271.4 (703.0)
                                   species Habitat
                                   Conservation Plan.
4. North Cascade Mountains......  Washington DNR                     164.2 (425.2)                 164.2 (425.2)
                                   Lynx Habitat
                                   Management Plan.
5. Greater Yellowstone Area.....  Montana DNRC Multi-                    1.3 (3.3)                     1.3 (3.3)
                                   species Habitat
                                   Conservation Plan.
----------------------------------------------------------------------------------------------------------------

    If these areas are excluded from the final designation, a total of 
1,915 mi\2\ (4,960 km\2\) would be excluded from the critical habitat 
designation, reducing the total area proposed for designation to 39,632 
mi\2\ (102,647 km\2\), which woud be 632 mi\2\ (1,637 km\2\)--1.6 
percent--larger that the area we designated in 2009. However, we 
specifically solicit comments on the inclusion or exclusion of such 
areas. In the paragraphs below, we provide a more detailed analysis of 
our consideration of exclusion of these lands under section 4(b)(2) of 
the Act.
Exclusions Based on Economic Impacts
    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In our draft (73 
FR 62450) and final (Industrial Economics, Inc. 2008, entire) economic 
analyses of the 2009 final revised critical habitat designation, we 
evaluated the potential economic effects on small business entities 
from conservation actions related to the listing of the Canada lynx and 
revised designation of the species' critical habitat. The activities 
affected by Canada lynx conservation efforts may include land 
development, transportation and utility operations, and conservation on 
public and Tribal lands. The following is a summary of the information 
contained in the final economic analysis:
(a) Development
    According to the final economic analysis, Canada lynx development-
related costs accounted for less than 1 percent of forecast incremental 
costs, and were estimated at $8,130 (in 2008 dollars) over 20 years. 
The costs consisted of administrative costs of conducting consultations 
under section 7 of the Act on development projects. As a result of this 
information, we determined and certified that the final revised 
designation was not anticipated to have a significant economic impact 
on a substantial number of small businesses with respect to development 
activities.
(b) Forest Management
    Potential costs to forest management in designated habitat 
accounted for another 16 percent of forecast costs. Undiscounted costs 
were estimated at $233,000 (in 2008 dollars) over 20 years. The costs 
consisted of administrative costs of conducting consultations under 
section 7 of the Act on forest management. These costs were expected to 
be borne by Federal and State governments, private timber landowners, 
Tribal landowners, and other private landowners across the units of the 
designation. The administrative costs would be divided among many 
entities and projects over a 20-year period. As a result of this 
information, we determined and certified that the final revised 
designation was not anticipated to have a significant economic impact 
on small forest management businesses.
(c) Recreation
    Future costs associated with managing recreation accounted for an 
additional 19 percent of forecast costs.

[[Page 59462]]

Costs were estimated to be $285,000 (in 2008 dollars) over 20 years. 
The costs consisted of administrative costs of conducting consultations 
under section 7 of the Act associated with managing recreation (i.e., 
reductions of snowmobile opportunities) in Unit 4 (North Cascades). 
Incremental costs would be incurred by State and Federal agencies. The 
final economic analysis specifically addressed the potential impacts to 
recreational snowmobilers and supporting businesses in Washington State 
(and elsewhere) and concluded that significant economic or other social 
impacts were not anticipated (Industrial Economics, Inc. 2008, pp. 6-
3--6-16). As a result of this information, we determined and certified 
that the final revised designation was not anticipated to have a 
significant economic impact on a substantial number of small recreation 
businesses.
(d) Lynx Management Plans
    Future costs associated with development of lynx management plans 
accounted for approximately one percent of forecast costs. Costs were 
estimated to be $12,300 (in 2008 dollars) over 20 years. The costs 
consisted of administrative costs of conducting consultations under 
section 7 of the Act on lynx management plans by Federal agencies. As a 
result of this information, we determined and certified that the final 
revised designation of critical habitat was not anticipated to have a 
significant economic impact on a substantial number of small 
businesses.
(e) Mining/Oil and Gas
    Future costs associated with mining and oil and gas exploration and 
development activities accounted for an additional 8 percent of 
forecast costs. Costs were estimated at $115,000 (in 2008 dollars) over 
20 years. The costs consisted of administrative costs of conducting 
consultations under section 7 of the Act on mining and oil and gas 
projects by Federal agencies in Units 2, 4, and 5. As a result of this 
information, we determined and certified that the final revised 
designation of critical habitat was not anticipated to have a 
significant economic impact on a substantial number of small mining or 
oil and gas businesses.
    We are not proposing to exclude any areas under section 4(b)(2) 
based solely on economic impacts. However, to evaluate potential 
economic impacts of this proposed revised critical habitat designation, 
we will update and revise the 2008 economic analysis based on public 
comment, evaluation of potential impacts of proposed additions to the 
2009 critical habitat designation as described in this proposed rule, 
and to reflect current dollar values. The 2008 economic analysis is 
available for downloading from the Internet at http://www.regulations.gov, or by contacting the Montana Ecological Services 
Field Office directly (see FOR FURTHER INFORMATION CONTACT section). 
During the development of a final designation, we will consider 
economic impacts, public comments, and other new information, and areas 
may be excluded from the final critical habitat designation under 
section 4(b)(2) of the Act and our implementing regulations at 50 CFR 
424.19.
Exclusions Based on National Security Impacts
    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the Department of Defense (DOD) where a 
national security impact might exist. In preparing this proposal, we 
have determined that the lands within the proposed designation of 
critical habitat for lynx are not owned or managed by the Department of 
Defense, and, therefore, we anticipate no impact on national security. 
Consequently, the Secretary does not propose to exert her discretion to 
exclude any areas from the final designation based on impacts on 
national security.
Exclusions Based on Other Relevant Impacts
    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors including whether the 
landowners have developed any HCPs or other management plans for the 
area, or whether there are conservation partnerships that would be 
encouraged by designation of, or exclusion from, critical habitat. In 
addition, we look at any Tribal issues, and consider the government-to-
government relationship of the United States with Tribal entities. We 
also consider any social impacts that might occur because of the 
designation.
Land and Resource Management Plans, Conservation Plans, or Agreements 
based on Conservation Partnerships
    We consider a current land management or conservation plan (HCPs as 
well as other types) to provide adequate management or protection if it 
meets the following criteria:
    (1) The plan is complete and provides a conservation benefit for 
the species and its habitat;
    (2) There is a reasonable expectation that the conservation 
management strategies and actions will be implemented for the 
foreseeable future, based on past practices, written guidance, or 
regulations; and
    (3) The plan provides conservation strategies and measures 
consistent with currently accepted principles of conservation biology.
    We have made the preliminary determination that the Maine Healthy 
Forest Reserve Program (HFRP), the State of Washington Department of 
Natural Resources (DNR) Lynx Habitat Management Plan for DNR-managed 
Lands, and the State of Montana Department of Natural Resources and 
Conservation (DNRC) Forested State Trust Lands Habitat Conservation 
Plan (HCP) fulfill the above criteria, and are considering the 
exclusion of the non-Federal lands covered by these plans that provide 
for the conservation of lynx.
Maine Healthy Forest Reserve Program (HFRP)
    In 2003, Congress passed the Healthy Forest Restoration Act. Title 
V of this Act designates a Healthy Forest Reserve Program with 
objectives to: (1) Promote the recovery of threatened and endangered 
species, (2) improve biodiversity, and (3) enhance carbon 
sequestration. In 2006, Congress provided the first funding for the 
HFRP, and Maine, Arkansas, and Mississippi were chosen as pilot States 
to receive funding through their respective Natural Resources 
Conservation Service (NRCS) State offices. Based on a successful pilot 
program, in 2008, the HFRP was reauthorized as part of the Farm Bill, 
and in 2010, NRCS published a final rule in the Federal Register (75 FR 
6539) amending regulations for the HFRP based on provisions amended by 
the bill.
    In 2006 and 2007, the NRCS offered the HFRP to landowners in the 
proposed Canada lynx critical habitat unit in Maine to promote 
development of Canada lynx forest management plans. At that time, five 
landowners enrolled in the Maine HFRP--the Passamaquoddy Tribe (42.8 
mi\2\; 110.9 km\2\), The Nature Conservancy (284.5 mi\2\; 736.9 km\2\), 
the Forest Society of Maine as conservation easement holder for the 
Merriweather LLC-West Branch Project (444.2 mi\2\; 1,150.4 km\2\), 
Katahdin Forest Products (213.4 mi\2\; 552.6 km\2\), and Elliotsville 
Plantation, Inc., (84.9 mi\2\; 219.9 km\2\). Collectively, the 
landowners signed contracts (with NRCS) committing to developing lynx 
forest management plans on 1,069.8 mi\2\ (2,770.7 km\2\). However, one 
of the

[[Page 59463]]

landowners has since discontinued enrollment in the program. Because of 
that and other mapping refinements, the amount of land currently 
managed in accordance with Maine HFRP is 943.2 mi\2\ (2,443.0 km\2\), 
or 8.5 percent of the total proposed critical habitat in Unit 1. Lynx 
maintain large home ranges; therefore, forest management plans at large 
landscape scales will provide substantive recovery benefits to lynx.
    The NRCS requires that lynx forest management plans must be based 
on the Service's ``Canada Lynx Habitat Management Guidelines for 
Maine'' (McCollough 2007, entire). These guidelines were developed from 
the best available science on lynx management for Maine and have been 
revised as new research results became available. The guidelines 
require maintenance of prescribed hare densities that have resulted in 
reproducing lynx populations in Maine. The guidelines are:
    1. Avoid upgrading or paving dirt or gravel roads traversing lynx 
habitat. Avoid construction of new high-speed/high-traffic-volume roads 
in lynx habitat. Desired outcome: Avoid fragmenting potential lynx 
habitat with high-traffic/high-speed roads.
    2. Maintain through time at least one lynx habitat unit of 35,000 
ac (14,164 ha) (~1.5 townships) or more for every 200,000 ac (80,937 
ha) (~9 townships) of ownership. At any time, about 20 percent of the 
area in a lynx habitat unit should be in the optimal mid-regeneration 
conditions (see Guideline 3). Desired outcome: Create a landscape that 
will maintain a continuous presence of a mosaic of successional stages, 
especially mid-regeneration patches that will support resident lynx.
    3. Employ silvicultural methods that will create regenerating 
conifer-dominated stands 12-35 ft (3.7-10.7 m) in height with high stem 
density (7,000-15,000 stems/ac; 2,800-6,000 stems/ha) and horizontal 
cover above the average snow depth that will support greater than 2.7 
hares/ac (1.1 hares/ha). Desired outcome: Employ silvicultural 
techniques that create, maintain, or prolong use of stands by high 
populations of snowshoe hares.
    4. Maintain land in forest management. Development and associated 
activities should be consolidated to minimize direct and indirect 
impacts. Avoid development projects that occur across large areas, 
increase lynx mortality, fragment habitat, or result in barriers that 
affect lynx movements and dispersal. Desired outcome: Maintain the 
current amount and distribution of commercial forest land in northern 
Maine. Prevent forest fragmentation and barriers to movements. Avoid 
development that introduces new sources of lynx mortality.
    5. Encourage coarse woody debris for den sites by maintaining 
standing dead trees after harvest and leaving patches (at least .75 ac; 
.30 ha) of windthrow or insect damage. Desired outcome: Retain coarse 
woody debris for denning sites.
    Notably, HFRP forest management plans must provide a net 
conservation benefit for lynx, which will be achieved by employing the 
lynx guidelines, identifying baseline habitat conditions, and meeting 
NRCS standards for forest plans. Plans must meet NRCS HFRP criteria and 
guidelines and comply with numerous environmental standards. NEPA 
compliance will be completed for each plan. The NRCS held public 
informational sessions about the HFRP and advertised the availability 
of funds. Plans must be reviewed and approved by the NRCS with 
assistance from the Service. The details of the plans are proprietary 
and will not be made public per NRCS policy.
    Plans must be developed for a forest rotation (70 years) and 
include a decade-by-decade assessment of the location and anticipated 
condition of lynx habitat on the ownership. Some landowners are 
developing plans exclusively for lynx, and others are combining lynx 
management (umbrella species for young forest) with pine marten 
(umbrella species for mature forest) and other biodiversity objectives. 
Broad public benefits will derive from these plans, including benefits 
to many species of wildlife that share habitat with the lynx. 
Landowners are writing their own plans. The Nature Conservancy 
contracted with the University of Maine, Department of Wildlife Ecology 
to develop a lynx-pine marten plan that serves as a model for lynx/
biodiversity forest planning and will be shared with other northern 
Maine landowners.
    Landowners who are enrolled with the NRCS commit to a 10-year 
contract. Landowners must complete their lynx forest management plans 
within 2 years of enrollment. Currently, two plans are completed and 
two are in the final stage of editing. The majority (50 to 60 percent) 
of HFRP funds are withheld until plans are completed. By year 7, 
landowners must demonstrate on-the-ground implementation of their plan. 
The NRCS will monitor and enforce compliance with the 10-year 
contracts. At the conclusion of the 10-year cost share contract, we 
anticipate that Safe Harbor Agreements or other agreements to provide 
regulatory assurances will be developed by all landowners as an 
incentive to continue implementing the plans.
    We completed a programmatic biological opinion for the HFRP in 2006 
that assesses the overall effects of the program on lynx habitat and on 
individual lynx and provides the required incidental take coverage. 
Separate biological opinions will be developed under this programmatic 
opinion for each of the four enrollees. These tiered opinions will 
document environmental baseline, net conservation benefits, and 
incidental take for each landowner. If additional HFRP funding is made 
available to Maine in the future, new enrollees will be tiered under 
this programmatic opinion. This programmatic opinion will be revised as 
new information is obtained, or if new rare, threatened, or endangered 
species are considered for HFRP funding.
    Commitments to the HFRP are strengthened by several other 
conservation efforts. The Nature Conservancy land enrolled in the HFRP 
is also enrolled in the Forest Stewardship Council (FSC) forest 
certification program, which requires safeguards for threatened and 
endangered species. The Forest Society of Maine is under contract to 
manage a conservation easement held by the State of Maine on the 
Katahdin Forest Management lands, which is also enrolled in the HFRP. 
This easement requires that threatened and endangered species be 
protected and managed. The Forest Society of Maine also holds a 
conservation easement on the Merriweather LLC--West Branch property, 
which contains requirements that threatened and endangered species be 
protected and managed. These lands are also certified under the 
Sustainable Forestry Initiative and FSC, which require that there be 
programs for threatened and endangered species. The Passamaquoddy 
enrolled lands are managed as trust lands by the Bureau of Indian 
Affairs, and projects occurring on those lands are subject to NEPA 
review and section 7 consultation.
    In the final revised critical habitat designation, published in the 
Federal Register on February 25, 2009 (74 FR 8649-8652), we determined 
that the benefits of excluding lands managed in accordance with the 
Maine HFRP outweighed the benefits of including them in the 
designation, and that doing so would not result in extinction of the 
species. We, therefore, again consider excluding 943.2 mi\2\ (2,443.0 
km\2\) of lands currently managed in accordance with the Maine HFRP 
from the revised lynx critical habitat designation. However, in the 
final rule, we will again

[[Page 59464]]

weigh the benefits of inclusion versus exclusion of these lands in the 
final critical habitat designation.
State of Washington Department of Natural Resources Lynx Habitat 
Management Plan for DNR-managed Lands (WDNR LHMP)
    The WDNR LHMP encompasses 197 mi\2\ (510 km\2\) of WDNR-managed 
lands distributed throughout north-central and northeastern Washington 
in areas delineated as Lynx Management Zones in the Washington State 
Lynx Recovery Plan (Stinson 2001, p. 39; Washington DNR 2006, pp. 5-
13). Of the area covered by the plan, 164.2 mi\2\ (425.2 km\2\) 
overlaps the area proposed for designation as critical habitat. The 
WDNR LHMP was finalized in 2006, and is a revision of the lynx plan 
that WDNR had been implementing since 1996. The 1996 plan was developed 
as a substitute for a species-specific critical habitat designation 
required by Washington Forest Practices rules in response to the lynx 
being State-listed as threatened (Washington DNR 2006, p. 5). The 2006 
WDNR LHMP provided further provisions to avoid the incidental take of 
lynx (Washington DNR 2006, p. 6). WDNR is committed to following the 
LHMP until 2076, or until the lynx is delisted (Washington DNR 2006, p. 
6). WDNR requested that lands subject to the plan be excluded from 
critical habitat.
    The WDNR LHMP contains measures to guide WDNR in creating and 
preserving quality lynx habitat through its forest management 
activities. The objectives and strategies of the LHMP are developed for 
multiple planning scales (ecoprovince and ecodivision, Lynx Management 
Zone, Lynx Analysis Unit (LAU), and ecological community), and include:
    1. Encouraging genetic integrity at the species level by preventing 
bottlenecks between British Columbia and Washington by limiting size 
and shape of temporary non-habitat along the border and maintaining 
major routes of dispersal between British Columbia and Washington;
    2. Maintaining connectivity between subpopulations by maintaining 
dispersal routes between and within zones and arranging timber harvest 
activities that result in temporary non-habitat patches among 
watersheds so that connectivity is maintained within each zone;
    3. Maintaining the integrity of requisite habitat types within 
individual home ranges by maintaining connectivity between and 
integrity within home ranges used by individuals and/or family groups; 
and
    4. Providing a diversity of successional stages within each LAU and 
connecting denning sites and foraging sites with forested cover without 
isolating them with open areas by prolonging the persistence of 
snowshoe hare habitat and retaining coarse woody debris for denning 
sites (Washington DNR 2006, p. 29).
    The LHMP identifies specific guidelines to achieve the objectives 
and strategies at each scale; it also describes how WDNR will monitor 
and evaluate the implementation and effectiveness of the LHMP 
(Washington DNR 2006, pp. 29-63). WDNR has been managing for lynx for 
almost two decades, and the Service has concluded that the management 
strategies implemented are effective.
    In the final revised critical habitat designation, published in the 
Federal Register on February 25, 2009 (74 FR 8657-8658), we determined 
that the benefits of excluding lands managed in accordance with the 
WDNR LHMP outweighed the benefits of including them in the designation, 
and that doing so would not result in extinction of the species. We, 
therefore, again consider excluding 164.2 mi\2\ (425.2 km\2\) of lands 
managed in accordance with the WDNR LHMP from the revised lynx critical 
habitat designation. However, in the final rule, we will again weigh 
the benefits of inclusion versus exclusion of these lands in the final 
critical habitat designation.
State of Montana Department of Natural Resources and Conservation 
Forested State Trust Lands Habitat Conservation Plan (MDNRC HCP)
    The Montana DNRC worked closely with the Service in developing and 
completing NEPA analysis on this multi-species HCP (Montana DNRC and 
U.S. Fish and Wildlife Service 2010, entire). It includes a Lynx 
Conservation Strategy that minimizes impacts of forest management 
activities on lynx, complements lynx conservation objectives set forth 
in the States' Comprehensive Fish and Wildlife Conservation Strategy 
(Montana Department of Fish, Wildlife and Parks 2005, entire), and 
describes conservation commitments that are based on recent information 
from lynx research in Montana (Montana DNRC and U.S. Fish and Wildlife 
Service 2010, pp. 2-45--2-61). It also commits to active lynx 
monitoring and adaptive management programs (Montana DNRC and U.S. Fish 
and Wildlife Service 2010, pp. 4-27--4-37).
    In our biological opinion regarding potential impacts to lynx of 
implementation of the HCP, the Service concluded that the HCP ``. . . 
promotes the conservation of lynx and their habitat through increased 
conservation commitments by DNRC for forest management practices, 
maintenance of the habitat mosaic, structure, and components required 
to support lynx and their primary prey, the snowshoe hare, monitoring, 
and adaptive management'' (U.S. Fish and Wildlife Service 2011, p. III-
94). We determined that the proposed action is not likely to jeopardize 
the continued existence of Canada lynx within the contiguous U.S. DPS 
and that forest management activities managed under the conservation 
commitments of the DNRC HCP would not appreciably reduce the likelihood 
of survival and recovery of Canada lynx (U.S. Fish and Wildlife Service 
2011, p. III-94). Therefore, we propose to exclude 271.4 mi\2\ (703.0 
km\2\) of forested State Trust lands in western Montana managed in 
accordance with the DNRC HCP from the revised lynx critical habitat 
designation in Unit 3, and 1.3 mi\2\ (3.3 km\2\) in southwest Montana 
from designation in Unit 5. However, we will weigh the benefits of 
inclusion versus exclusion of these lands in the final critical habitat 
designation.
Tribal Lands
    Tribal lands in Maine, Minnesota, and Montana fall within the 
boundaries of the proposed critical habitat designation in the Maine, 
Minnesota, and Northern Rocky Mountains units. These Tribal lands 
include those of the Houlton Band of Maliseet Indians, Aroostook Band 
of Micmac Indians, Passamaquoddy Tribe, and Penobscot Indian Nation in 
Maine (Unit 1), Grand Portage Indian Reservation and Bois Forte Indian 
Reservation--Vermillion Lake District in Minnesota (Unit 2), and the 
Flathead Indian Reservation in Montana (Unit 3). The amount of Tribal 
lands that occur within the proposed designation is relatively small in 
size, totaling approximately 534.9 mi\2\ (1,385.4 km\2\), or 1.3 
percent of the total proposed designation. The areas being considered 
for exclusion includes 87.2 mi\2\ (226 km\2\) in Maine, 77.9 mi\2\ (202 
km\2\) in Minnesota, and 369.8 mi\2\ (958 km\2\) in Montana. In the 
final rule designating revised critical habitat, published in the 
Federal Register on February 25, 2009 (74 FR 8648-8649), we determined 
that the benefits of excluding Tribal lands in Maine, Minnesota, and 
Montana outweighed the benefits of including them. We determined that 
exclusion of Tribal lands from the designation of critical habitat for 
the lynx will not result in the extinction of the species because the 
Houlton Band of Maliseet

[[Page 59465]]

Indians, Aroostook Band of Micmac Indians, Passamaquoddy Tribe, 
Penobscot Indian Nation, Grand Portage Indians, Bois Forte Indians, and 
Flathead Indian Reservation Tribes implement programs for the 
conservation of the species, and physical and biological features 
essential to it, in occupied areas. The protections afforded to the 
lynx under the jeopardy standard will remain in place for the areas 
considered for exclusion from revised critical habitat. Therefore, and 
in light of Secretarial Order 3206 and Tribal management of lynx and 
their habitat, we are considering excluding these Tribal lands from the 
revised lynx critical habitat designation. (See also Government-to-
Government Relationship with Tribes, below).

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific information available and 
to consider the economic and other relevant impacts of designating a 
particular area as critical habitat. We may exclude areas from critical 
habitat upon a determination that the benefits of such exclusions 
outweigh the benefits of specifying such areas as critical habitat. We 
cannot exclude such areas from critical habitat when such exclusion 
will result in the extinction of the species concerned.
    We prepared a final economic analysis to evaluate the potential 
economic impacts of our 2009 critical habitat designation. To ensure 
that we adequately consider the economic impacts of the current 
proposed designation, we will prepare an economic analysis of this 
proposed designation and make it available for public comment. The 
economic analysis will address issues raised by the court that were 
described earlier in this proposed rule.

Peer Review

    In accordance with our joint policy on peer review 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, and analyses. We have invited these peer reviewers to comment 
during this public comment period.
    We will consider all comments and information received during this 
comment period on this proposed rule during our preparation of a final 
determination. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    Section 4(b)(5) of 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 sent to the address shown in FOR 
FURTHER INFORMATION CONTACT. We will schedule public hearings on this 
proposal, if any are requested, and announce the dates, times, and 
places of those hearings, as well as how to obtain reasonable 
accommodations, in the Federal Register and local newspapers at least 
15 days before the hearing.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA has determined that this rule is not 
significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.) as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include such businesses as manufacturing and mining concerns with fewer 
than 500 employees, wholesale trade entities with fewer than 100 
employees, retail and service businesses with less than $5 million in 
annual sales, general and heavy construction businesses with less than 
$27.5 million in annual business, special trade contractors doing less 
than $11.5 million in annual business, and forestry and logging 
operations with fewer than 500 employees and annual business less than 
$7 million. To determine whether small entities may be affected, we 
will consider the types of activities that might trigger regulatory 
impacts under this designation as well as types of project 
modifications that may result. In general, the term ``significant 
economic impact'' is meant to apply to a typical small business firm's 
business operations.
    Importantly, the incremental impacts of a rule must be both 
significant and substantial to prevent certification of the rule under 
the RFA and to require the preparation of an initial regulatory 
flexibility analysis. If a substantial number of small entities are 
affected by the proposed critical habitat designation, but the per-
entity economic impact is not significant, the Service may certify. 
Likewise, if the per-entity economic impact is likely to be 
significant, but the number of affected entities is not substantial, 
the Service may also certify.
    Under the RFA, as amended, and following recent court decisions, 
Federal agencies are required to evaluate the potential incremental 
impacts of rulemaking only on those entities directly regulated by the 
rulemaking itself, and not the potential impacts to indirectly affected 
entities. The regulatory mechanism through which critical habitat 
protections are realized is section 7 of the Act, which requires 
Federal agencies, in

[[Page 59466]]

consultation with the Service, to ensure that any action authorized, 
funded, or carried by the Agency is not likely to adversely modify 
critical habitat. Therefore, only Federal action agencies are directly 
subject to the specific regulatory requirement (avoiding destruction 
and adverse modification) imposed by critical habitat designation. 
Under these circumstances, it is our position that only Federal action 
agencies will be directly regulated by this designation. Therefore, 
because Federal agencies are not small entities, the Service certifies 
that the proposed critical habitat rule will not have a significant 
economic impact on a substantial number of small entities.
    In conclusion, based on our interpretation of directly regulated 
entities under the RFA and relevant case law, this designation of 
critical habitat will directly regulate only Federal agencies, which 
are not by definition small business entities. And as such, we certify 
that, if promulgated, this designation of critical habitat will not 
have a significant economic impact on a substantial number of small 
business entities. Therefore, an initial regulatory flexibility 
analysis is not required.

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. As described above, the final rule designating revised 
critical habitat for lynx, published in the Federal Register on 
February 25, 2009 (74 FR 8616), was considered a significant regulatory 
action under E.O. 12866 due to potential novel legal and policy issues. 
OMB's guidance in M-01-27 for implementing this Executive Order 
outlines nine outcomes that may constitute ``a significant adverse 
effect'' when compared to no regulatory action. The final economic 
analysis found that none of these outcomes would result from the 
critical habitat designation for lynx (Industrial Economics, Inc., 
2008, refer to Appendix B). The costs consisted of administrative costs 
of conducting consultations under section 7 of the Act on mining and 
oil and gas projects by Federal agencies in Units 2, 4, and 5. As such, 
we do not expect the designation of this proposed critical habitat to 
significantly affect energy supplies, distribution, or use. Therefore, 
this action is not a significant energy action, and no Statement of 
Energy Effects is required. However, we will further evaluate this 
issue as we conduct our revised economic analysis, and review and 
revise this assessment as warranted.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) 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 that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule would significantly or 
uniquely affect small governments. The 2008 final economic analysis for 
the final rule designating revised critical habitat, published in the 
Federal Register on February 25, 2009 (74 FR 8616), evaluated potential 
impacts of critical habitat designation for the Canada lynx on timber 
management, recreation, land development, mining, oil and gas 
development, and the development of management plans (Industrial 
Economics, Inc., 2008, entire). The analysis estimated costs of the 
rule to be $2.11 million at then-present value over a 20-year period 
($142,000 annualized) assuming a 3 percent discount rate, and $1.49 
million ($141,000 annualized) assuming a 7 percent discount rate (all 
values are in 2008 dollars). Most of the impacts were expected to 
affect Federal agencies through administrative costs associated with 
consultations under section 7 of the Act. Impacts on small governments 
were not anticipated, or they were anticipated to be passed through to 
consumers. The SBA does not consider the Federal Government to be a 
small governmental jurisdiction or entity. Consequently, we do not 
believe that the designation of critical habitat for the Canada lynx 
will significantly or uniquely affect small government entities. As 
such, a Small Government Agency Plan is not required. However, we will 
further evaluate this issue as we revise and update the economic 
analysis to address this proposed designation, and we will review and 
revise this assessment if appropriate.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), this rule is not anticipated to have significant takings 
implications. As discussed above, the designation of critical habitat 
affects only Federal actions. Critical habitat designation does not 
affect landowner actions that do not require Federal funding or 
permits, nor does it preclude development of habitat conservation 
programs or issuance of

[[Page 59467]]

incidental take permits to permit actions that do require Federal 
funding or permits to go forward. Due to current public knowledge of 
the species protections and the prohibition against take of the species 
both within and outside of the proposed areas, we do not anticipate 
that property values will be affected by the critical habitat 
designation. However, we have not yet completed the economic analysis 
for this proposed rule. Once the economic analysis is available, we 
will review and revise this preliminary assessment as warranted, and 
prepare a Takings Implication Assessment.

Federalism--Executive Order 13132

    In accordance with Executive Order 13132 (Federalism), this 
proposed rule does not have significant Federalism effects. A 
Federalism summary impact statement is not required. In keeping with 
Department of the Interior and Department of Commerce policy, we 
requested information from, and coordinated development of, this 
proposed critical habitat designation with appropriate State resource 
agencies in Maine, Minnesota, Montana, Idaho, Washington, and Wyoming. 
The designation of critical habitat in areas currently occupied by the 
lynx may impose nominal additional regulatory restrictions to those 
currently in place and, therefore, may have little incremental impact 
on State and local governments and their activities. The designation 
may have some benefit to these governments because the areas that 
contain the physical or biological features essential to the 
conservation of the species are more clearly defined, and the elements 
of the features 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--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the 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. To 
assist the public in understanding the habitat needs of the species, 
the rule identifies the elements of physical or biological features 
essential to the conservation of the species. The designated areas of 
critical habitat are presented on maps, and the rule provides several 
options for the interested public to obtain more detailed location 
information, if desired.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain 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 (42 U.S.C. 4321 et seq.)

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with 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)). However, when the 
range of the species includes States within the Tenth Circuit, such as 
that of the Canada lynx, under the Tenth Circuit ruling in Catron 
County Board of Commissioners v. U.S. Fish and Wildlife Service, 75 
F.3d 1429 (10th Cir. 1996), we will undertake a NEPA analysis for 
critical habitat designation. We completed a NEPA analysis for the 2009 
designation; we will update and revise that analysis based on the 
current proposal and notify the public of the availability of the draft 
environmental assessment for this proposal when it is finished.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that Tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes.
    Tribal lands in Maine, Minnesota, and Montana fall within the 
boundaries of the proposed critical habitat designation in the Maine, 
Minnesota, and Northern Rocky Mountains units. Tribal lands that fall 
within the proposed designation include those of the Houlton Band of 
Maliseet Indians, Aroostook Band of Micmac Indians, Passamaquoddy 
Tribe, and Penobscot Indian Nation in Maine (Unit 1), Grand Portage 
Indian Reservation and Bois Forte Indian Reservation--Vermillion Lake 
District in Minnesota (Unit 2), and the Flathead Indian Reservation in 
Montana (Unit 3). During development of the 2009 final rule, we 
contacted and met with a number of Tribes to discuss the proposed 
designation, and we also received comments from numerous Tribes 
requesting that their lands not be designated as critical habitat 
because of their sovereign rights, in addition to concerns about 
economic impacts and the effect on their ability to manage natural 
resources. As described above (see Application of Section 4(b)(2) of 
the Act--Exclusions Based on Other Relevant Impacts), we determined in 
the 2009 final rule that the benefits of excluding these Tribal lands 
from the proposed lynx critical habitat designation outweighed the 
benefits of including them, and that doing so would not result in 
extinction of the species.

[[Page 59468]]

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in 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.

References Cited

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

Authors

    The primary authors of this package are the staff members of the 
Montana Fish and Wildlife Office, the Maine Fish and Wildlife Office, 
and the New England Fish andWildlife 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

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

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

0
2. In Sec.  17.11(h), revise the entry for ``Lynx, Canada'' under 
``Mammals'' in the List of Endangered and Threatened Wildlife to read 
as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                       Species                                                   Vertebrate
------------------------------------------------------                        population where                                 Critical
                                                          Historic range       endangered or        Status     When listed     habitat     Special rules
           Common name              Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mammals
 
                                                                      * * * * * * *
Lynx, Canada....................  Lynx canadensis....  U.S.A. (AK, CO, ID,  Where found within   T...........  692........  17.95(a).....  17.40(k)
                                                        ME, MI, MN, MT,      contiguous U.S.A.
                                                        NH, NY, OR, UT,
                                                        VT, WA, WI, WY),
                                                        Canada,
                                                        circumboreal.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

0
3. In Sec.  17.95, amend paragraph (a) by revising the entry for 
``Canada Lynx (Lynx canadensis)'', to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

    (a) Mammals.
* * * * *
Canada Lynx (Lynx canadensis)
    (1) Critical habitat units are depicted on the maps below for the 
following States and counties:
    (i) Idaho: Boundary County;
    (ii) Maine: Aroostook, Franklin, Penobscot, Piscataquis and 
Somerset counties;
    (iii) Minnesota: Cook, Koochiching, Lake, and St. Louis counties;
    (iv) Montana: Carbon, Flathead, Gallatin, Glacier, Granite, Lake, 
Lewis and Clark, Lincoln, Missoula, Park, Pondera, Powell, Stillwater, 
Sweetgrass, and Teton counties;
    (v) Washington: Chelan and Okanogan counties; and
    (vi) Wyoming: Fremont, Lincoln, Park, Sublette, and Teton counties.
    (2) Within these areas the primary constituent element for the 
Canada lynx is boreal forest landscapes supporting a mosaic of 
differing successional forest stages and containing:
    (i) Presence of snowshoe hares and their preferred habitat 
conditions, which include dense understories of young trees, shrubs or 
overhanging boughs that protrude above the snow, and mature 
multistoried stands with conifer boughs touching the snow surface;
    (ii) Winter conditions that provide and maintain deep fluffy snow 
for extended periods of time;
    (iii) Sites for denning that have abundant coarse woody debris, 
such as downed trees and root wads; and
    (iv) Matrix habitat (e.g., hardwood forest, dry forest, non-forest, 
or other habitat types that do not support snowshoe hares) that occurs 
between patches of boreal forest in close juxtaposition (at the scale 
of a lynx home range) such that lynx are likely to travel through such 
habitat while accessing patches of boreal forest within a home range.
    (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 
[INSERT THE EFFECTIVE DATE OF THE FINAL RULE].
    (4) Critical habitat map units. Data layers defining map units were 
created using a USA Contiguous Albers Equal Area Conic projection. The 
maps in this entry, as modified by any accompanying regulatory text, 
establish the boundaries of the critical habitat designation. The 
coordinates or plot points or both on which each map is based are 
available to the public at the Service's internet site, http://www.fws.gov/montanafieldoffice/, at http://www.regulations.gov at 
Docket No. FWS-R6-ES-2013-0101) and at the field office responsible for 
this designation. You may obtain field office location information by 
contacting one of the Service regional offices, the addresses of which 
are listed at 50 CFR 2.2.

[[Page 59469]]

    (5) Note: Index map of critical habitat for Canada lynx follows: 
    [GRAPHIC] [TIFF OMITTED] TP26SE13.001
    

[[Page 59470]]


    (6) Unit 1: Maine. Map of Unit 1, Maine, follows: 
    [GRAPHIC] [TIFF OMITTED] TP26SE13.002
    

[[Page 59471]]


    (7) Unit 2: Minnesota. Map of Unit 2, Minnesota, follows: 
    [GRAPHIC] [TIFF OMITTED] TP26SE13.003
    

[[Page 59472]]


    (8) Unit 3: Northern Rockies. Map of Unit 3, Northern Rockies, 
follows: 
[GRAPHIC] [TIFF OMITTED] TP26SE13.004


[[Page 59473]]


    (9) Unit 4: North Cascades. Map of Unit 4, North Cascades, follows: 

[GRAPHIC] [TIFF OMITTED] TP26SE13.005


[[Page 59474]]


    (10) Unit 5: Greater Yellowstone Area. Map of Unit 5, Greater 
Yellowstone Area, follows: 
[GRAPHIC] [TIFF OMITTED] TP26SE13.006

* * * * *

    Dated: September 16, 2013.
Michael J. Bean,
Acting Principal Deputy Assistant Secretary for Fish and Wildlife and 
Parks.
[FR Doc. 2013-23189 Filed 9-25-13; 8:45 am]
BILLING CODE 4310-55-P