[Federal Register Volume 78, Number 192 (Thursday, October 3, 2013)]
[Rules and Regulations]
[Pages 61506-61589]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-23552]
[[Page 61505]]
Vol. 78
Thursday,
No. 192
October 3, 2013
Part III
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for Taylor's Checkerspot Butterfly and Streaked Horned Lark;
Final Rule
Federal Register / Vol. 78 , No. 192 / Thursday, October 3, 2013 /
Rules and Regulations
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R1-ES2013-0009; 4500030114]
RIN 1081-AZ36
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Taylor's Checkerspot Butterfly and Streaked Horned
Lark
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service, designate critical
habitat for the Taylor's checkerspot butterfly (Euphydryas editha
taylori) and streaked horned lark (Eremophila alpestris strigata) under
the Endangered Species Act of 1973, as amended (Act). In total,
approximately 1,941 acres (786 hectares) in Island, Clallam, and
Thurston Counties in Washington, and in Benton County in Oregon, fall
within the boundaries of the critical habitat designation for Taylor's
checkerspot butterfly. Approximately 4,629 acres (1,873 hectares) in
Grays Harbor, Pacific, and Wahkiakum Counties in Washington, and in
Clatsop, Columbia, Marion, Polk, and Benton Counties in Oregon, fall
within the boundaries of the critical habitat designation for streaked
horned lark. The effect of this regulation is to designate critical
habitat for the Taylor's checkerspot butterfly and streaked horned lark
under the Act for the conservation of the species.
DATES: This rule is effective on November 4, 2013.
ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov and at the Washington Fish and Wildlife Office.
Comments and materials we received, as well as supporting documentation
used in preparing this final rule, are available for public inspection,
by appointment, during normal business hours, at: U.S. Fish and
Wildlife Service, Washington Fish and Wildlife Office, 510 Desmond
Drive SE., Suite 102, Lacey, WA 98503-1263. The office can be reached
by telephone at 360-753-9440 or by facsimile at 360-753-9008.
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.regulations.gov at
Docket No. FWS-R1-ES-2013-0009 and at http://www.fws.gov/wafwo/TCBSHL.html, or, by appointment, at the Washington Fish and Wildlife
Office (see FOR FURTHER INFORMATION CONTACT). Any additional tools or
supporting information that we developed 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 at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Ken Berg, Manager, U.S. Fish and
Wildlife Service, Washington Fish and Wildlife Office, 510 Desmond
Drive, Suite 102, Lacey, WA 98503-1263; by telephone 360-753-9440; or
by facsimile 360-753-9405. Persons who use a telecommunications device
for the deaf (TDD) may 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 an endangered or threatened
species requires critical habitat to be designated, to the maximum
extent prudent and determinable. Elsewhere in today's issue of the
Federal Register, we list the Taylor's checkerspot butterfly as an
endangered species and the streaked horned lark as a threatened
species. Designations and revisions of critical habitat can only be
completed by issuing a rule.
Section 4(b)(2) of the Act states that the Secretary shall
designate 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. Additionally, the Act sets
forth the requirement to finalize rules within 1 year of proposal.
This rule designates critical habitat for the Taylor's checkerspot
butterfly and streaked horned lark. On October 11, 2012, we published
in the Federal Register (77 FR 61937) a proposed rule to list the
Taylor's checkerspot butterfly and streaked horned lark and to
designate critical habitat for these subspecies. The critical habitat
areas we are designating in this final rule constitute our current best
assessment of the areas that meet the definition of critical habitat
for the Taylor's checkerspot butterfly and streaked horned lark. We are
designating as critical habitat:
Approximately 1,941 acres (ac) (786 hectares (ha)) in
three units for the Taylor's checkerspot butterfly in Island, Clallam,
and Thurston Counties in Washington; and in Benton County in Oregon.
Approximately 4,629 ac (1,873 ha) in two units for the
streaked horned lark in Grays Harbor, Pierce, Pacific, and Wahkiakum
Counties in Washington; and in Clatsop, Columbia, Marion, Polk, and
Benton Counties in Oregon.
We have prepared an economic analysis of the designation of
critical habitat. We have prepared an analysis of the probable economic
impacts of the critical habitat designations and related factors. We
announced the availability of the draft economic analysis (DEA) in the
Federal Register on April 3, 2012 (78 FR 20074), allowing the public to
provide comments on our analysis. We have incorporated the comments and
have completed the final economic analysis (FEA) concurrently with this
final determination.
Peer review and public comment. We sought comments from independent
specialists to ensure that our designation is based on scientifically
sound data and analyses. We obtained opinions from two knowledgeable
individuals with scientific expertise to review our technical
assumptions and analysis, and to determine whether or not we had used
the best available information. These peer reviewers concurred with our
methods and conclusions, and provided additional information,
clarifications, and suggestions to improve this final rule. Information
we received from peer review is incorporated in this final designation.
We also considered all comments and information we received from the
public during the comment period.
Previous Federal Actions
All previous Federal actions are described in the listing
determination for the Taylor's checkerspot butterfly and streaked
horned lark, which is published elsewhere in today's Federal Register.
Background
For information related to the listing of the species, see the
final rule listing Taylor's checkerspot butterfly as an endangered
species and the streaked horned lark as a threatened species, which is
published elsewhere in today's Federal Register.
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
designation of critical habitat for the Taylor's checkerspot butterfly
and streaked horned lark during two comment periods. The first comment
period,
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associated with the publication of the proposed rule (77 FR 61937;
October 11, 2012), opened on October 11, 2012, and closed on December
10, 2012. We then made available the draft economic analysis (DEA) of
the proposed critical habitat designation and reopened the comment
period on the proposed rule for an additional 30 days from April 3,
2013, to May 3, 2013 (78 FR 20074; April 3, 2013). We also contacted
appropriate Federal, State, tribal, county, and local agencies;
scientific organizations; and other interested parties and invited them
to comment on the proposed rule and the draft economic analysis. We
held three public information workshops and a public hearing in April
2013, on the proposed rule to list the subspecies and the associated
critical habitat designations.
During the two public comment periods, we received close to 100
comment letters and emails from individuals and organizations, as well
as speaker testimony at the public hearing held on April 18, 2013.
These comments addressed the proposed critical habitat or proposed
listing (or both) for Taylor's checkerspot butterfly and streaked
horned lark. We received comment letters from two peer reviewers for
Taylor's checkerspot butterfly and three peer reviewers for streaked
horned lark, and also received comment letters from three State
agencies, one Native American tribe, and seven Federal agencies,
including the Department of the Army and Department of the Air Force.
We coordinated the proposed critical habitat with the federally
recognized Shoalwater Bay Tribe on a government-to-government basis 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; and the relevant
provision of the Departmental Manual of the Department of the Interior
(512 DM 2).
We contacted the only tribe potentially affected by the proposed
designation (the Shoalwater Bay Tribe) and coordinated with them to
discuss their ongoing or future management strategies for the Taylor's
checkerspot butterfly and streaked horned lark.
All substantive information provided during comment periods has
either been incorporated directly into this final designation or is
addressed below. Comments we received are grouped into general issues
specifically relating to the proposed critical habitat designation for
the Taylor's checkerspot butterfly and streaked horned lark, and are
addressed in the following summary and incorporated into the final rule
as appropriate.
Comments From Peer Reviewers
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited expert opinion from four knowledgeable
individuals with scientific expertise that included familiarity with
the Taylor's checkerspot butterfly and its habitats, biological needs,
and threats, and from three knowledgeable individuals with scientific
expertise that included familiarity with the streaked horned lark and
its habitats, biological needs, and threats. We received responses from
two of the peer reviewers for the Taylor's checkerspot butterfly. Both
peer reviewers felt that the proposed rule was a thorough description
of the status of Taylor's checkerspot butterfly. Both reviewers
commented that they considered the proposed rule well researched and
well written, and one commenter found the rule comprehensively
represented the current scientific knowledge for the taxon. The two
peer reviewers made no substantive comments relevant to the critical
habitat designation for the Taylor's checkerspot butterfly.
We received responses from three of the peer reviewers for the
streaked horned lark. Two of the peer reviewers felt that the proposed
rule was a thorough description of the status of the streaked horned
lark, and that our assessment of the primary constituent elements of
critical habitat was correct. Two peer reviewers made several
substantive comments relevant to the proposed critical habitat
designation for the streaked horned lark, which we respond to below and
also in the Comments from the Public section in cases where we received
a similar comment from the public. Our requests for peer review are
limited to a request for review of the merits of the scientific
information in our documents; if peer reviewers have volunteered their
personal opinions on matters not directly relevant to the science of
our designation, we do not respond to those comments here.
Streaked Horned Lark
(1) Comment: One peer reviewer stated that the proposed designation
of critical habitat was lacking formal agreements for lark conservation
with land owners and managers of sites proposed for critical habitat,
or at sites the peer reviewer believes should have been proposed as
critical habitat.
Our Response: Our requests for peer review are limited to a request
for review of the scientific information in our documents. In this case
the peer reviewer has offered his opinion on a non-scientific issue;
however, management agreements are not a requirement for critical
habitat designation. We will seek agreements with land owners and
managers on lands designated as critical habitat and on other lands
that are important to conservation of the streaked horned lark as we
initiate a recovery program for the bird, but such agreements are not
relevant to the designation of critical habitat unless we are
considering whether to exclude an area from the designation pursuant to
section 4(b)(2) of the Act. We did consider the additional sites the
peer reviewer suggested should have been proposed as critical habitat;
however, we concluded that the areas suggested did not meet our
definition of critical habitat for the streaked horned lark.
(2) Comment: One peer reviewer commented on our lack of discussion
of wintering habitat requirements for the streaked horned lark. The
peer reviewer suggested that if wintering habitats are the same as
habitats used for breeding, we should state that explicitly. The peer
reviewer also commented on the fact that all of the proposed critical
habitat sites were identified as either breeding habitats or breeding
and wintering habitats, but there were no sites identified as solely
wintering sites.
Our Response: Our current knowledge of habitat use by the streaked
horned lark indicates that there are no sites that are used solely for
wintering habitat. There are sites in Washington that have breeding
populations in the spring and summer, but that are then abandoned by
the streaked horned lark in the fall and winter. Other breeding sites
on the Washington coast, in the Columbia River, and in the Willamette
Valley are also used as wintering habitats. We have amended the
description of critical habitat selection criteria to be clearer, as
requested by the peer reviewer.
(3) Comment: Two peer reviewers and several commenters expressed
concern about relying on airports for streaked horned lark recovery
because although airports harbor populations of larks, the sites may
act as ``population sinks'' due to the constant habitat disturbance,
hazing, and threat of aircraft strikes.
Our Response: We share this concern. Streaked horned larks occur on
airports because management to control hazardous wildlife and to
maintain safe conditions for aviation has incidentally created suitable
habitat for the subspecies; however, airports are not ideal locations
for focusing recovery efforts for the streaked horned lark. First, the
birds are at risk of mortality
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from plane collisions, and have frequently been documented in bird
strikes at airports (Cleary and Dolbeer 2005, p. 101). Secondly,
Federal Aviation Administration (FAA) regulations require airports to
take immediate action to alleviate wildlife hazards whenever they are
detected (14 CFR 139.337). This requirement to maintain airfields free
of wildlife hazards would severely limit the potential to increase
streaked horned lark populations on airports. Streaked horned larks at
airports are therefore subject to the combined threats of plane strikes
and constant management to minimize bird populations; although airports
currently support some relatively large populations of the subspecies,
airports are clearly not ideal for conservation and recovery efforts
aimed at further increasing abundance of the bird. Airports will
continue to be important for the consistent habitats they provide for
some populations of the streaked horned lark, and we will work with
airports to maintain stable populations of the subspecies. Our main
recovery efforts for the streaked horned lark, however, will need to
focus on establishing new populations and managing for the subspecies
at locations where population growth is an acceptable management goal
for the site.
(4) Comment: One peer reviewer asked if industrial lands may be
population sinks (i.e., they provide attractive locations for breeding
but do not contribute to population growth), given their frequent
disturbance without regard to the effect on the streaked horned lark,
and further inquired if we had considered the possible long-term
effects of the activities exempted in the special rule. The peer
reviewer suggested that perhaps we should not encourage maintenance of
sink habitats.
Our Response: At this point, we do not know whether industrial
lands function as sink habitats for breeding streaked horned larks; we
will focus on gaining a better understanding of lark population
dynamics in these habitats in the recovery program for the bird. We
agree that this will be an important issue as we identify habitats that
have the potential for contributing to the long-term conservation of
the subspecies. We acknowledged this concern in response to another
comment as well (see our response to Comment 3, above).
(5) Comment: One peer reviewer and one commenter stated the
designation of Coffeepot Island as critical habitat for the streaked
horned lark is inconsistent with the rationale for other habitats
proposed for designation (i.e., it is currently an unoccupied site),
and believed this provided it with special recognition not warranted
relative to many other sites where the streaked horned lark has
occurred in the past or could occur in the future, or even more
importantly, many other sites not being proposed as critical habitat
where the streaked horned lark currently does occur.
Our Response: We proposed critical habitat on a portion of
Coffeepot Island based on indications that the U.S. Army Corps of
Engineers (Corps) might add this area to their list of authorized
dredge deposit sites (thus potentially creating suitable habitat for
the streaked horned lark) and its proximity to other occupied deposit
sites on the Columbia River. As such, we believed that even though it
may be currently unoccupied, it could play an essential role in the
conservation of the subspecies in the future. However, to date we have
no indications that the Corps is actively pursuing inclusion of this
island into their dredging and navigation channel maintenance program.
Therefore, the site is unlikely to support streaked horned larks
anytime within the foreseeable future. Based upon this information and
input from peer reviewers, we have determined this unoccupied area is
not essential to the conservation of the subspecies, and thus does not
meet the definition of critical habitat. Coffeepot Island is not
included in the final designation of critical habitat for the streaked
horned lark.
(6) Comment: One peer reviewer and several commenters recommended
that we designate critical habitat on sites that are not known to be
currently occupied by streaked horned lark, but could be managed to
provide suitable habitat. These sites include privately owned
agricultural lands in the Willamette Valley, industrial and restoration
sites in the Portland area, and islands and mainland sites along the
lower Columbia River.
Our Response: Recovery of the streaked horned lark will likely
require the restoration or creation of new habitat on some currently
unoccupied sites. As described in the proposed rule, streaked horned
larks require habitat with both a specific landscape context (flat and
wide-open) and structure (low-stature vegetation with abundant bare
ground). Given the appropriate landscape context, the structure is easy
to create, which has fostered the hope of establishing new habitats for
streaked horned larks at sites with conservation management as their
main objective. There have recently been some attempts to create
habitat for and to attract streaked horned larks to suitable but
unoccupied habitats. An experimental approach, initially implemented by
Metro (the Portland, Oregon, area regional government body) and later
joined by the Center for Natural Lands Management (CNLM), a
nongovernmental organization, has attempted to create habitat and
attract streaked horned larks to the St. Johns Landfill in North
Portland, Oregon, and to two sites at Joint Base Lewis-McChord (JBLM)
in Washington; the effort at St. Johns Landfill began in 2009, and at
JBLM in 2012. These efforts have combined habitat creation and the use
of conspecific attraction techniques (streaked horned lark decoys and
audio playback of recorded calls). The concept holds great promise, but
so far has not been successful in establishing a new population of
streaked horned larks at any of the three experimental sites. As we
embark on recovery efforts for the streaked horned lark, we intend to
continue to refine this approach and to work to create new habitats in
areas with the proper landscape context, but it is clear that we do not
yet know which sites will succeed in attracting and supporting new
populations of streaked horned larks. Designating critical habitat at
this time on sites that do not yet support use by streaked horned larks
would be premature, since we cannot be sure that streaked horned larks
will colonize sites that have been recommended as potential critical
habitat, and the designation of unoccupied areas requires a
determination that such areas are essential to the conservation of the
subspecies. We may revisit the issue of critical habitat designation
when we have better information about how to attract streaked horned
larks to currently unoccupied sites. In addition, we will look to the
guidance provided by the recovery plan that will be developed for the
streaked horned lark to make future determinations regarding those
unoccupied areas, if any, that may be essential for the conservation of
the subspecies.
Comments From States
Section 4(i) of the Act states, ``the Secretary shall submit to the
State agency a written justification for his failure to adopt
regulations consistent with the agency's comments or petition.''
Comments we received from State agencies regarding the proposal to
designate critical habitat for the Taylor's checkerspot butterfly and
streaked horned lark are addressed below. We received comments from the
Washington Department of Fish and Wildlife (WDFW) and Washington
Department of Natural Resources (WDNR) related to biological
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information, threats, critical habitat exclusions, the inadequacy of
regulatory mechanisms, and recommendations for the management of
habitat. We did not receive any comments regarding critical habitat for
the Taylor's checkerspot butterfly or streaked horned lark from
agencies in the State of Oregon.
Both agencies (WDFW and WDNR) provided a number of recommended
technical corrections or edits to the proposed critical habitat
designation for the Taylor's checkerspot butterfly and streaked horned
lark. We have evaluated and incorporated this information into this
final rule where appropriate to clarify the final critical habitat
designation. In instances where the Service may have disagreed with an
interpretation of the technical information that was provided, we have
responded in separate communication with the agency.
(7) Comment: WDFW noted that the critical habitat designation for
Taylor's checkerspot butterfly in the Bald Hill area did not appear to
include some historical Taylor's checkerspot butterfly locations with
suitable habitat. WDFW believes both Fossil Rock and Bald Hill 1176
Spur A Bald should have been included in proposed critical habitat.
Our Response: We considered the WDFW's suggestion, but concluded
the contiguous area proposed for designation as critical habitat in
this area for Taylor's checkerspot butterfly would provide better
management opportunities for the subspecies than would designating
multiple, isolated patches. The focus of conservation work in the Bald
Hill area has been in the vicinity of the State's Natural Area
Preserve, and not on disjunct patches that are likely inaccessible to
Taylor's checkerspot butterflies unless they were introduced
(translocated) specifically into these isolated habitat patches.
(8) Comment: WDFW encouraged the Service to not only ensure that
the conservation measures provided for in the integrated natural
resources management plan (INRMP) for JBLM are sufficient to preclude
the need to designate critical habitat for the Taylor's checkerspot
butterfly and streaked horned lark, but also that implementation of the
plan can be assured. WDFW also requested we consider excluding WDFW
properties addressed by their draft wildlife area habitat conservation
plan (HCP).
Our Response: Section 4(a)(3)(B)(i) of the Act specifically states
that the Secretary shall not designate critical habitat on Department
of Defense lands if the area is subject to an INRMP that provides a
benefit to the species for which critical habitat is proposed. As
discussed under the section Exemptions in this final rule, the
Secretary has determined, in writing as required by the Act, that
JBLM's INRMP provides such a benefit for Taylor's checkerspot butterfly
and streaked horned lark under the endangered species management plans
(ESMPs) developed specifically for these subspecies under their INRMP;
therefore JBLM lands are not included in this final designation of
critical habitat. Our experience with JBLM is that, when they commit to
conservation actions, they have the funding required to ensure that
implementation of the action will occur.
When deciding whether to exclude an area from designation of
critical habitat under section 4(b)(2) of the Act, the Service needs to
assess not only the conservation measures outlined within management
plans regardless of agency or organization, but also the level of
assurance an agency can provide of actually funding and implementing
the conservation measures identified within the plan. The same process
would hold true when evaluating the WDFW wildlife area HCP. As
described in the Exclusions section of this document, we have excluded
the Wildlife Areas owned and managed by WDFW because of the management
plans in place for these State Wildlife Areas (Scatter Creek and West
Rocky Prairie Wildlife Areas) The exclusion of these Wildlife Areas was
not based on WDFW's draft HCP because we have not received a complete
draft HCP document to review, and furthermore, the HCP in question is
not finalized. We would not be able to exclude the areas in question
based on assurances for funding and implementation that may be provided
through a future HCP process.
(9) Comment: WDFW was concerned that, with the new helicopter
brigade stationed at JBLM, the airstrip on TA 14 on 13th Division
Prairie is now used almost daily during streaked horned lark breeding
season, with many low-elevation flights and ``touch-and-go'' exercises
occurring in the highest density occupied habitat. This is also a
concern for adult Taylor's checkerspot butterflies at this site. They
were also concerned with impacts associated with off-road training
conducted in the 13th Division Prairie.
Our Response: Activities conducted on JBLM, including air
operations at 13th Division Prairie, the military airfields, and other
areas, will be addressed in section 7 consultations after the
subspecies are listed. The Service is currently coordinating with the
Environmental and Natural Resource Division and staff from Range
Control on training activities that impact the Taylor's checkerspot
butterfly and streaked horned lark, and we are in negotiations on ways
to further reduce impacts to these two subspecies specifically at this
location. JBLM is aware that they will need to implement timing
restrictions and avoid conducting training activities in certain
locations or during the most sensitive time of year to minimize or
avoid take of the subspecies after they are listed. This will include
the areas adjacent to the Pacemaker runway and other portions of the
13th Division Prairie where the Taylor's checkerspot butterfly and
streaked horned lark occur.
(10) Comment: WDNR was concerned that the safe use of pesticides to
control nonnative, invasive insects, such as gypsy moth, may be
impacted by the listing and designation of critical habitat for
Taylor's checkerspot butterfly.
Our Response: We do not see pesticide use in general to pose an
adverse impact to Taylor's checkerspot butterflies unless individuals
are directly exposed to the pesticides. The Service does not anticipate
the need for pesticide spraying on habitat occupied by Taylor's
checkerspot butterflies, as the subspecies does not occupy forested
areas where such pesticides are generally applied. However, if
pesticide were to be sprayed in areas where pesticide drift would
expose Taylor's checkerspot butterflies to the pesticide(s), then we
would be concerned with their application in these situations. The
Service acknowledges the use of pesticides as harmful to Taylor's
checkerspot butterfly at all life stages. We specifically discourage
the use of insecticides such as Bacillus thuringiensis var. kurstaki
(BtK) in forested areas adjacent to Taylor's checkerspot butterfly
habitat. This insecticide, which is used for harmful defoliators like
gypsy moth and spruce budworm, has been implicated in the loss of three
populations of Taylor's checkerspot butterfly in Pierce County,
Washington, during the early 1990s, when it was applied adjacent to
Taylor's checkerspot butterfly habitat.
Comments From Federal Agencies
Department of Energy, Bonneville Power Administration
(11) Comment: The Service should remove those portions of the
Bonneville Power Administration's (BPA) rights-of-way that are composed
of access roads and transmission towers and their related
infrastructure from the critical habitat proposal, as the roads and
structures do not exhibit the biological
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features required for recovery of Taylor's checkerspot butterfly.
Our Response: We agree that some portions of the BPA rights-of-way
in areas formerly occupied by Taylor's checkerspot butterfly do not
contain biological features that are important for the subspecies;
therefore we have made minor changes to the critical habitat boundaries
to remove those areas that do not meet our definition of critical
habitat. Furthermore, as explicitly described in this rule, critical
habitat does not include manmade structures (such as buildings,
aqueducts, runways, roads, and other paved areas) and the land on which
they are located existing within the legal boundaries on the effective
date of this rule (see DATES). Therefore, access roads and transmission
towers and their related infrastructure are not considered critical
habitat. Powerline rights-of-way are excellent areas to manage and
support butterflies as the structure and composition of vegetation for
the Taylor's checkerspot butterfly is compatible with right-of-way
management.
(12) Comment: BPA believes the geographic footprints of access
roads and transmission structures do not contain the biological
features essential for the conservation of Taylor's checkerspot
butterfly, since they differ in character from the open meadow space
more generally located within the rights-of-way that provide high-
quality habitat for the butterfly. Therefore, they should not be
designated as critical habitat.
Our Response: The critical habitat unit referred to by BPA (Unit 4-
D) is currently occupied by Taylor's checkerspot butterfly and provides
several of the physical or biological features essential to the
conservation of the species. Open areas that provide flight corridors
between patches of suitable habitat are important for Taylor's
checkerspot butterflies. In addition to the relative quality of
habitat, there needs to be an avenue for movement, including movement
between areas that may not provide high-quality habitat features.
Access roads and other areas cleared of woody vegetation can provide
important flight corridors used by Taylor's checkerspot butterflies,
although roads and other structures are not consistent with critical
habitat and are specifically not included in critical habitat by text,
as described in our response to Comment 11, above.
Department of Transportation, Federal Aviation Administration
(13) Comment: The Federal Aviation Administration (FAA) does not
believe habitat on airports should be considered critical for the
recovery of either the Taylor's checkerspot butterfly or streaked
horned lark given that airport property encompasses only 2,948 ac
(1,193 ha) out of 21,393 ac (8,657 ha) proposed for critical habitat
designation, or approximately 14 percent of the total proposed acreage.
Our Response: The Act defines critical habitat as those specific
areas within the geographical area occupied by the species, at the time
it is listed, on which are found those physical or biological features
essential to the conservation of the species, and which may require
special management considerations or protection. The test for whether
an area is essential to the conservation of the species is applied to
areas that are not occupied by the species at the time of listing. All
airport lands proposed for critical habitat designation for the
streaked horned lark are currently occupied by the subspecies and
provide the essential physical or biological features, which may
require special management considerations or protection. Therefore, all
airport lands proposed meet the Act's definition of critical habitat
for the streaked horned lark. However, our analysis under section
4(b)(2) of the Act indicates that the benefits of including airport
lands in critical habitat are outweighed by the benefits of excluding
these areas. Therefore, all airport lands are excluded from this final
designation of critical habitat for the streaked horned lark. Please
see additional discussion under Exclusions.
We did not propose any critical habitat on airport lands for the
Taylor's checkerspot butterfly.
Department of the Air Force
(14) Comment: The Department of the Air Force believes the
designation of streaked horned lark critical habitat on military
airfields is counter to Air Force instructions and could increase the
risk to aircrews, aircraft, and the streaked horned lark; therefore,
they requested that military airfields be excluded from critical
habitat designation for the lark.
Our Response: The military airfields proposed for critical habitat
designation for the streaked horned lark are currently occupied by the
species. Ongoing airfield maintenance activities that are conducted at
both the military and non-federal airports have created suitable
habitat for the streaked horned lark that provides the essential
physical or biological features for the subspecies. It is our
understanding that these maintenance activities would take place
regardless of the presence of the streaked horned lark. We are aware
that FAA regulations required for public safety are in direct conflict
with increasing bird populations on airports, and as discussed in our
4(b)(2) exclusion analysis for civilian airports, we do not intend to
focus on airfields as part of the recovery efforts for the streaked
horned lark (see Exclusions). Section 4(a)(3)(B)(i) of the Act
specifically states that the Secretary shall not designate critical
habitat on Department of Defense lands if the area is subject to an
INRMP that provides a benefit to the species for which critical habitat
is proposed for designation. As discussed in the Exemptions section
below, the Secretary has determined that the endangered species
management plan for the streaked horned lark developed under JBLM's
INRMP provides adequate protection for the subspecies on the military
airfields. Therefore, the military airfields are not included in the
final critical habitat designation.
(15) Comment: The Department of the Air Force and several other
commenters were concerned that critical habitat designations at
airports would restrict essential activities, including military
training and hazardous wildlife control.
Our Response: As described above in our responses to Comments 13
and 14, we have excluded airports from the final critical habitat
designation for the streaked horned lark under section 4(b)(2) of the
Act and exempted all DOD lands at Joint Base Lewis-McChord (JBLM) under
section 4(a)(3) of the Act, so the potential effects of critical
habitat designation are moot. However, any activity by a Federal agency
that may affect the streaked horned lark or any other listed species at
an airport would be subject to consultation under section 7 of the Act.
Under section 7(a)(2) of the Act, it is the duty of all Federal
agencies to ensure that any actions they fund, authorize, or carry out
are not likely to jeopardize the continued existence of a listed
species. Review under section 7 may result in some changes to an
agency's proposed action, consistent with their mandates, to advance
the conservation of listed species.
Department of the Army, Joint Base Lewis-McChord
(16) Comment: The Department of the Army believes the northern
portion of the Range 72-79 unit for Taylor's checkerspot butterfly on
JBLM should be excluded due to the fact that this area is of lower
quality than the remainder
[[Page 61511]]
of the proposed unit and is used extensively for off-road vehicle
maneuvers.
Our Response: As described in the Exemptions section of this
document, all JBLM lands have been removed from the final designation
of critical habitat for both species under section 4(a)(3) of the Act.
(17) Comment: The Range 50 subunit extends beyond the current and
previous areas occupied by Taylor's checkerspot butterfly.
Our Response: Range 50 is a site where introduced (translocated)
Taylor's checkerspot butterflies have been placed since 2009. The
translocation has taken hold, the population is increasing, and
individual butterflies are dispersing to new food plants east and west
of Range 50; therefore we consider this area to be currently occupied
by the subspecies. Where the butterfly becomes established, it will be
critical to provide areas of suitable habitat for dispersing
individuals, and to allow for the establishment of meta-population
structure that takes place on areas sufficiently large to allow for
some local populations to ``blink on'' and ``blink off'' over time.
This shift is typical and follows changes to habitat as the vegetation
suitability (structure and composition) shifts between periods of
restoration, or in the case of JBLM, inadvertent fires that
periodically disturb the habitat, returning it to the early seral
condition that provides suitable habitat for the Taylor's checkerspot
butterfly.
(18) Comment: The Department of the Army requests that the Service
exempt those portions of the proposed critical habitat designations for
the Taylor's checkerspot butterfly and streaked horned lark on JBLM.
Our Response: Under section 4(a)(3) of the Act, we are required to
not designate any lands or other geographical areas owned or controlled
by the Department of Defense, or designated for its use, that are
subject to a current INRMP, if the Secretary determines that such plan
provides a benefit to the species for which critical habitat is
proposed for designation. We have reviewed and approved the JBLM's
endangered species management plans (ESMP) under their INRMP for the
Taylor's checkerspot butterfly and streaked horned lark, and
accordingly have exempted JBLM lands from our final critical habitat
designations. Please see Exemptions for more information.
Natural Resources Conservation Service
(19) Comment: The Natural Resources Conservation Service (NRCS)
believes that continuation of the current level of grazing management
by the Colvin Ranch has resulted in healthy native prairie populations
and will continue to provide benefits to the native prairie
populations, which exceed benefits provided by a critical habitat
designation. Therefore, NRCS supports the request by the Colvin Ranch
to exclude their property from critical habitat under section 4(b)(2)
of the Act.
Our Response: We considered the potential exclusion of Colvin Ranch
from the final designation of critical habitat. Our evaluation under
section 4(b)(2) of the Act led us to the conclusion that this private
land should be excluded from the final designation of critical habitat,
as the benefits of exclusion outweigh the benefits of inclusion in
critical habitat. Please see Exclusions for more information.
(20) Comment: NRCS and another commenter recommended that we
withdraw the proposed designation of critical habitat for the streaked
horned lark at M-DAC Farms in Oregon because the site no longer
provides the primary constituent elements (PCEs) identified for
critical habitat. M-DAC Farms is a privately owned property with a
Wetlands Reserve Program easement, which is held by NRCS. NRCS
expressed concern that M-DAC's designation as critical habitat could
affect the agency's ability to accomplish the wetland restoration goals
for which the conservation easement was originally purchased on the
site.
Our Response: Prior to NRCS's purchase of a conservation easement
at M-DAC, the site was a perennial rye grass farm. The goals for the
site include restoration of 100 (40 ha) acres of seasonal wetland, over
100 (40 ha) acres of bottomland hardwood forest, and over 300 acres
(120 ha) of wet prairie habitat. Though streaked horned larks used the
site in large numbers when the ground was originally cleared to prepare
for habitat restoration, we agree with the commenter that the
vegetation at the site has since matured and no longer provides
suitable habitat for the streaked horned lark, with the exception of
limited areas along a road and perhaps in the seasonal mudflats
adjacent to the wetlands. The site may continue to provide habitat for
a few breeding pairs of streaked horned larks; however, the long-term
goals for the site do not include increasing the area of suitable
habitat for streaked horned larks. The site will not be a focus of
active recovery for the streaked horned lark, and very little of the
601 acres (240 ha) will provide suitable habitat for the subspecies.
We have removed M-DAC Farms from the final designation of critical
habitat based on information we received during the public comment
period indicating that it does not meet the definition of critical
habitat for the streaked horned lark. The site does not provide the
requisite physical or biological features, and therefore does not meet
our criteria for designation.
U.S. Forest Service, Olympic National Forest
(21) Comment: The U.S. Forest Service believes that areas within
Olympic National Forest proposed for critical habitat designation
should be excluded under section 4(b)(2) of the Act due to ongoing
management for Taylor's checkerspot butterfly habitat.
Our Response: We have worked closely with the U.S. Forest Service,
and Taylor's checkerspot butterfly has benefitted immensely from the
conservation actions that have been implemented on the Olympic National
Forest. We inadvertently indicated that we may exclude Olympic National
Forest lands from the final designation of critical habitat. However,
such an exclusion would run counter to the Congressional intent of the
Act (stated in sections 2(c)(1) and 7(a)(1)) that Federal agencies have
obligations to conserve endangered and threatened species and to carry
out programs for the conservation of endangered and threatened species.
In consideration of the explicit congressional direction that Federal
agencies exercise their authorities to conserve listed species, we
expect Federal agencies to contribute to conservation through the
designation of critical habitat. Therefore, we have not excluded any
Federal lands from critical habitat. Please see the section Federal
Lands for more information.
Comments From Native American Tribes
(22) Comment: The Shoalwater Bay Tribe requested that habitat on
their reservation be excluded from the final critical habitat
designation for the streaked horned lark. The Tribe is currently
working with the Service and the Corps to develop an ecological
restoration plan for the Tribal tidelands. This restoration plan will
focus on maintaining and protecting habitat for listed species
(including the streaked horned lark and western snowy plover
(Charadrius nivosus nivosus)) and coastal resources important to the
Tribe.
Our Response: Based on our ongoing partnership with the Tribe and
assurance that habitat will be protected at this site, we have excluded
the Shoalwater Bay Indian Reservation from
[[Page 61512]]
the final critical habitat designation based on our discretionary
4(b)(2) exclusion analysis. Based on our evaluation, we found that the
benefits of exclusion outweigh those of inclusion. See the Exclusions
section of this document for details.
Comments From the Public
Several commenters provided minor technical corrections or edits to
the proposed critical habitat designation for Taylor's checkerspot
butterfly and streaked horned lark. We have evaluated and incorporated
this information into this final rule where appropriate to clarify the
final critical habitat designation. In instances where the Service may
have disagreed with an interpretation of the technical information that
was provided, we have responded under separate comments.
(23) Comment: One property owner in Subunit 1-D disputed the
Service's authority to designate critical habitat on their lands for
Taylor's checkerspot butterfly, arguing that the PCEs must be found on
an area as a prerequisite to designation, and that the Act leaves no
room for designation of land that may in the future contain the
physical or biological features. The owner acknowledges that the
property is currently unoccupied by the subspecies, but disagrees with
the Service's conclusion that the available evidence indicates it was
likely historically occupied by Taylor's checkerspot butterfly. The
owner further claims that their property does not contain any of the
specific physical or biological features that the Service has
identified for Taylor's checkerspot butterfly at any stage of its
development.
Our Response: The Act provides two definitions for critical
habitat: one applies to areas occupied by the species at the time of
listing, the other applies to areas not occupied by the species at the
time of listing. In the first case, the Act specifies that critical
habitat means, ``the specific areas within the geographical area
occupied by the species, at the time it is listed in accordance with
the provisions of section 4 of this Act, on which are found those
physical or biological features (I) essential to the conservation of
the species and (II) which may require special management
considerations or protection.'' This requirement that the physical or
biological features be found does not apply in this particular
situation, because the property in question is not presently occupied
by Taylor's checkerspot butterfly. The lands in question were initially
identified in the proposed rule as meeting our criteria for critical
habitat under the second part of the definition of critical habitat in
the Act, which adds that critical habitat includes, ``specific areas
outside the geographical area occupied by the species at the time it is
listed in accordance with the provisions of section 4 of this Act, upon
a determination by the Secretary [of the Interior] that such areas are
essential for the conservation of the species.'' We therefore re-
evaluated the unoccupied private property in question. We evaluated its
context in relation to other occupied areas supporting the Taylor's
checkerspot butterfly, and other protected areas where habitat has been
improved sufficiently to support translocated Taylor's checkerspot
butterflies. Based upon our analysis, we have determined the unoccupied
property in question is not essential to the conservation of Taylor's
checkerspot butterfly; therefore it is not included in the final
designation.
(24) Comment: One landowner stated that the designation of their
property as critical habitat for Taylor's checkerspot butterfly is
improper because the record does not contain evidence that shows
specifically where the PCEs are located. To the contrary, they believe
there is evidence that the property contains physical features that the
proposed rule identifies as rendering habitat unusable for the
butterfly. The commenter states that any designation of critical
habitat by the Service must be limited to those areas that actually
contain the physical or biological features essential to the
conservation of the Taylor's checkerspot butterfly.
Our Response: The property in question was proposed as unoccupied
but essential critical habitat for the Taylor's checkerspot butterfly.
As noted in various responses above, the standards for designation of
critical habitat differ depending on whether the area in question is
occupied at the time of listing or not. If the area is occupied at the
time of listing, the PCEs for the species must be found on that area
(however, the Service is not required to detail all the specific
locations where each PCE may exist on an area proposed for
designation). If the area is not occupied at the time of listing, it
may be designated as critical habitat upon a determination by the
Secretary that such area is essential for the conservation of the
species. The reference to the presence of the essential physical or
biological features does not appear in the definition of unoccupied
areas, thus the commenter is incorrect in stating that the designation
of critical habitat must be limited to those areas that contain such
features in cases such as this where the area in question is not
occupied by the species at the time of listing. In this case, we had
proposed the lands in question as critical habitat believing they were
essential to the conservation of the subspecies, based on similar
habitats known to support Taylor's checkerspot butterfly found at other
locations and from evidence of these habitat conditions being present
on similar adjacent properties; the Service is particularly limited in
specifying locations of the necessary habitat features on private
property, where access is often not freely granted. Upon further
examination, however, and in response to the information provided by
the commenter, we determined that this property (located in subunit 1-D
in the proposed rule, subunit 1-A Rocky Prairie in this document) is
not essential to the conservation of the subspecies, and it is not
included in the final designation.
(25) Comment: One commenter suggested we remove the gravel pit in
TA 7S, subunit 1-A, currently in use on JBLM, from the critical habitat
delineated for Taylor's checkerspot butterfly. They state the gravel
pit does not currently provide suitable habitat and would take enormous
effort to restore to quality habitat, while the remaining extent of TA
7S prairie is relatively intact and could more easily be restored to
create suitable habitat.
Our Response: It is our understanding that, in the past, Taylor's
checkerspot butterfly was observed utilizing the puddles in the gravel
pit. We understand the gravel pit is marginal habitat at best, but as a
formerly occupied site containing some of the PCEs for the subspecies
(Plantago and topographic diversity) and its location adjacent to TA
7S, we considered that the area could potentially be restored to
support Taylor's checkerspot butterfly (although critical habitat does
not specifically require restoration).
However, since the area in question is on JBLM, it has been
exempted from the final designation. Under section 4(a)(3) of the Act,
we are required to not designate any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to a current INRMP, if the Secretary determines
that such plan provides a benefit to the species for which critical
habitat is proposed for designation. We have reviewed and approved the
JBLM ESMP for Taylor's checkerspot butterfly under the INRMP and
accordingly have exempted any proposed critical habitat areas on JBLM
from our final critical habitat designations under section 4(3)(a) of
the Act. Please see the
[[Page 61513]]
Exemptions section of this document for more information.
(26) Comment: One commenter asked the Service to consider excluding
subunit 1-J Bald Hills, since they believe the Taylor's checkerspot
butterfly is likely extirpated at the site and the landowner has
committed to implementing a wildlife management plan at that site.
Our Response: We do not disagree that the Taylor's checkerspot
butterfly may have been extirpated from this site. Subunit 1-J Bald
Hill was identified in the proposed rule as meeting our criteria for
critical habitat under the second part of the definition of critical
habitat in the Act, which states that critical habitat includes,
``specific areas outside the geographical area occupied by the species
at the time it is listed in accordance with the provisions of section 4
of this Act, upon a determination by the Secretary [of the Interior]
that such areas are essential for the conservation of the species.'' We
were unable to consider these lands for exclusion under section 4(b)(2)
of the Act because the Service had not received a management plan for
this property; therefore, we were unable to assess the value of the
conservation planning efforts being proposed or implemented on this
private property. Without a management plan for evaluation, we have no
potential basis for exclusion; therefore this property is included in
the final designation of critical habitat.
(27) Comment: One commenter recommended the Army Aviation Support
Facility 1 (AASF1) in Salem be excluded from critical habitat
because of the national security importance of the installation.
Our Response: The AASF1, while it contributes to maintaining troop
readiness for the National Guard, is not a Federal entity. This
facility is a private/State holding with a military lease. The
Secretary weighed the benefits of including versus excluding non-
Federal airports from critical habitat for the streaked horned lark,
and concluded that the benefits of exclusion outweighed the benefits of
inclusion; thus all non-Federal airport lands are excluded from the
final designation of critical habitat (see the Exclusions section of
this document). AASF1, being a non-Federal entity, is already excluded
from critical habitat based on this analysis; therefore we did not
consider the potential national security implications of the
designation.
(28) Comment: Several commenters suggested that the designation of
critical habitat may act as a regulatory disincentive, and may
discourage private landowners and others from cooperative, voluntary
conservation efforts. Some commenters suggested that the Service pursue
alternative forms of conservation, such as safe harbor agreements or
habitat conservation plans. WDNR and WDFW encouraged the Service to
fully consider the advantages and disadvantages of designating critical
habitat where cooperative, nonregulatory approaches are in place to
conserve the species and its habitat.
Our Response: Section 4(a)(3)(A) of the Act requires us to
designate critical habitat to the maximum extent prudent and
determinable. The Act permits us to exclude areas that meet the
definition of critical habitat only where we determine that the
benefits of exclusion outweigh the benefits of designation. The
regulatory consequence of critical habitat designation is the
requirement that Federal agencies consult on actions that they may
fund, authorize, or carry out to ensure that such actions do not result
in the destruction or adverse modification of critical habitat. We
recognize that in many cases there may not be a Federal nexus that
invokes the protections afforded to designated critical habitat on non-
Federal lands, and that other instruments such as safe harbor
agreements or habitat conservation plans have the potential to provide
conservation measures that effect positive results for the species and
its habitat. The conservation and recovery of endangered and threatened
species, and the ecosystems upon which they depend, is the ultimate
objective of the Act, and the Service recognizes the vital importance
of voluntary, nonregulatory conservation measures in achieving that
objective. To that end, we fully support and encourage the development
of voluntary conservation agreements such as safe harbor agreements or
habitat conservation plans with non-Federal landowners. Furthermore,
where cooperative agreements are in place for the conservation of the
species and its habitat, the Secretary gives full consideration to the
relative benefits of excluding those lands from the final critical
habitat designation, provided such exclusion would not result in the
extinction of the species, in accordance with section 4(b)(2) of the
Act.
(29) Comment: One commenter suggested that the Service pursue
conservation programs to provide economic incentives to private
landowners to create or maintain suitable habitat for the streaked
horned lark on agricultural lands, especially grass seed farms.
Our Response: We appreciate the suggestion, and we will consider
this and other creative ideas for achieving the conservation of the
subspecies as we develop the recovery plan for the streaked horned
lark. Such conservation measures are outside of the scope of the
present rulemaking, however, which is restricted to the identification
of those areas that meet the definition of critical habitat for the
streaked horned lark.
(30) Comment: One commenter stated the proposal fails to address
private lands, which are likely to be key habitat for the persistence
of the streaked horned lark. Positive incentives need to be proposed
that will lead to recovery of the streaked horned lark.
Our Response: In our proposed rule, we recognize the importance
that private agricultural lands will play in the conservation and
recovery of streaked horned lark, particularly in the Willamette Valley
of Oregon (April 3, 2013; 78 FR 20074). However, we additionally
explain that we cannot designate critical habitat in the agricultural
fields in the Willamette Valley, most of which are privately owned,
because we are unable to determine which areas within the large
agricultural matrix in the valley will meet the definition of critical
habitat at any time. Critical habitat, once designated, is static on
the landscape until such time as it may be revised through an
additional rulemaking process. Agricultural habitats on private lands
can provide appropriate habitat conditions for streaked horned lark,
but these conditions (large, open landscape context; low-stature
vegetation; bare ground) occur unpredictably and vary in location from
year to year. Because of the unpredictable and ephemeral nature of
streaked horned lark habitat on private agricultural lands, we have no
basis for concluding that any specific areas are essential for
conservation, because we have no way of knowing where or how long the
appropriate conditions will persist. Therefore, we have not designated
critical habitat for the streaked horned lark on private lands in the
Willamette Valley.
As noted earlier, the consideration of recovery instruments such as
incentive programs is outside of the scope of the present rulemaking,
which is limited to the identification of those areas that meet the
definition of critical habitat for the streaked horned lark.
(31) Comment: One commenter stated that the Service failed to
designate critical habitat on private agricultural lands in the
Willamette Valley, despite the fact that a majority of breeding and
wintering streaked horned larks rely on those areas. The commenter
disagreed
[[Page 61514]]
with the Service's position that it was unable to determine which areas
within the large agricultural matrix in the valley will meet the
definition of critical habitat at any time. The commenter pointed to
the Service's designation of large areas of critical habitat for the
northern spotted owl and marbled murrelet across millions of acres of
forest even though only a portion of the habitat is suitable for either
bird at any time. The commenter recommended that the Service take a
similar approach for streaked horned larks on agricultural lands in the
Willamette Valley, recognizing that only a portion of those lands will
be suitable at any given time.
Our Response: The commenter's comparison to the critical habitat
designations for the northern spotted owl (Strix occidentalis caurina)
and marbled murrelet (Brachyramphus marmoratus) is not an apt one. The
northern spotted owl and marbled murrelet rely primarily on Federal
lands for their conservation, and their old-growth habitat takes
decades to develop on those lands. In contrast, the habitat of the
streaked horned lark can develop and disappear on farm lands in the
space of a few weeks, and its appearance typically depends on human
intervention, not natural processes. Designating large swaths of the
Willamette Valley as critical habitat would not provide any useful
information regarding the presence of the streaked horned lark or its
habitat to landowners. We maintain that our concern about the ability
to identify critical habitat for the streaked horned lark on private
farm lands is valid, and the situation is not analogous to the critical
habitat designations of other listed species found in old-growth
forests.
(32) Comment: One commenter stated the primary constituent elements
(PCEs) and characteristics for habitat suitability for the streaked
horned lark are fairly specific, yet noted habitat will change over
time, and perhaps be suitable for only a limited period of time due to
vegetation growth. Therefore, they asked if critical habitat
designations will be time-limited or adjusted periodically.
Our Response: Critical habitat is a designation that does not vary
seasonally or over time, and is only subject to change through a
rulemaking process to revise the designation. This relatively static
nature of critical habitat is the very reason that we find we cannot
identify critical habitat on the unpredictable and ephemeral habitats
used by streaked horned larks in the agricultural areas of Oregon.
(33) Comment: One commenter recommended that documented occupancy
in any season during any life stage be the basis for determining
critical habitat for the streaked horned lark. They believe the
Service's definition of occupancy as occurrence only during the
breeding season is too narrow. Occupancy should include documented
presence of the subspecies outside of the breeding season as well. Uses
of non[hyphen]breeding areas are important to the subspecies' survival,
such as areas used for foraging and overwintering, as these sites may
also become breeding sites in the future.
Our Response: We do not know of any areas that are used only for
wintering (most sites that are used during the winter are also used
during the breeding season); however, we have modified our definition
of occupancy to include usage by streaked horned larks during any
season.
(34) Comment: One commenter stated the economic and social factors
driving conversion of Willamette Valley farmland to vineyards are
likely to continue in the foreseeable future, and may accelerate as
large California wineries are reportedly investing in Willamette Valley
farmlands as a hedge against global climate change. As a result, the
likelihood of a changing agricultural landscape should be recognized in
the listing and critical habitat designation for the streaked horned
lark.
Our Response: The Service does not consider the acquisition of
lands by the viticulture industry to be a significant factor in the
reduction of breeding and nesting habitat for the streaked horned lark.
We contacted Dr. William Boggess at Oregon State University's Oregon
Wine Research Institute, and he described the ideal lands for
viticulture as being 300 to 800 feet (ft) (91 to 244 meters (m)) in
elevation, on a slope with a southern or western aspect. These optimal
viticulture soils are shallow and nutrient poor, above the flood plain
or on eroded rocky soils. These ideal conditions for grapes are not
similar in characteristic to the primary constituent elements for
streaked horned lark habitat. As such, we do not consider viticulture a
factor affecting habitat loss for the streaked horned lark.
(35) Comment: One commenter stated that it is important to
designate critical habitat on Willamette Valley agricultural lands to
``ensure that habitat is not converted to uses that will never be
suitable for streaked horned lark, such as row crops or urban
development, but rather are maintained as agriculture that at least
part of the time supports streaked horned lark.''
Our Response: Critical habitat designation only has a regulatory
effect in instances where there is a Federal action (i.e., a Federal
agency funds, authorizes, or carries out an action) that may affect
designated critical habitat; this action is then reviewed through
interagency consultation under section 7 of the Act between the Federal
action agency and the Service. Designation of critical habitat on
private lands will have no effect on a private landowner's ability to
convert to another crop or to sell out completely if there is no
Federal action involved. Contrary to the commenter's perception,
critical habitat designation does not create a wildlife preserve or
require any sort of response or management from a private landowner.
(36) Comment: We received multiple conflicting comments suggesting
that connectivity both is and is not a necessary consideration when
designating critical habitat for the streaked horned lark.
Our Response: We rely on the expertise of our Service staff
biologists, as well as the peer review of our proposed rule by species
experts who either support or refute our assertions. In this instance,
both our staff biologists and our peer reviewers support the need for
connectivity of critical habitat units to ensure the potential for
genetic exchange and colonization by streaked horned larks.
(37) Comment: Several commenters expressed great concern about the
implications to public safety from designating critical habitat for the
streaked horned lark at airports, and requested that we exclude
airports from the critical habitat designation due to safety concerns.
Our Response: Although we do not see a direct connection between
the designation of critical habitat, which results in the requirement
that Federal action agencies consult with us on activities that involve
Federal funding, authorization, or implementation, and public safety,
all airport lands have been excluded from our designation under section
4(b)(2) of the Act for other reasons. Please see additional discussion
under Exclusions.
(38) Comment: Several commenters stated that critical habitat
should not be designated for the streaked horned lark at airports,
because airports are not suitable as sites for recovery of the
subspecies.
Our Response: We concur with these commenters that airports should
not be focal points for streaked horned lark recovery. In section 3 of
the Act, ``critical habitat'' is defined, in part, as the specific
areas within the geographical area occupied by the species at the time
it is listed on which
[[Page 61515]]
are found those physical and biological features essential to the
conservation of the species. ``Conservation'' is further defined in the
Act as the use of all methods and procedures which are necessary to
bring any endangered or threatened species to the point at which the
measures provided pursuant to the Act are no longer necessary. These
definitions clearly demonstrate that the purpose of critical habitat
designation is to identify locations for recovery efforts for listed
species. Airport managers have expressed great concern about the
implied recovery purpose of critical habitat units; management to
encourage increasing populations of birds at airports is untenable to
airport managers. Airports unquestionably provide important habitat for
streaked horned larks, and some of these sites have demonstrated the
ability to sustain small, persistent populations of streaked horned
larks; indeed, without airports there would be very few sites
consistently managed to maintain the habitat conditions used by the
streaked horned lark within the needed landscape context. Therefore,
although airports clearly provide a benefit to the subspecies, and will
likely continue to provide important habitat for small populations,
recovery will require restoration and management of new sites that can
sustain increasing populations of streaked horned larks in the long
term, in more natural locations appropriate for conservation and that
do not pose a heightened risk of mortality to the streaked horned lark
from airstrikes. We have excluded civilian (non-Federal) airports from
critical habitat designation for the reasons outlined in the Exclusions
section of this document.
(39) Comment: One commenter expressed concern that our proposed
designation of critical habitat for the streaked horned lark relied
almost exclusively on public lands. This commenter believes that
private lands in the Willamette Valley will hold the key to the
streaked horned lark's survival.
Our Response: As we stated above, we do not yet know which
unoccupied sites will be essential for the recovery of the streaked
horned lark, and the unpredictable and highly variable occurrence of
PCEs for streaked horned larks on private lands in the Willamette
Valley precludes our ability to designate critical habitat in that
area. The public lands included in the critical habitat designation
(State Parks and the Willapa National Wildlife Refuge on the Washington
coast; three units of the Willamette Valley National Wildlife Refuge
Complex in Oregon (WVNWRC)) have a clear conservation mandate and are
already working to conserve streaked horned lark populations on those
sites. Many other sites will likely be needed to achieve recovery, but
again, we do not yet know where those sites will be. As we begin to
develop a recovery plan, and identify goals for population numbers and
distribution of the streaked horned lark, we will identify areas to
focus on for recovery. These areas will undoubtedly include many areas
on private agricultural lands, for which we will seek partnerships with
willing landowners to manage for streaked horned lark conservation.
Finally, we note that the regulatory effect of critical habitat is
limited to actions with a Federal nexus-activities that are funded,
authorized, or carried out by a Federal agency. The conservation value
of critical habitat is thus often the greatest on Federal lands, which
always have a Federal nexus. The designation of critical habitat has no
regulatory effect on private lands lacking a Federal connection.
Critical habitat designation itself does not prevent development or
alteration of the land, create a wildlife preserve, or require any sort
of response or management from a private landowner.
(40) Comment: One commenter stated that Ankeny National Wildlife
Refuge in the Willamette Valley is not an appropriate site for
designation of critical habitat for the streaked horned lark. The
commenter asserted that, ``. . . Ankeny is not recognized among
knowledgeable local birders as having any significant population'' of
streaked horned larks, and is unlikely to serve as an ``anchor site''
for the bird's recovery.
Our Response: Recent surveys have found up to five breeding pairs
of streaked horned larks at Ankeny; therefore the site is occupied at
the time of listing, and the refuge clearly provides the essential
physical or biological features for the subspecies. Therefore, it meets
the definition of critical habitat for the streaked horned lark. The
WVNWRC included conservation measures in its comprehensive conservation
plan for the streaked horned lark at each of the three refuge units,
including Ankeny. We believe that Ankeny provides consistently
available habitat for a small population of breeding streaked horned
larks, and future management may increase the population. The WVNWRC is
Federal land and has a clear conservation mandate, and so makes a good
choice for critical habitat designation.
(41) Comment: One commenter questioned our proposed designation of
critical habitat for the streaked horned lark on the three units of the
Willamette Valley National Wildlife Refuge Complex. These refuges were
originally established as habitat for wintering dusky Canada geese
(Branta canadensis occidentalis), and the commenter stated that the
refuges cannot successfully manage for the two bird species at once.
Our Response: Research at the three refuge units has shown that
streaked horned larks breed successfully in fields that have been
heavily grazed by wintering geese (Moore 2009, p. 12). The WVNWRC has a
long history of managing for wintering geese, and has recently updated
its comprehensive conservation plan to integrate streaked horned lark
conservation into the goals for the three refuge units. We believe that
the WVNWRC provides excellent habitat for streaked horned larks, and
adaptive management of the sites will likely increase the numbers of
streaked horned larks breeding at each of the refuge units.
(42) Comment: Several commenters criticized the Service's failure
to designate critical habitat on many sites that have had recent
detections of streaked horned larks, primarily on privately owned
agricultural lands in the Willamette Valley, and a few locations in the
lower Columbia River. The commenters are concerned that the current
critical habitat designation will not be adequate to recover the
subspecies.
Our Response: Streaked horned larks evolved to use a shifting
mosaic of very early successional habitats, for which the primary
requirement was the appropriate landscape context (large, relatively
flat, and wide open). The streaked horned lark is unusual among species
in that it does not now occur on remnants of its native habitats;
indeed, most of the streaked horned lark's naturally occurring habitats
no longer exist because the natural processes that historically created
those early successional habitats, such as flooding and wildfire, no
longer operate on the landscape. With the exception of sites on the
Washington coast, where natural disturbance processes still operate to
create habitat, nearly all of the sites currently used by streaked
horned larks have been inadvertently created by humans and are
industrial in nature. These sites are agricultural landscapes, dredge
spoil deposition sites, and airports. These ``working landscapes'' are
managed with little or no consideration for streaked horned lark
conservation, and lark use of these sites seems to be highly
opportunistic. Although streaked horned larks currently occur on these
sites, given their intensive industrial uses, these
[[Page 61516]]
locations may have limited potential to support increased populations
of streaked horned larks in the future, and may be inappropriate sites
on which to establish a recovery program for the subspecies. For the
streaked horned lark, we do not have obvious core sites of pristine,
natural habitats on which to focus recovery efforts. In essence, the
streaked horned lark persists in the Pacific Northwest, even though its
natural habitats are all but gone.
The sites that streaked horned larks currently use are highly
fragmented and scattered. Developing a recovery program for the
streaked horned lark will require identifying areas that have the
essential landscape characteristics and which can be managed for
conservation and recovery of the subspecies. Few of these areas have
been determined thus far. In the Willamette Valley, large landscapes
managed for native prairies will be needed, although it is very likely
that some ``working lands'' in agricultural production will also be
identified as interested landowners step up to implement practices to
protect the streaked horned lark on their lands.
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. We are not designating critical habitat on every small
and fragmented location recently known to be occupied or potentially
occupied by streaked horned larks, because we do not consider all of
these sites to meet the definition of critical habitat for the streaked
horned lark. That is, we do not consider all of these sites to provide
physical or biological features essential to the conservation of the
species, because not all of these sites have the potential to make a
substantial contribution to the recovery of the species. In addition,
section 3(5)(C) of the Act specifically mandates that, except in those
circumstances determined by the Secretary of the Interior, critical
habitat shall not include the entire geographical area which can be
occupied by the listed species. We are not suggesting that the sites
currently used by streaked horned larks are unimportant; rather,
recovery is more likely to be successful and cost-effective if we can
focus our resources on larger, more permanent sites. Therefore, it is
these larger, more permanent occupied sites that we consider to provide
the physical or biological features that are truly essential to the
conservation of the subspecies, and these are the areas that we are
designating as critical habitat at this time. We do not contend that
these sites will necessarily be sufficient to recover the subspecies,
nor does the Act require that they do so. In the future, when we have
better information on sites that will attract and support large, stable
populations of streaked horned larks, and that can be managed for the
long-term conservation of the subspecies, we may revisit this critical
habitat designation, as appropriate.
(43) Comment: One commenter recommended re-drawing the boundaries
of proposed streaked horned lark critical habitat at Portland
International Airport to exclude paved runways, taxiways, and runway
safety areas.
Our Response: All non-Federal airport lands are excluded under
section 4(b)(2) of the Act from this final designation of critical
habitat for the streaked horned lark; please see additional discussion
under Exclusions. For the lands that we are designating as critical
habitat, when determining critical habitat boundaries, we make every
effort to avoid including developed areas such as lands covered by
buildings, pavement (such as roads), and other structures because such
lands lack the essential physical or biological features for streaked
horned larks. Any such lands have been excluded by the text of this
rule and are not included in critical habitat.
(44) Comment: One commenter stated the PCE requiring only a minimum
of 16 percent open ground would not support occupation of the known
nesting sites for streaked horned larks on dredge sand islands in the
Columbia River and may only be relevant for other sites (such as the
Puget Prairie or Willamette Valley).
Our Response: The PCE identifying 16 percent minimum open ground is
a description of the habitat conditions, or physical or biological
features, essential to the conservation of the streaked horned lark,
not a management requirement. Based on research studies, streaked
horned larks need areas with a minimum of 16 percent bare ground. Most
of the currently occupied sites have much more bare ground than this,
and many of the dredge deposit sites have more than 60 percent bare
ground. The habitat description is based on research studies across the
range of the subspecies. We do not expect land owners to manage sites
for streaked horned larks to criteria that represent the minimum
observed in the field.
(45) Comment: One commenter suggested the limited number of
territories and nesting pairs observed annually at Sanderson Field
indicates this area provides only marginal habitat for the streaked
horned lark and should not be designated as critical habitat.
Our Response: The fact that streaked horned larks have consistently
nested at Sanderson Field is an indication that the airport does
provide suitable habitat. There are many occupied sites in Washington
and throughout the range of the subspecies where the number of nesting
territories is low (fewer than 10), and this is not considered an
indication of marginal habitat. The smaller size of Sanderson Field,
compared to the Olympia Airport, and the rapidly declining population
of streaked horned larks in Washington are contributing factors to the
number of territories at the Shelton Airport and other locations. It
should be noted that Sanderson Field is the northernmost location
within the current range of the subspecies where the streaked horned
lark nests. As such, this particular airport serves an important role
in maintaining the distribution of the subspecies. However, as
described in the Exclusions section of this document, airport lands
have been excluded from critical habitat for the streaked horned lark.
(46) Comment: One commenter was concerned that the designation of
critical habitat for the streaked horned lark at certain locations
within the Columbia River would attract streaked horned larks to
adjacent or nearby areas not proposed for designation and could limit
operational and development activities of the Port of Kalama in these
areas.
Our Response: Sandy Island is currently occupied habitat, and the
streaked horned lark has already been documented at the Port of
Kalama's upland dredge deposit site. The designation of critical
habitat on Sandy Island, or other islands in the Columbia River, will
not affect existing streaked horned lark movements or limit operational
and development activities on port property. The fact that the streaked
horned lark has been documented on the Port of Kalama is an indication
that the upland dredge deposit site is currently suitable habitat.
Under the listing (see the final rule to list the Taylor's checkerspot
butterfly and streaked horned lark published elsewhere in today's
Federal Register), the port will be subject to take prohibitions under
section 9 of the Act for activities conducted by the port that
[[Page 61517]]
adversely impact streaked horned larks, regardless of whether critical
habitat is designated on Sandy Island. We recommend that the Port of
Kalama work with the Service on the development of a habitat
conservation plan under section 10 of the Act for activities that
affect the subspecies or suitable habitat, including upland disposal
and use of dredge material.
Comments on Economic Analysis
Please note that the draft economic analysis (DEA) for the proposed
designation addressed multiple species proposed for listing that occupy
prairie habitats of Oregon and Washington, and included an analysis of
the potential economic impacts stemming from the proposed critical
habitat designation for Taylor's checkerspot butterfly, streaked horned
lark, and four subspecies of the Mazama pocket gopher (Thomomys mazama
ssp.). The proposed listing and critical habitat for the Mazama pocket
gophers are addressed in separate rulemakings.
(47) Comment: Several commenters took issue with the
characterization of the baseline in the DEA concerning airport
operations. For example, one commenter asserted that critical habitat
may engender incremental impacts even when the streaked horned lark is
present. In addition, the comment notes that favorable habitat at
airports, containing the PCEs, is the result of voluntary activities by
airport managers, which could be discontinued (i.e., as a result of
lost Federal funding), in which case the PCEs could disappear, the
sites would become unoccupied, and any subsequent consultation would
result solely from critical habitat.
Our Response: The U.S. Office of Management and Budget's (OMB)
guidelines for best practices concerning the conduct of economic
analysis of Federal regulations direct agencies to measure the costs of
a regulatory action against a baseline, which it defines as the ``best
assessment of the way the world would look absent the proposed
action.'' The baseline utilized in the DEA is the existing state of
regulation, prior to the designation of critical habitat, which
provides protection to the species under the Act, as well as under
other Federal, State, and local laws and guidelines. To characterize
the ``world without critical habitat,'' the DEA also endeavors to
forecast these conditions into the future over the time frame of the
analysis, recognizing that such projections are subject to uncertainty.
This baseline projection presumes that the species will be listed (as
critical habitat would not be designated absent a listing) and
therefore recognizes that the streaked horned lark will be subject to a
variety of Federal, State, and local protections throughout most of its
ranges, due to its listed status under the Act and regardless of the
designation of critical habitat.
We note that significant debate has occurred regarding whether
assessing the impact of critical habitat designations using this
baseline approach is appropriate, with several courts issuing divergent
opinions. Courts in several parts of the country, including the U.S.
Court of Appeals for the Ninth Circuit, which has jurisdiction in
Washington, Oregon, and California, have ruled that the decision about
whether to exclude areas from critical habitat should be based on the
incremental impacts of the rule. The Ninth Circuit cases were appealed
to the Supreme Court, which declined to hear them.
(48) Comment: Several commenters asserted that the DEA does not
fully account for, or sufficiently acknowledge, potential impacts to
airport development activities, revenues, and related opportunity
costs.
Our Response: During the preparation of the DEA, its authors
reached out to management officials at each of the seven airports
affected by the proposed designations and collected available planning
documents. Chapter 3 of the DEA discusses a variety of airport-related
projects and maintenance activities that would result in section 7
consultation, and considers how these consultations might be affected
by the presence of critical habitat. Based on the best available
information and the incremental effects memorandum prepared by the
Service, the DEA concludes that, for areas that are occupied by the
subspecies, critical habitat designation will not result in incremental
impacts beyond administrative costs incurred to consider adverse
modification during consultation.
(49) Comment: The Port of Portland states that their economic
assessment concerning this proposed designation was not included in the
DEA, and notes certain other issues, including: a clarification
concerning airport development activities that receive funding through
the U.S. Department of Transportation (USDOT) FAA; a typographical
error regarding unit labeling; and an assertion that the estimated
number of consultations is inaccurate.
Our Response: The identified economic assessment was reviewed and
utilized during the development of the DEA, and is cited in chapter 3
of the report. In the final economic analysis (FEA), we added
clarification concerning the USDOT FAA-funded source and fixed the unit
numbering error. In addition, further detail concerning the number of
consultations and analytic timeframe for the Port of Portland has been
added to the FEA.
(50) Comment: One submission expressed concern that critical
habitat designation will constrain dredging activities and alter
placement sites related to the Port of Kalama.
Our Response: The DEA discusses potential effects of critical
habitat designation on dredging activities, including those related to
the Port of Kalama and Sandy Island. As noted in chapter 3 of the DEA,
dredging activities occur on 8 of the 10 islands proposed for streaked
horned lark critical habitat in the Columbia River. Deposition of
dredge materials can create flat, open habitat that streaked horned
larks prefer, but dredging activities that occur during the nesting
season have the potential to increase individual mortality and cause
nest failure. Based on the review of historical and projected
conservation actions for the streaked horned lark concerning dredging
activities, and given that these areas are considered occupied by the
subspecies, the analysis concluded that critical habitat will not
result in incremental economic impacts to dredging activities, beyond
the administrative costs associated with consultation with the Service.
(51) Comment: Two commenters expressed concern that the listing and
designation of critical habitat for the Taylor's checkerspot butterfly
and Mazama pocket gophers (which will be addressed in separate rules)
may constrain gravel mining activities in Pierce and Thurston Counties,
Washington. One comment expressed specific concern about impacts to
planned gravel extraction in Subunit 1-D Rocky Prairie.
Our Response: The proposed critical habitat acreage in these areas
is considered to be occupied by at least one of the prairie species
noted. As noted in the DEA and related incremental effects memorandum,
should the six subspecies be formally listed under final rules, their
presence within critical habitat will require implementation of certain
conservation efforts to avoid jeopardy concerns. In occupied critical
habitat, consultation would therefore consider not only the potential
for jeopardy to the continued existence of the species, but also the
potential for destruction or adverse modification of critical habitat.
Because the ability of these subspecies to exist is very closely tied
to the quality of their
[[Page 61518]]
habitats, significant alterations of their occupied habitat may result
in jeopardy as well as adverse modification. Therefore, we anticipate
that section 7 consultation analyses will likely result in no
difference between recommendations to avoid jeopardy or adverse
modification in occupied areas of habitat. The analysis concludes that
incremental economic impacts of critical habitat designation will be
limited to additional administrative costs of additionally considering
critical habitat as part of section 7 consultation to the Service,
other Federal agencies, and private third parties. Note, however, that
additional detail concerning potential gravel mining activities in
proposed critical habitat, along with related consultation
requirements, has been added to the FEA.
In addition, the specifically identified subunit, Subunit 1-D Rocky
Prairie, was proposed as unoccupied critical habitat for Taylor's
checkerspot butterfly. This subunit has been removed from the final
designation upon a determination that this area is not essential to the
conservation of the species.
(52) Comment: One commenter stated that, in the DEA, economic costs
are overstated and that many economic benefits have not been included
in the analysis. Specifically, the comment asserted that there is no
basis to determine that the designation of critical habitat for the
streaked horned lark will have an additional economic impact beyond the
listing itself, and notes that birdwatching and related livability
amenities due to outdoor opportunities are important to Portland's
social vitality.
Our Response: A primary conclusion of the economic analysis is
that, in areas of proposed designation occupied by the species, limited
incremental impacts will occur beyond those administrative costs
associated with consultation. Further, in chapter 3, the DEA does
provide a qualitative discussion of potential ancillary benefits
(including recreational use) attributable to the conservation of these
species.
(53) Comment: One commenter stated that the DEA dismisses the need
to describe impacts in economic terms and instead focuses on biological
benefits only, citing paragraph 4 in the Executive Summary of the DEA
as an example.
Our Response: This comment misconstrues the language of this
paragraph. The DEA endeavors to provide a full rendering of the
designation's potential economic impacts, including defining a baseline
and assessing incremental effects, both direct and indirect. In the
context of weighing these costs against the ``benefits'' of the
designation, however, the benefits component focuses on the primary
``biological'' benefit related to species conservation, and puts less
emphasis on ancillary, or secondary, benefits flowing from species
conservation (e.g., improved environmental quality yielding human
health or recreational use benefits).
(54) Comment: One commenter noted that, concerning potential
ancillary benefits of the designation, airports are secure facilities
with limited and controlled public access. Thus, none of the potential
ancillary benefits cited in the DEA, such as recreational
opportunities, is relevant to the airport environment.
Our Response: We agree that, given the security environment at
airports, human use benefits are limited at airports. We note, however,
that the direct biological benefit of species conservation may still be
attributable to airport locations, and that certain ancillary benefits
(improved environmental quality due to landscape management) may also
still accrue. As previously mentioned, all non-Federal airport lands
are excluded from this final designation of critical habitat for the
streaked horned lark. Please see additional discussion under
Exclusions.
(55) Comment: One commenter expressed concern that, even when care
is taken in the review of projects and actions that are unlikely to
harm the long-term viability of the Taylor's checkerspot butterfly,
streaked horned lark, and Mazama pocket gopher, allowance of new
development could leave the community subject to potential lawsuits.
Our Response: Chapter 2 of the DEA discusses the issue of indirect
impacts potentially related to critical habitat, including the
triggering of other State and local laws, time delays, regulatory
uncertainty, and stigma. Within this context, the effect of third-party
litigation can represent an indirect effect. We note, however, that
forecasting the likelihood of third-party litigation and related
project delays or other constraints is considered too speculative for
the economic analysis. In addition, the DEA attributes most economic
effects to the presence of the species and jeopardy concerns, as
opposed to the designation of critical habitat.
Summary of Changes From Proposed Rule
We are designating a total of 1,941 ac (786 ha) of critical habitat
for the Taylor's checkerspot butterfly and a total of 4,629 ac (1,873
ha) of critical habitat for the streaked horned lark. We received a
number of site-specific comments related to critical habitat for these
two subspecies; completed our analysis of areas considered for
exclusion under section 4(b)(2) of the Act or for exemption under
section 4(a)(3) of the Act; reviewed the application of our criteria
for identifying critical habitat across the range of these two
subspecies to refine our designations; and completed the final economic
analysis of the designation as proposed. We fully considered all
comments from the public and peer reviewers on the proposed rule and
the associated economic analysis to develop this final designation of
critical habitat for the Taylor's checkerspot butterfly and streaked
horned lark. This final rule incorporates changes to our proposed
critical habitat based on the comments that we received and have
responded to in this document, and considers completed final management
plans to conserve the subspecies under consideration. Although we
received additional distribution data for the streaked horned lark on
agricultural lands in the Willamette Valley, this information did not
necessitate the designation of additional critical habitat. Because of
the fragmented and ephemeral nature of those areas on private lands, we
determined they do not meet our definition of critical habitat for the
streaked horned lark.
We have made some technical corrections to the document, and our
final designation of critical habitat reflects the following changes
from the proposed rule:
(1) We added one additional adult nectar resource to the list of
plants in the primary constituent elements for Taylor's checkerspot
butterfly: wild strawberry (Fragaria virginiana).
(2) Based on our analysis of the total area necessary for the
conservation of Taylor's checkerspot butterfly in Washington and
Oregon, we determined that approximately 447 ac (181 ha) of the
unoccupied critical habitat that we proposed are not essential for the
conservation of the subspecies based on comments and information
received. This finding of ``not essential'' did not result in the
removal of entire subunits for the Taylor's checkerspot butterfly, as
it did for the streaked horned lark (see below), but did reduce the
area of several subunits for the subspecies, both in Washington and
Oregon.
Our analysis of the proposed critical habitat for the streaked
horned lark determined that two of proposed critical habitat subunits
(in their entirety) do not meet the definition of critical habitat;
therefore these subunits were removed from the final designation. The
[[Page 61519]]
first of these two critical habitat subunits was identified as subunit
3-J in the proposed critical habitat rule and is commonly known as
Coffeepot Island. This small island of approximately 25 ac (10 ha) in
the Columbia River is not occupied by the streaked horned lark, and
although it presently supports some of the physical or biological
features utilized by the lark, without ongoing management it will not
maintain these characteristics into the foreseeable future. (Please
note, in this final rule, the critical habitat units have been
renumbered sequentially and the designation of critical habitat subunit
3-J is now assigned to Whites/Brown Island (see Table 2)). As we find
it unlikely that Coffeepot Island will provide suitable habitat for the
streaked horned lark in the future, we determined that this subunit is
not essential to the conservation of the subspecies, and does not meet
our definition of critical habitat.
In the second case, we determined that the subunit identified as 4-
G in the proposed critical habitat rule, M-DAC Farms in Oregon, does
not meet our definition of critical habitat for the streaked horned
lark. Although occupied at the time of listing, the PCEs at this site
are in a state of steady decline due to a conservation agreement that
focuses on restoring the landscape to wetland, a vegetative structure
unsuitable to maintaining habitat for the streaked horned lark. This
site is therefore unlikely to contribute to the recovery of the
streaked horned lark, and as it lacks the PCEs for the streaked horned
lark, it does not meet our definition of critical habitat for the
subspecies. M-DAC Farms (601 ac (243 ha) was therefore removed from the
final designation of critical habitat for the streaked horned lark.
(3) The Service approved the DOD's endangered species management
plans (ESMPs) under the INRMP for military installation JBLM for the
Taylor's checkerspot butterfly and streaked horned lark. The ESMPs are
species-specific, and contain site-specific conservation actions that
will be implemented as a component of the larger INRMP for the
installation. The Secretary has exempted lands at JBLM from critical
habitat under section 4(a)(3) of the Act, based on the approval of
these ESMPs. Lands exempted include approximately 2,324 ac (940 ha) for
the Taylor's checkerspot butterfly and 2,813 ac (1,138 ha) for the
streaked horned lark on JBLM. The area exempted represents
approximately 34 percent of the area proposed as critical habitat for
Taylor's checkerspot butterfly and 23 percent of the area proposed as
critical habitat for the streaked horned lark. For Taylor's checkerspot
butterfly, the exemption of military lands from critical habitat
resulted in the removal of three critical habitat subunits within Unit
1 and sequential renumbering of the remaining subunits designated in
this final rule (see Table 1). Training Area 7 South (TA7S), 91st
Division Prairie, and 13th Division Prairie were numbered 1-A, 1-B, and
1-C in the proposed rule, respectively. For the streaked horned lark,
the exemption of military lands combined with the exclusion under
section 4(b)(2) of the Act for non-Federal airports (see below)
resulted in the removal of Unit 1 in its entirety. Subunits in Unit 4
for the streaked horned lark were sequentially renumbered due to the
exclusion of non-Federal airports in Oregon (see Table 2 and Exclusions
section of this document).
(4) We carefully considered the benefits of inclusion and the
benefits of exclusion of specific areas in proposed critical habitat
under section 4(b)(2) of the Act, particularly in areas where
management plans specific to the Taylor's checkerspot butterfly and
streaked horned lark are in place, and where the maintenance and
fostering of important conservation partnerships were a consideration.
Based on the results of our analysis, we are excluding approximately
2,184 ac (885 ha) from our final critical habitat designation for
Taylor's checkerspot butterfly and 4,114 ac (1,664 ha) for the streaked
horned lark (see Exclusions, below). For Taylor's checkerspot
butterfly, two entire subunits of proposed critical habitat in Oregon
were excluded based on the Benton County Prairie Species HCP; these
include Fort Hoskins Historic Park (proposed critical habitat subunit
number 4-1) and Beazell Memorial Forest (proposed critical habitat
subunit number 4-2). The area excluded represents approximately 32
percent of the area proposed as critical habitat for the Taylor's
checkerspot butterfly and 32 percent of the area proposed as critical
habitat for the streaked horned lark.
Exclusion from critical habitat should not be interpreted as a
determination that these areas are unimportant, that they do not
provide physical or biological features essential to the conservation
of the species (for occupied areas), or are not otherwise essential for
conservation (for unoccupied areas); exclusion merely reflects the
Secretary's determination that the benefits of excluding those
particular areas outweigh the benefits of including them in the
designation.
Due to these changes in our final critical habitat designation, we
have updated our subunit numbering, descriptions, and critical habitat
maps, all of which can be found later in this document. This final
designation of critical habitat represents a reduction of 4,934 ac
(1,996 ha) from our proposed critical habitat for the Taylor's
checkerspot butterfly and 7,530 ac (3,047 ha) for the streaked horned
lark, for the reasons detailed above. Additional minor differences
between proposed and final critical habitat for both subspecies on the
order of roughly 20 ac (8 ha) beyond those detailed above are due to
minor boundary adjustments and simple rounding error.
Critical Habitat
It is our intent to discuss below only those topics directly
relevant to the designation of critical habitat for the Taylor's
checkerspot butterfly and streaked horned lark in this section of the
rule.
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
[[Page 61520]]
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 or 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. Our regulations direct us to 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. Furthermore, except in certain
circumstances determined by the Secretary, critical habitat is not to
include the entire geographical area which can be occupied by the
listed species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific and commercial data available.
Further, our Policy on Information Standards Under the Endangered
Species Act (published in the Federal Register on July 1, 1994 (59 FR
34271)), the Information Quality Act (section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658)), and our associated Information Quality Guidelines
provide criteria, establish procedures, and provide guidance to ensure
that our decisions are based on the best scientific data available.
They require our biologists, to the extent consistent with the Act and
with the use of the best scientific data available, to use primary and
original sources of information as the basis for recommendations to
designate critical habitat.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act, (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to insure 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
listed 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.
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 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 historical, geographical, and ecological
distributions of a species.
We derived the specific physical or biological features essential
for the Taylor's checkerspot butterfly and streaked horned lark from
studies of each subspecies' habitat, ecology, and life history as
described in detail in the Critical Habitat section of the proposed
rule to designate critical habitat published in the Federal Register on
October 11, 2012 (77 FR 61937). Additional information can also be
found in the final listing rule for the Taylor's checkerspot butterfly
and streaked horned lark, which is published elsewhere in today's
Federal Register. We have determined that the physical and or
biological features described in the proposed rule (October 11, 2012;
77 FR 61937) are essential to the conservation of the Taylor's
checkerspot butterfly and streaked horned lark, and have further
determined that these features may require special management
considerations or protection.
The designation of critical habitat is an authority restricted to
the boundaries of the United States; critical habitat cannot be
designated in a foreign country (50 CFR 424.12(h)). Both Taylor's
checkerspot butterfly and streaked horned lark range into Canada or
historically occurred there. In the
[[Page 61521]]
final listing rule, published elsewhere in the Federal Register today,
we discuss the population in Canada for the purpose of evaluating the
viability of the species and to inform our determination of those areas
within the United States that are essential for the conservation of the
subspecies. We do not have the authority to designate critical habitat
in Canada.
Taylor's Checkerspot Butterfly
Primary Constituent Elements for the Taylor's Checkerspot
Butterfly--Under the Act and its implementing regulations, we are
required to identify the physical or biological features essential to
the conservation of Taylor's checkerspot butterfly in areas occupied at
the time of listing, focusing on the features' primary constituent
elements. We consider primary constituent elements to be the elements
of physical or biological features that provide for the subspecies'
life-history processes and are essential to the conservation of the
subspecies.
Based on our current knowledge of the physical or biological
features and habitat characteristics required to sustain the
subspecies' life-history processes, we determine that the primary
constituent elements specific to the Taylor's checkerspot butterfly
are:
(i) Patches of early seral, short-statured, perennial bunchgrass
plant communities composed of native grass and forb species in a
diverse topographic landscape ranging in size from less than 1 ac up to
100 ac (0.4 to 40 ha) with little or no overstory forest vegetation
that have areas of bare soil for basking that contain:
(a) In Washington and Oregon, common bunchgrass species found on
northwest grasslands include Festuca roemeri (Roemer's fescue),
Danthonia californica (California oat grass), Koeleria cristata
(prairie Junegrass), Elymus glaucus (blue wild rye), Agrostis scabra
(rough bentgrass), and on cooler, high-elevation sites typical of
coastal bluffs and balds, Festuca rubra (red fescue).
(b) On moist grasslands found near the coast and in the Willamette
Valley, there may be Bromus sitchensis (Sitka brome) and Deschampsia
cespitosa (tufted hairgrass) in the mix of prairie grasses. Less
abundant forbs found on the grasslands include, but are not limited to,
Trifolium spp. (true clovers), narrow-leaved plantain (Plantago
lanceolata), harsh paintbrush (Castilleja hispida), Puget balsamroot
(Balsamorhiza deltoidea), woolly sunshine (Eriophyllum lanatum), nine-
leaved desert parsley (Lomatium triternatum), fine-leaved desert
parsley (Lomatium utriculatum), common camas (Camassia quamash), showy
fleabane (Erigeron speciosus), Canada thistle (Cirsium arvense), common
yarrow (Achillea millefolium), prairie lupine (Lupinus lepidus), and
sickle-keeled lupine (Lupinus albicaulis).
(ii) Primary larval host plants (narrow-leaved plantain and harsh
paintbrush) and at least one of the secondary annual larval host plants
(blue-eyed Mary (Collinsia parviflora), sea blush (Plectritis
congesta), or dwarf owl-clover (Triphysaria pusilla) or one of several
species of speedwell (marsh speedwell (Veronica scutella), American
speedwell (V. beccabunga var. americana), or thymeleaf speedwell (V.
serpyllifolia).
(iii) Adult nectar sources for feeding that include several species
found as part of the native (and one nonnative) species mix on
northwest grasslands, including, but not limited to: narrow-leaved
plantain; harsh paintbrush; Puget balsam root; woolly sunshine; nine-
leaved desert parsley; fine-leaved desert parsley or spring gold;
common camas; showy fleabane; Canada thistle; common yarrow; prairie
lupine; sickle-keeled lupine, and wild strawberry (Fragaria
virginiana).
(iv) Aquatic features such as wetlands, springs, seeps, streams,
ponds, lakes, and puddles that provide moisture during periods of
drought, particularly late in the spring and early summer. These
features can be permanent, seasonal, or ephemeral.
With this designation of critical habitat, we intend to identify
the physical or biological features essential to the conservation of
the subspecies, through the identification of the primary constituent
elements essential to support the life-history processes of the
subspecies. We are designating critical habitat within the geographical
area occupied by the subspecies at the time of listing. In addition, we
are designating some specific areas outside the geographical area
occupied by the subspecies at the time of listing that were
historically occupied, but are presently unoccupied, because we have
determined that these areas are essential for the conservation of the
subspecies.
Streaked Horned Lark
Primary Constituent Elements for the Streaked Horned Lark--Under
the Act and its implementing regulations, we are required to identify
the physical or biological features essential to the conservation of
the streaked horned lark in areas occupied at the time of listing,
focusing on the features' primary constituent elements. We consider
primary constituent elements to be the elements of physical or
biological features that provide for the subpecies' life-history
processes and are essential to the conservation of the subspecies.
Based on our current knowledge of the physical or biological
features and habitat characteristics required to sustain the
subspecies' life-history processes, we determine that the primary
constituent elements specific to the streaked horned lark are areas
having a minimum of 16 percent bare ground that have sparse, low-
stature vegetation composed primarily of grasses and forbs less than 13
in (33 cm) in height found in:
(1) Large (300-ac (120-ha)), flat (0-5 percent slope) areas within
a landscape context that provides visual access to open areas such as
open water or fields, or
(2) Areas smaller than described in (1), but that provide visual
access to open areas such as open water or fields.
With this designation of critical habitat, we intend to identify
the physical or biological features essential to the conservation of
the subspecies, through the identification of the primary constituent
elements sufficient to support the life-history processes of the
subspecies. All of the units designated as critical habitat are
currently occupied by the streaked horned lark and contain the primary
constituent elements to support the life-history needs of the
subspecies.
Special Management Considerations or Protections--All areas we are
designating as critical habitat will require some level of management
to address the current and future threats to the Taylor's checkerspot
butterfly and streaked horned lark and to maintain or restore the PCEs.
A detailed discussion of activities influencing the Taylor's
checkerspot butterfly and streaked horned lark and their habitats can
be found in the final listing rule published elsewhere in today's
Federal Register. Threats to the physical or biological features that
are essential to the conservation of these subspecies and that may
warrant special management considerations or protection include, but
are not limited to: (1) Loss of habitat from conversion to other uses;
(2) control of nonnative, invasive species; (3) development; (4)
construction and maintenance of roads and utility corridors; and (5)
habitat modifications brought on by succession of vegetation from the
lack of disturbance, both small and large scale. These threats also
have the potential to affect the PCEs if they are conducted within or
adjacent to designated units.
[[Page 61522]]
Taylor's Checkerspot Butterfly
The physical or biological features essential to the conservation
of the Taylor's checkerspot butterfly may require special management
considerations or protection to improve the viability and distribution
of habitat suitable for the subspecies. These include preventing the
establishment of invasive, nonnative and native woody species, and
hastening restoration by actively managing sites to establish native
plant species and the structure of the plant community that is suitable
for the Taylor's checkerspot butterfly. Restoration and maintenance of
occupied Taylor's checkerspot butterfly sites will require active
management to plan, restore, enhance, and manage habitat using an
approach that resets the vegetation composition and structure to an
early seral stage. Management actions that produce suitable conditions
for Taylor's checkerspot butterflies and reset the ecological clock to
early seral conditions favored by the butterfly include prescribed
fires, mechanical harvesting of trees, activities such as hand planting
or mechanical planting of grasses and forbs, and the judicious use of
herbicides for nonnative, invasive species control.
These early-seral conditions favor the production and maintenance
of plantain, paintbrush, and other larval host plants in a short-
structure vegetation community that allows utilization of the plants by
the Taylor's checkerspot butterfly. Areas where the Taylor's
checkerspot butterfly occupies a site should have limited soil and
vegetation disturbance at times when the larvae are active, which
extends from late February when post-diapause larvae are active to late
June when pre-diapause larvae are on site. Other activities that could
cause trampling or impacts to the larvae and that should be minimized,
reduced, or restricted during larval feeding include use of the site by
off-road vehicles, military training using vehicles or impacts caused
by large infantry (foot soldiers), or activities that transport or
spread nonnative plants, and the risk of wildfire or prescribed fire.
We reemphasize here the acknowledgement that Taylor's checkerspot
butterfly, while most obvious during the flight period and when larvae
are active, are year-round residents and may be vulnerable to most
types of direct disturbance throughout the year.
Streaked Horned Lark
The physical or biological features essential to the conservation
of the streaked horned lark may require special management
considerations or protection to ensure the provision of early seral
conditions and landscape context of sufficient quantity and quality for
long-term conservation and recovery of the subspecies. Activities such
as mowing, burning, grazing, tilling, herbicide treatment, grading,
beach nourishment, or placement of dredge material can be used to
maintain or restore nesting and wintering habitats. Regular disturbance
is necessary to create and maintain suitable habitat, but the timing of
management is important. The management actions should be conducted
outside of the breeding season to avoid the destruction of nests and
young, or if habitat management must be done during the breeding
season, it should be done in a way that minimizes destruction of nests
or harassment of individuals. Nesting success is highest in locations
with restricted public use or entry such as military facilities,
airports, islands, wildlife refuges, or sites that are remote or
difficult to access.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(1)(A) of the Act, we use the best
scientific and commercial data available to designate critical habitat.
We review available information pertaining to the habitat requirements
of the species, and begin by assessing the specific geographic areas
occupied by the species at the time of listing. If such areas are not
sufficient to provide for the conservation of the species, in
accordance with the Act and its implementing regulation at 50 CFR
424.12(e), we then consider whether designating additional areas
outside the geographic areas occupied at the time of listing may be
essential to ensure the conservation of the species. We consider
unoccupied areas for critical habitat when a designation limited to the
present range of the species may be inadequate to ensure the
conservation of the species. In this case, since we are listing
simultaneously with the designation of critical habitat, all areas
presently occupied by Taylor's checkerspot butterfly or streaked horned
lark are presumed to constitute those areas occupied at the time of
listing; those areas currently occupied by the subspecies are
identified as such in each of the unit or subunit descriptions below.
These descriptions similarly identify which of the units or subunits
are believed to be unoccupied at the time of listing. Our determination
of the areas occupied at the time of listing and our rationale for how
we determined specific unoccupied areas to be essential the
conservation of the subspecies are provided below.
We plotted the known locations of the Taylor's checkerspot
butterfly and streaked horned lark where they occur in Washington and
Oregon using 2011 National Agriculture Imagery Program (NAIP) digital
imagery in ArcGIS, version 10 (Environmental Systems Research
Institute, Inc.), a computer geographic information system program.
To determine if the currently occupied areas contain the primary
constituent elements, we assessed the life-history components and the
distribution of the subspecies through element occurrence records in
State natural heritage databases and natural history information on
each of the subspecies as they relate to habitat. We first considered
whether the presently occupied areas were sufficient to conserve the
subspecies. If not, to determine if any unoccupied sites met the
criteria for critical habitat, we then considered: (1) The importance
of the site to the overall status of the subspecies to prevent
extinction and contribute to future recovery of the subspecies; (2)
whether the area presently provides the essential physical or
biological features, or could be managed and restored to contain the
necessary physical or biological features to support the subspecies;
and (3) whether individuals were likely to colonize the site. We also
considered the potential for reintroduction of the subspecies, where
anticipated to be necessary (for Taylor's checkerspot butterfly only).
As required by section 4(b)(2) of the Act, we used the best
scientific data available to designate critical habitat. We reviewed
available information pertaining to the habitat requirements of these
subspecies. In accordance with the Act and its implementing regulation
at 50 CFR 424.12(e), we considered 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
subspecies. We are designating critical habitat in areas within the
geographical area occupied by the subspecies at the time of listing in
2013. For Taylor's checkerspot butterfly only, we also are designating
specific areas outside the geographical area occupied by the subspecies
at the time of listing that were historically occupied, but may be
presently unoccupied, based on the Secretary's determination that these
areas are essential for the conservation of the subspecies.
When we are determining which areas should be designated as
critical habitat,
[[Page 61523]]
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,
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. In this case we used existing occurrence data for
each subspecies and identified the habitat and ecosystems upon which
they depend. These sources of information included, but were not
limited to:
(1) Data used to prepare the proposed and final rules to list the
subspecies;
(2) Information from biological surveys;
(3) Peer-reviewed articles, various agency reports, and databases;
(4) Information from the U.S. Department of Defense--Joint Base
Lewis-McChord (JBLM) and other cooperators;
(5) Information from species experts;
(6) Data and information presented in academic research theses; and
(7) Regional Geographic Information System (GIS) data (such as
species occurrence data, land use, topography, aerial imagery, soil
data, and land ownership maps) for area calculations and mapping.
The critical habitat designation is defined by the maps, as
modified by any accompanying regulatory text, presented at the end of
this document in the Regulation Promulgation section. 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-R1-ES-
2013-0009, on our Web site at http://www.fws.gov/wafwo/TCBSHL.html/,
and, by appointment, at the Service's Washington Fish and Wildlife
Office (see FOR FURTHER INFORMATION CONTACT, above).
In all cases, when determining critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement (such as roads), and other structures because
such lands lack the essential physical or biological features for the
Taylor's checkerspot butterfly and streaked horned lark. The scale of
the maps we prepared under the parameters for publication within the
Code of Federal Regulations may not reflect the exclusion of such
developed lands. Any such lands inadvertently left inside critical
habitat boundaries shown on the maps of this rule have been excluded by
text in the rule and are not designated as critical habitat. Therefore,
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.
Taylor's Checkerspot Butterfly
Occupied Areas--For the Taylor's checkerspot butterfly, we are
designating critical habitat within the geographical area occupied by
the subspecies at the time of listing, as well as in unoccupied areas
that we have determined to be essential for the conservation of the
subspecies (described below). These presently occupied areas provide
the physical or biological features essential to the conservation of
the subspecies, which may require special management considerations or
protection. We determined occupancy in these areas based on recent
survey information. All sites occupied by Taylor's checkerspot
butterfly have survey data as recently as 2011, except for the U.S.
Forest Service sites on the north Olympic Peninsula where data are as
recent as 2010 (Potter 2011; Linders 2011; Ross 2011; Holtrop 2010;
Severns and Grossboll 2011). In addition, there have been some recent
experimental translocations of Taylor's checkerspot butterflies to
sites where it had been extirpated within its historical range. If
translocated populations have been documented as successfully
reproducing, we considered those sites to be presently occupied by the
subspecies. Areas designated as critical habitat for Taylor's
checkerspot butterfly are representative of the known historical
geographic distribution for the subspecies, outside of Canada.
We are designating three units of critical habitat based on
sufficient elements of physical or biological features being present to
support life-history processes for the Taylor's checkerspot butterfly.
These 3 units are further divided into 11 subunits. Some subunits
within the units contain all of the identified elements of physical and
biological features and support multiple life-history processes; some
subunits contain at least one or more elements of the physical and
biological features necessary to support the Taylor's checkerspot
butterfly's particular use of that habitat. Because we determined that
the areas presently occupied by Taylor's checkerspot butterfly are not
sufficient to provide for the conservation of the subspecies, we have
additionally identified some subunits that are presently unoccupied,
but that the Secretary has determined to be essential to the
conservation of the subspecies. Therefore, we are also designating
these unoccupied areas as critical habitat for the Taylor's checkerspot
butterfly, as explained below.
Unoccupied Areas--We are designating six subunits as critical
habitat for the Taylor's checkerspot butterfly that are not presently
occupied by the subspecies, but that the Secretary has determined
essential for the conservation of the subspecies. There has been a
rapid decline in the spatial distribution of prairies (grassland
habitat) throughout the range of the Taylor's checkerspot butterfly; as
a result, the present distribution of Taylor's checkerspot butterfly is
disjunct and isolated throughout the subspecies' historical range. If
the Taylor's checkerspot butterfly is to recover, there must be
sufficient suitable habitat available for population expansion and
growth that is potentially connected in such a way as to allow for
dispersal, and these sites must receive routine and sustained
management to maintain the early seral conditions essential to the
conservation of the subspecies. We therefore evaluated areas outside
the presently occupied patches to identify unoccupied habitat areas
essential for the conservation of the subspecies. We are designating as
critical habitat some areas adjacent to known occurrences of the
Taylor's checkerspot butterfly but that may currently be unoccupied to
provide for population expansion and growth, which is essential for the
conservation of the subspecies.
We have identified these unoccupied areas as essential for the
conservation of the Taylor's checkerspot butterfly because they are
located strategically between, and in some cases, adjacent to, occupied
areas from which the butterfly may disperse; these areas contain one or
more of the PCEs for the Taylor's checkerspot butterfly (although the
presence of one or more PCEs is not a statutory requirement for
unoccupied critical habitat), and are all receiving or are slated to
receive restoration treatments that will increase the amount of
suitable habitat available.
Streaked Horned Lark
Occupied Areas--We are designating two units of critical habitat
for the streaked horned lark based on sufficient elements of physical
or biological features being present to support life-history processes
during the breeding or
[[Page 61524]]
winter seasons. These 2 units are further divided into 16 subunits. All
of the units designated as critical habitat are presently occupied by
the streaked horned lark. Some subunits within the units contain all of
the identified elements of physical or biological features and support
multiple life-history processes; some subunits contain at least one or
more elements of the physical or biological features necessary to
support the streaked horned lark's particular use of that habitat.
Unoccupied Areas--There are no unoccupied subunits designated as
critical habitat for the streaked horned lark.
Final Critical Habitat Designation
We are designating four units total as critical habitat for the
Taylor's checkerspot butterfly and streaked horned lark. The critical
habitat areas described below constitute our best assessment at this
time of areas that meet the definition of critical habitat for these
subspecies. Those four units are:
(1) The South Sound Unit (Unit 1), which has critical habitat
subunits for only the Taylor's checkerspot butterfly.
(2) The Strait of Juan de Fuca Unit (Unit 2), which has critical
habitat subunits for only the Taylor's checkerspot butterfly.
(3) The Washington Coast and Columbia River Unit (Unit 3), which
has critical habitat subunits for only the streaked horned lark.
(4) The Willamette Valley Unit (Unit 4), which has critical habitat
subunits for both the Taylor's checkerspot butterfly and streaked
horned lark.
Taylor's Checkerspot Butterfly--Units 1, 2, and 4
We are designating three units as critical habitat for the Taylor's
checkerspot butterfly. The critical habitat areas we describe below
constitute our current best assessment of areas that meet the
definition of critical habitat for the subspecies. The three units we
designate as critical habitat are: Unit 1, South Sound--1,143 ac (462
ha) in Washington State (545 ac (220 ha) of County ownership, 420 ac
(170 ha) of private ownership, and 178 ac (72 ha) of lands owned by a
Port, local municipality, or nonprofit conservation organization); Unit
2, Strait of Juan de Fuca--779 ac (315 ha) in Washington State (160 ac
(65 ha) of Federal ownership, 188 ac (76 ha) of State ownership, 201 ac
(81) of private ownership, and 229 ac (93 ha) of land owned by a Port,
local municipality, or nonprofit organization); and Unit 4-D,
Willamette Valley--20 ac (8 ha) of privately owned lands in Oregon. The
approximate area of each critical habitat unit and its relevant
subunits, as well as land ownership within each unit, is shown in Table
1.
Table 1--Critical Habitat Units Designated for Taylor's Checkerspot Butterfly. Note: Area Sizes May Not Sum Due to Rounding. Area Estimates Reflect All
Land Within Critical Habitat Unit Boundaries
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 1: South Sound Federal State County Private Other * Currently
------------------------------------------------------------------------------------------------------------------------------------------- occupied
-------------
Subunit Name Ac(Ha) Ac-(Ha) Ac(Ha) Ac(Ha) Ac(Ha) Y/N
--------------------------------------------------------------------------------------------------------------------------------------------------------
1-A............................... Rocky Prairie................... 0 0 0 0 43 (17) N
1-B............................... Tenalquot Prairie............... 0 0 0 0 135 (55) N
1-C............................... Glacial Heritage................ 0 0 545 (220) 0 0 Y
1-D............................... Rock Prairie.................... 0 0 0 244 (99) 0 N
1-E............................... Bald Hill....................... 0 0 0 176 (71) 0 N
Unit 1 Totals................... 0 (0) 0 (0) 545 (220) 420 (170) 178 (72) ............
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 2: Strait of Juan De Fuca:
-----------------------------------
2-A............................... Deception Pass State Park....... 0 149 (60) 0 0 0 N
2-B............................... Central Whidbey................. 0 39 (16) 0 0 190 (77) N
2-C............................... Elwha........................... 0 0 0 51 (20) 39 (16) Y
2-D............................... Sequim.......................... 0 0 0 151 (61) 0 Y
2-E............................... Dungeness....................... 160 (65) 0 0 0 0 Y
Unit 2 Totals................... 160 (65) 188 (76) 0 201 (81) 229 (93) ............
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 4: Willamette Valley:
-----------------------------------
4-D........................... Fitton Green-Cardwell Hill...... 0 0 0 20 (8) 0 (0) Y
Unit 4 Totals................... 0 0 0 20 (8) 0 (0) ............
--------------------------------------------------------------------------------------------------------------------------------------------------------
Grand Total--all Units.......... 160 (65) 188 (76) 545 (220) 642 (259) 407 (166) ............
===================================================================================
GRAND TOTAL ALL UNITS, ALL ............ ............ 1,941 (786) ............ ............ ............
OWNERSHIP.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Other = Ports, local municipalities, and nonprofit conservation organizations.
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for the Taylor's checkerspot
butterfly, below.
Unit 1: South Sound--Taylor's Checkerspot Butterfly
The South Sound Unit consists of 1,143 acres (462 ha) of land
designated for the Taylor's checkerspot butterflies in five subunits.
This unit is found entirely in Thurston County, Washington.
Subunit Descriptions
1-A Rocky Prairie--(Thurston County, Washington). The Rocky Prairie
critical habitat subunit is composed of two disjunct habitat patches
comprising a total of 43 ac (17 ha). The first patch is a linear strip
of prairie under private ownership. It is approximately 15 ac (6 ha) in
size and bounded on the north by residential homes, on the east by the
Burlington Northern railroad line, the south by forest (approximately
443 ft (135 m) north of where the Burlington Northern rail line
intersects Old Hwy 99), and on the west by the Washington Department of
Natural Resources Rocky Prairie Natural Area Preserve (NAP). The second
prairie patch of this subunit is 29 ac (12 ha) of property owned by a
conservation organization known as
[[Page 61525]]
Wolf Haven International. It is located southeast of the Burlington
Northern habitat patch. Wolf Haven is bounded on the north by Offut
Lake Road, and bounded by a service road in all but the extreme
northeastern corner of the property. The landscape on the east, west,
and south boundaries of the prairie at Wolf Haven is delineated by
mixed Garry oak and conifer forest (east), or conifer forest (west and
south). Both habitat patches within this subunit are unoccupied at the
time of listing.
This subunit is within a matrix of historically occupied patches
from which Taylor's checkerspot butterfly has been completely
extirpated. We have determined this subunit is essential for the
conservation of the Taylor's checkerspot butterfly because it has the
potential for restoration of the physical or biological features
sufficient to enable the reintroduction of Taylor's checkerspot
butterfly. In addition, although currently unoccupied, this area
presently provides many of the essential features to support long-term
conservation and recovery of the Taylor's checkerspot butterfly. The
subunit is composed of grasslands and includes oak woodland margins,
and some transitional, colonization (first growth) Douglas-fir forest
within the greater prairie landscape. Several PCEs, including landscape
heterogeneity and diverse and abundant larval and adult plants
resources, are present.
1-B Tenalquot Prairie--(Thurston County, Washington). The Tenalquot
Prairie subunit is a privately owned conservation area of approximately
135 ac (55 ha) in size and part of the larger, historically contiguous
Tenalquot Prairie, the majority of which occurs on JBLM. The northern
boundary of this subunit is a fenceline boundary, which separates South
Weir prairie on JBLM from the adjacent private land. The western
boundary of this subunit is a large pasture clearly delineated by a
fence line, and it is bordered on the southeast by Military Road. This
subunit is unoccupied at the time of listing.
We have determined this subunit is essential for the conservation
of the Taylor's checkerspot butterfly because it would provide for the
reintroduction and reestablishment of Taylor's checkerspot butterfly.
Although currently unoccupied, this area presently provides many of the
physical or biological features necessary to support the long-term
conservation and recovery of Taylor's checkerspot butterfly and has the
potential to serve as metapopulation center within a larger prairie
landscape context (~2,000 ac (810 ha) in the south region of Thurston
County. The physical or biological features present at this site
include landscape heterogeneity, bare ground for basking, and diverse
and abundant larval and adult plant resources. This subunit is
periodically managed using prescribed burning as well as with
mechanical methods to remove Scot's broom (Cytisus scoparius) and to
sustain early seral conditions.
1-C Glacial Heritage--(Thurston County, Washington). Glacial
Heritage is a large, County-owned property managed with conservation,
research, and education as its primary objectives. The property
consists of more than 1,200 acres, with approximately 545 ac (220 ha)
designated as critical habitat. The northwestern boundary is an
abandoned railroad line, and to the direct north are rural residential
properties; the eastern boundary of the preserve is the Black River,
and the southern boundary is owned by two private landowners: one is a
large industrial tree farm where conifer seedlings are grown, and the
other is dominated by pasture grown for haying. The southern border is
clearly defined by the land use change along the fenceline. This
subunit is occupied at the time of listing, and provides the essential
physical or biological features for the Taylor's checkerspot butterfly,
including diverse topography, abundant and diverse larval and adult
nectar plant resources, a water course, and areas of bare ground for
basking due to ongoing, active management.
Threats to the physical or biological features that are essential
to the conservation of this species and may warrant special management
considerations or protections include, but are not limited to, the
inadvertent short-term negative impacts of restoration activities, such
as burning, mowing, and the use of herbicides; control of native and
nonnative invasive woody species such as Scot's broom and Douglas fir
(Pseudotsuga menziesii), as well as control of invasive Mediterranean
grasses; habitat modifications brought on by succession of vegetation
from the lack of disturbance, at a small and large scale; disease
affecting larval host plants; and the effects of climate change.
Special management considerations may be required to provide protection
to larval and adult food resources by reducing human disturbance during
the flight season, and when eggs and early instar larvae are present.
1-D Rock Prairie--(Thurston County, Washington). We are designating
approximately 244 ac (99 ha) of critical habitat on the northern
portion of Rock Prairie, a large, privately owned property in south
Thurston County. The subunit has diverse landscape features with
mounded prairie, old field pasture, oak woodland, and conifer forest.
The northern boundary is delineated by dense conifer forests, the
southern border is State Highway 99 (referred to as old 99), the
western boundary is clearly delineated by rural residential lots, and
the eastern border is the urban growth boundary for the town of Tenino,
Washington. This subunit is unoccupied at the time of listing.
This historically occupied subunit is essential for the
conservation of the Taylor's checkerspot butterfly as it presently
provides many of the features necessary to support long-term
conservation and recovery of the Taylor's checkerspot butterfly. These
include diverse topography with swales and terraces, abundant and
diverse larval and adult food resources, and a location close to a
water course formed by Scatter Creek.
1-E Bald Hill--(Thurston County, Washington). The Bald Hill subunit
is a collection of balds (shallow-soil areas without typical conifer
vegetation) and former clearcut areas that have not regenerated and now
maintain features of open habitat that produce larval and adult food
resources that can be utilized by the Taylor's checkerspot butterfly.
All independent, isolated habitat patches are surrounded by conifer
forests on all sides. Some patches are bordered by WDNR roads, and
others are bordered by private roads used for fire control and to
access the forested property. The Bald Hill subunit comprises a total
of 176 ac (71 ha) (rounded up). The western habitat patch of this
subunit is approximately 110 ac (45 ha), and the eastern patch is
approximately 65 ac (26 ha); both are unoccupied at the time of
listing.
The Taylor's checkerspot butterfly was recently extirpated from
this historically occupied subunit. We have determined it is essential
for the conservation of the Taylor's checkerspot butterfly because it
has the potential to provide for the reintroduction and reestablishment
of Taylor's checkerspot butterfly and to support recovery of the
subspecies. This area presently contains many of the features to
support long-term conservation and recovery of the Taylor's checkerspot
butterfly, including a diverse topography of balds, steep slopes,
canyons, oak glades, a rich diversity of larval and adult food
resources, and patches of bare soil for basking and resting. This
particular critical habitat subunit is unique in that it provides the
only bald habitat for Taylor's checkerspot butterfly at low elevation
within Thurston County.
[[Page 61526]]
Unit 2: Strait of Juan de Fuca--Taylor's Checkerspot Butterfly
The Strait of Juan de Fuca Unit is composed of 779 acres (315 ha)
made up of balds, former clearcuts, coastal bluffs, coastal back dunes,
and prairie in five subunits located in Clallam County and Island
County, Washington.
Subunit descriptions
2-A Deception Pass State Park--(Island County, Washington).
Deception Pass State Park is owned and managed by Washington State
Parks. The subunit contains approximately 149 ac (60 ha) of designated
critical habitat found along low-lying beaches (coastal dunes) and on
balds along high, south-facing slopes within the park. These areas
include the shoreline along Bowman Bay, Bowman Hill and Beach,
Reservation Head, Pass Island, Goose Rock, and West Beach, all within
the park. Deception Pass State Park is divided by Highway State 20, and
bordered by the portion of Puget Sound that forms Deception Pass to the
north, and to the south by private rural residential properties. This
park was historically occupied by Taylor's checkerspot butterfly, but
at this time the subunit is unoccupied.
We have determined this subunit is essential for the conservation
of the subspecies because it has the potential for reintroduction and
reestablishment of the Taylor's checkerspot butterfly to support
recovery. In addition, although currently unoccupied, this area
presently provides many of the features to support a reintroduced
population of Taylor's checkerspot butterfly, including diverse
topography with balds and beaches, abundant larval and adult food
resources, areas of bare soil for basking of larvae and adults, and
water sources made up of saltwater along the western shoreline and a
freshwater wetland.
2-B Central Whidbey--(Island County, Washington). This subunit is
located on Whidbey Island in Washington, and comprises a total of 229
ac (92 ha), and includes Ebey's Landing (~87 ac (35 ha)), the Naas-
Admiralty Inlet Conservation Area (~8 ac (3 ha)), and the former Smith
Prairie (~134 ac (54 ha)). The Central Whidbey subunit is made up of
two distinct patches: one is located along the central-west coast on
coastal bluffs of the island (Ebey), and the second (Smith Prairie) is
located on relatively flat prairie located centrally-north on the
island. The coastal area is bordered by Puget Sound to the west, and
rural residential property and farmland to the east. The Smith Prairie
is surrounded by rural residential properties on all sides; Parker Road
runs along the western border of the property, and Morse Road is found
along the south boundary. This subunit was historically occupied but is
currently unoccupied.
We have determined this subunit is essential for the conservation
of the subspecies because it has the potential for reintroduction and
reestablishment of Taylor's checkerspot butterfly to support recovery.
In addition, although currently unoccupied, this area presently
provides many of the features to support a reintroduced population of
Taylor's checkerspot butterfly, including diverse topography with
coastal bluffs and beaches, abundant larval and adult food resources,
areas of bare soil, and water sources made up of a freshwater wetland,
and saltwater along the western shoreline.
2-C Elwha--(Clallam County, Washington). The Elwha critical habitat
subunit is composed of private lands in Clallam County made up of
balds, and former clear cut areas within a landscape of conifer
forests. The subunit polygons adjoin occupied patches owned and managed
by the WDNR, one is owned and managed by a nongovernmental conservation
organization, the Center for Natural Lands Management, and the other
small parcel is owned by a private timber company. These two patches
are found primarily on the south slope of Dan Kelly Ridge, and they are
separated by essential habitat owned by WDNR that has been excluded due
to an HCP providing for species-specific habitat management.
The habitat patches at both locations are bounded by conifer
forests. The balds at each of these locations are presently occupied by
the Taylor's checkerspot butterfly, which has been observed flying up
and down the steep slopes and onto private lands. Both of these
locations contain essential physical or biological features, including
topographic heterogeneity, abundant and diverse larval and adult food
resources, and bare soil for basking and resting. Puddles on the road
provide a water source during the adult flight season.
Threats to the physical or biological features that are essential
to the conservation of this species and may warrant special management
considerations or protections include, but are not limited to,
development; the inadvertent short-term negative impacts of restoration
activities, such as control of native and nonnative, invasive, woody
species such as Scot's broom, snowberry (Symphoricarpos albus), and
Douglas fir; the use of herbicides; habitat modifications brought on by
succession of vegetation from lack of disturbance, at a small and large
scale; disease affecting larval host plants; and the effects of climate
change. The physical or biological features essential to the
conservation of the species may require special management
considerations or protection to sustain the open conditions that are
needed to manage for and sustain the larval and adult food resources.
Special management considerations may be required to provide protection
to larval and adult food resources by reducing human disturbance during
the flight season, and when eggs and early instar larvae are present.
2-D Sequim--(Clallam County, Washington). Sequim is a private
property estate and farm of low-lying stabilized dune habitat of
approximately 151 ac (61 ha). The subunit includes stabilized dunes and
beach habitat adjacent to the Strait of Juan de Fuca; it is
approximately 20 ft (6 m) above sea level. The landowner has been
working cooperatively with the WDFW to manage their property for
multiple uses, including the conservation of Taylor's checkerspot
butterfly. The subunit is occupied at the time of listing.
The Sequim subunit contains several essential physical or
biological features, including landscape heterogeneity with fore and
back dune areas and terraces; rich and abundant larval and adult food
resources; a marsh; and bare soil for basking and resting.
Threats to the physical or biological features that are essential
to the conservation of this species and may warrant special management
considerations or protections include, but are not limited to,
development; the inadvertent short-term negative impacts of restoration
activities; habitat modifications brought on by succession of
vegetation from lack of disturbance, at a small and large scale;
disease affecting larval host plants; and the effects of climate
change. The physical or biological features essential to the
conservation of the species may require special management
considerations or protection to sustain the open conditions that are
needed to manage for and sustain the larval and adult food resources.
Special management considerations may be required to provide protection
to larval and adult food resources by reducing human disturbance during
the flight season, and when eggs and early instar larvae are present.
2-E Dungeness--(Clallam County, Washington). The Dungeness subunit
is found entirely on U.S. Forest Service (USFS) land on the northeast
Olympic Peninsula. This subunit comprises a
[[Page 61527]]
total of 160 ac (65 ha) and is composed of bald habitat, and former
clearcuts that function similarly to balds. The three occupied areas
within this subunit and are known as Bear Mountain (low elevation), 3
O'Clock Ridge (middle elevation) (which is composed of two habitat
patches), and the upper Dungeness (highest elevation). These locations
on USFS lands are the highest elevations known to be occupied by
Taylor's checkerspot butterflies. The Bear Mountain location is
entirely surrounded by conifer forests and originated as a small
harvest unit that functions similar to a bald. 3 O'Clock ridge is
bounded by the upper Dungeness Road on the northwest boundary, Cougar
Creek to the northeast, Bungalow creek to the southwest, and conifer
forests to the southeast of the occupied unit. Upper Dungeness is
bounded by an unnamed creek to the northeast and Mueller Creek to the
southwest, and by conifer forests to the southeast of the occupied
unit. All habitat patches within this subunit are presently occupied by
the Taylor's checkerspot butterfly.
The subunit contains several essential physical or biological
features, including landscape heterogeneity, abundant larval and adult
food resources, nearby streams, and plentiful areas of bare ground for
basking and resting. Early restoration work conducted by USFS has
included tree harvesting and removal, which has resulted in the
expansion of larval and adult food resources in this habitat.
Threats to the physical or biological features that are essential
to the conservation of this species and may warrant special management
considerations or protections include, but are not limited to, the
inadvertent short-term negative impacts of restoration activities and
control of native and nonnative, woody species; the use of herbicides
that my impact larval and adult nectar resources; habitat modification
brought on by succession of vegetation from lack of disturbance, at a
small and large scale; disease affecting larval host plants; and the
effects of climate change. The physical or biological features
essential to the conservation of the species may require special
management considerations or protection to sustain the open conditions
that are needed to manage for and sustain the larval and adult food
resources. Special management considerations may be required to provide
protection to larval and adult food resources by reducing human
disturbance during the flight season, and when eggs and early instar
larvae are present.
Unit 4: Willamette Valley--Taylor's Checkerspot Butterfly
Unit 4, located in the Willamette Valley, is the only critical
habitat unit that includes critical habitat for both the streaked
horned lark and Taylor's checkerspot butterfly. Unit 4 includes four
subunits in the State of Oregon; three for the streaked horned lark (4-
A, 4-B, and 4-C; described below), and a single subunit (4-D) for the
Taylor's checkerspot butterfly in Benton County.
Unit 4-D Fitton Green-Cardwell Hill--(Benton County, Oregon).
Fitton Green-Cardwell Hill is located in the eastern foothills of the
Coastal Range on the western edge of the Willamette Valley. The habitat
is composed of multiple small natural openings of approximately 3 ac (1
ha) in size within a conifer-oak forest landscape. These habitat
patches collectively comprise the 20 ac (8 ha) that constitute Subunit
4-D. The northern patch of this subunit is a BPA right-of-way that
passes through a large occupied patch of county-owned habitat that
provides conservation benefit to the Taylor's checkerspot butterfly
through the Benton County Prairie Species HCP. This subunit is
currently occupied by the Taylor's checkerspot butterfly.
This subunit contains several of the essential physical or
biological features for the Taylor's checkerspot butterfly, including
native perennial bunchgrass plant communities with abundant larval and
adult food resources, landscape heterogeneity, and bare soil for
basking and resting.
Threats to the physical or biological features that are essential
to the conservation of this species and may warrant special management
considerations or protections include, but are not limited to, the
inadvertent short-term negative impacts of restoration activities such
as control of native and nonnative, invasive, woody species and
invasive Mediterranean grasses through mechanical means and with
herbicide; habitat modification due to succession of vegetation in the
absence of disturbance, at a small and large scale; impacts of disease
on larval food plants; and climate change. The physical or biological
features essential to the conservation of Taylor's checkerspot
butterfly may require special management considerations or protection
to sustain short-statured vegetation structure and to reduce human
disturbance during the flight season or when eggs and early instar
larvae are present. The physical or biological features of this site
may be particularly vulnerable to the effects of recreational use, such
as trampling of vegetation.
Streaked Horned Lark--Units 3 and 4
We are designating as critical habitat areas that we have
determined are occupied at the time of listing and contain sufficient
elements of physical or biological features to support life-history
processes essential to the conservation of the streaked horned lark. We
are designating two units as critical habitat for the streaked horned
lark. The critical habitat areas we describe below constitute our
current best assessment of areas that meet the definition of critical
habitat for the subspecies. The two units we designate as critical
habitat are: Unit 3--Washington Coast and Columbia River (with 13
subunits), and Unit 4--Willamette Valley (with 3 subunits). The
Washington Coast and Columbia River Unit (Unit 3) totals 2,900 ac
(1,173 ha) and includes 564 ac (228 ha) of Federal ownership, 2,209 ac
(894 ha) of State-owned lands, and 126 ac (51 ha) of private lands. The
Willamette Valley Unit (Unit 4) totals 1,729 ac (700 ha) and is
entirely composed of Federal lands. We are designating a total of 4,629
ac (1,873 ha) of critical habitat for the streaked horned lark
rangewide.
The streaked horned lark has been documented nesting on all of the
subunits within the last few years, and all subunits are therefore
considered occupied at the time of listing. All of the subunits
currently have one or more of the physical or biological features
essential to the conservation of the streaked horned lark, and which
may require special management considerations or protection.
The critical habitat areas described below constitute our best
assessment of areas that meet the definition of critical habitat for
the streaked horned lark. The approximate area and landownership of
each critical habitat unit and associated subunit is shown in Table 2.
[[Page 61528]]
Table 2--Critical Habitat Units for Streaked Horned Lark. Note: Area Sizes May Not Sum Due to Rounding. Area Estimates Reflect All Land Within Critical
Habitat Unit Boundaries
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 3: Washington Coast and Columbia River Islands Federal State Private Tribal Other* Currently
-------------------------------------------------------------------------------------------------------------------------------------------- occupied
------------
Subunit name Ac (Ha) Ac (Ha) Ac (Ha) Ac (Ha) Ac (Ha) Y/N
--------------------------------------------------------------------------------------------------------------------------------------------------------
3-A............................ Damon Point................... 0 456 (185) 24 (10) 0 0 Y
3-B............................ Midway Beach.................. 0 611 (247) 0 0 0 Y
3-C............................ Shoalwater Spit............... 0 377 (152) 102 (41) 0 0 Y
3-D............................ Leadbetter Point.............. 564 (228) 101 (41) 0 0 0 Y
3-E............................ Rice Island................... 0 224 (91) 0 0 0 Y
3-F............................ Miller Sands.................. 0 123 (50) 0 0 0 Y
3-G............................ Pillar Rock/Jim Crow.......... 0 44 (18) 0 0 0 Y
3-H............................ Welch Island.................. 0 43 (18) 0 0 0 Y
3-I............................ Tenasillahe Island............ 0 23 (9) 0 0 0 Y
3-J............................ Whites/Brown.................. 0 98 (39) 0 0 0 Y
3-K............................ Wallace Island................ 0 13 (5) 0 0 0 Y
3-L............................ Crims Island.................. 0 60 (24) 0 0 0 Y
3-M............................ Sandy Island.................. 0 37 (15) 0 0 0 Y
----------------------------------------------------------------------------------------
Unit 3 Totals................. 564 (228) 2,209 (894) 126 (51) 0 0 ...........
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 4: Willamette Valley:
--------------------------------
4-A............................ Baskett Slough NWR............ 1,006 (407) 0 0 0 0 Y
4-B............................ Ankeny NWR.................... 264 (107) 0 0 0 0 Y
4-C............................ William L Finley NWR.......... 459 (186) 0 0 0 0 Y
----------------------------------------------------------------------------------------
Unit 4 Totals................. 1,729 (700) 0 0 0 0 Y
Grand Total--all Units........ 2,293 (928) 2,209 (894) 126 (51) 0 0 ...........
----------------------------------------------------------------------------------------
GRAND TOTAL OF ALL UNITS, ALL .............. .............. 4,629 (1,873) ........... ........... ...........
OWNERSHIP.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Other = Ports, local municipalities, and nonprofit conservation organizations.
Unit 3: Washington Coast and Columbia River--Streaked Horned Lark
On the Washington coastal sites, the streaked horned lark occurs on
sandy beaches and breeds in the sparsely vegetated, low dune habitats
of the upper beach. We are designating four subunits (Subunits 3-A, 3-
B, 3-C, and 3-D) and a total of 2,235 ac (904 ha) as critical habitat
on the Washington coast. The coastal sites are owned and managed by
Federal, State, and private entities. The physical or biological
features essential to the conservation of the streaked horned lark may
require special management considerations or protection to reduce human
disturbance during the nesting season, and the continued encroachment
of invasive, nonnative plants requires special management to restore or
retain the open habitat preferred by the streaked horned lark. Subunits
3-A, 3-B, 3-C, and 3-D overlap areas that are designated as critical
habitat for the western snowy plover. The snowy plover nesting areas
are posted and monitored during the spring and summer to keep
recreational beach users away from the nesting areas; these management
actions also benefit the streaked horned lark.
In the lower Columbia River, we are designating nine island
subunits (Subunits 3-E through 3-M) for a total of 665 ac (269 ha). The
island subunits are owned by the States of Oregon and Washington. On
the Columbia River island sites, only a small portion of each island is
designated as critical habitat for the streaked horned lark; most of
the areas mapped are used by the Corps for dredge material deposition
in its channel maintenance program. Within any deposition site, only a
portion is likely to be used by the streaked horned lark in any year,
as the area of habitat shifts within the deposition site over time as
new materials are deposited and as older deposition sites become too
heavily vegetated for use by streaked horned larks. All of the island
subunits are small, but are adjacent to open water, which provides the
open landscape context needed by streaked horned larks.
The main threats to the essential features in the critical habitat
subunits designated on the Columbia River islands are invasive
vegetation and direct impacts associated with deposition of dredge
material onto streaked horned lark nests during the nesting season. In
all subunits, the physical or biological features essential to the
conservation of each subspecies may require special management
considerations or protection to manage, protect, and maintain the PCEs
supported by the subunits. For those threats that are common to all
subunits, special management considerations or protections may be
required to address direct or indirect habitat loss due to the location
and timing of dredge material placement to areas that have become
unsuitable for streaked horned lark nesting and wintering habitat.
Subunit 3-A: Damon Point--(Grays Harbor County, Washington). This
critical habitat subunit is about 481 ac (194 ha) in size; of this, 456
ac (185 ha) are owned by the State, and 24 ac (10 ha) are under private
ownership. It extends from the Ocean Shores wastewater treatment plant
on the western edge through the Oyhut wildlife management unit and
Damon Point spit (also called Protection Island). The vast majority of
this area (~95 percent) is managed by the State of Washington (WDFW,
WDNR, and Washington State Parks). This subunit is currently occupied
and provides the physical or biological features essential to the
conservation of the subspecies. The site has both the open landscape
context and sparse, low-growing vegetation that make up the physical or
biological features essential to the conservation of the subspecies.
Streaked horned larks currently nest and winter on Damon Point and have
also been documented nesting along the beach just west of the treatment
plant. The physical or
[[Page 61529]]
biological features essential to the conservation of the streaked
horned lark may require special management considerations or protection
to reduce human disturbance during the nesting season and encroachment
by invasive, nonnative plants that render the habitat too dense for use
by streaked horned larks.
Subunit 3-B: Midway Beach--(Pacific County, Washington). This
subunit is about 611 ac (247 ha) in size. The northern edge of the
subunit starts at Grayland Beach State Park and extends south to the
Warrenton Cannery road. The landward extent is defined by the
vegetation and ownership line in the mid-dune area. This site is owned
by the State of Washington (Washington State Parks and Recreation
Department). This subunit is currently occupied and provides the
physical or biological features essential to the conservation of the
subspecies. Both open landscape context and the sparse, low-growing
vegetation that make up the physical or biological features essential
to the conservation of the subspecies are present at the site, and
Midway Beach is used by streaked horned larks for both nesting and
wintering. The physical or biological features essential to the
conservation of the streaked horned lark may require special management
considerations or protection to reduce human disturbance during the
nesting season and encroachment by invasive, nonnative plants that
render the habitat too dense for use by streaked horned larks.
Subunit 3-C: Shoalwater/Graveyard Spit--(Pacific County,
Washington). This subunit is about 479 ac (194 ha); of this, 377 ac
(152 ha) are owned by the State, and 102 ac (41 ha) are under private
ownership. The central portion of the subunit (182 ac; 74 ha) is within
the Shoalwater Bay Indian Reservation and has been excluded under
section 4(b)(2) (see Exclusions), dividing the subunit into northwest
and southeast sections. Streaked horned larks have been documented off
and on at this site during the breeding season since 2000. Although the
site has been unoccupied for the past couple of years, singing male
streaked horned larks were documented at this site during surveys in
June 2012; therefore, we consider this site to be currently occupied.
As with the other areas along the Washington coast, streaked horned
larks use this site for both nesting and wintering. The subunit is a
dynamic area and has a constantly changing sand spit that supports the
essential features for nesting and wintering habitat. The physical or
biological features essential to the conservation of the streaked
horned lark may require special management considerations or protection
to reduce human disturbance during the nesting season and encroachment
by invasive, nonnative plants that render the habitat too dense for use
by streaked horned larks.
Subunit 3-D: Leadbetter Point--(Pacific County, Washington). This
subunit contains about 665 ac (269 ha) at the northern tip of the Long
Beach Peninsula. This subunit is on the Willapa National Wildlife
Refuge and the Seashore Conservation Area (managed by Washington
State). This site is occupied and provides the physical or biological
features essential to the conservation of the subspecies. Most of the
streaked horned larks at this site nest within the habitat restoration
area and in ponded swales landward of the restoration area that go dry
in the summer (Ritchie 2012, pers. comm.). The site has the open
landscape context and sparse, low-growing vegetation that make up the
physical or biological features essential to the conservation of the
subspecies. The Willapa National Wildlife Refuge completed its
comprehensive conservation plan in August 2011, and manages habitat at
the tip of Leadbetter Spit for the western snowy plover, streaked
horned lark, and other native coastal species. These management
activities are compatible with streaked horned lark conservation. As
with the other coastal sites, Leadbetter is used by streaked horned
larks year-round. The physical or biological features essential to the
conservation of the streaked horned lark may require special management
considerations or protection to maintain the early seral vegetation
required by the subspecies and to minimize nest destruction and
disturbance during the breeding season.
Subunit 3-E: Rice Island--(Clatsop County, Oregon, and Wahkiakum
County, Washington). This subunit is about 224 ac (91 ha) in size. The
island is located at river mile (RM) 21, approximately 7 mi (11 km)
upstream of the Astoria-Megler Bridge near the mouth of the Columbia
River. Although the island is within the planning boundary of the Julia
Butler Hansen National Wildlife Refuge, Rice Island is owned by the
Oregon Department of State Lands. A very small portion of the subunit
is in Wahkiakum County and on Washington State lands. The Corps uses
this site for dredge material disposal as part of its maintenance of
the Columbia River shipping channel. This subunit is occupied and
provides the features essential to the conservation of the subspecies.
Streaked horned larks currently nest and winter on Rice Island. The
physical or biological features essential to the conservation of the
streaked horned lark may require special management considerations or
protection to maintain the early seral vegetation required by the
subspecies and to minimize nest destruction and disturbance during the
breeding season.
Subunit 3-F: Miller Sands Spit--(Clatsop County, Oregon). Miller
Sands Spit is across the shipping channel from Rice Island at RM 24.
The subunit is a sand spit 2 mi (1.2 km) long and about 123 ac (50 ha)
in size on the northern shore of the island. The subunit is currently
occupied and provides the physical or biological features essential to
the conservation of the subspecies for nesting and wintering habitat.
The island is owned by the Oregon Department of State Lands, but is
also within the planning unit boundary for the Julia Butler Hansen
National Wildlife Refuge. The Corps uses this site for dredge material
disposal as part of its maintenance of the Columbia River shipping
channel. The physical or biological features essential to the
conservation of the streaked horned lark may require special management
considerations or protection to maintain the early seral vegetation
required by the subspecies and to minimize nest destruction and
disturbance during the breeding season.
Subunit 3-G: Pillar Rock/Jim Crow Sands--(Clatsop County, Oregon).
This island is located at about RM 27 on the Columbia River. The
subunit is about 44 ac (18 ha) in size. Pillar Rock is currently
occupied and provides the physical or biological features essential to
the conservation of the subspecies. Streaked horned larks nest and
winter at the site. The island is owned by the Oregon Department of
State Lands and is within the planning unit boundary for the Julia
Butler Hansen National Wildlife Refuge. The Corps uses this site for
dredge material disposal as part of its maintenance of the Columbia
River shipping channel. The physical or biological features essential
to the conservation of the streaked horned lark may require special
management considerations or protection to maintain the early seral
vegetation required by the subspecies and to minimize nest destruction
and disturbance during the breeding season.
Subunit 3-H: Welch Island--(Clatsop County, Oregon). This island is
at RM 34 and is owned by the Oregon Department of State Lands. The
critical habitat subunit is about 43 ac (18 ha) on the northeastern
shore of the island. This site is currently occupied and provides the
physical or biological features essential to the conservation of
[[Page 61530]]
the subspecies. The Corps uses this site for dredge material disposal
as part of its maintenance of the Columbia River shipping channel. The
physical or biological features essential to the conservation of the
streaked horned lark may require special management considerations or
protection to maintain the early seral vegetation required by the
subspecies and to minimize nest destruction and disturbance during the
breeding season.
Subunit 3-I: Tenasillahe Island--(Columbia County, Oregon). This
island is at RM 38; the subunit is on a small unnamed spit at the
southern tip of Tenasillahee Island. The subunit is about 23 ac (9 ha)
in size. This site is currently occupied and provides the physical or
biological features essential to the conservation of the subspecies.
The site is owned by the Oregon Department of State Lands. The Corps
uses this site for dredge material disposal as part of its maintenance
of the Columbia River shipping channel. The physical or biological
features essential to the conservation of the streaked horned lark may
require special management considerations or protection to maintain the
early seral vegetation required by the subspecies and to minimize nest
destruction and disturbance during the breeding season.
Subunit 3-J: Whites/Brown Island--(Wahkiakum County, Washington).
Whites/Brown Island is connected to the southern end of Puget Island at
RM 46 and is owned by WDFW. The subunit is a small spit at the southern
end of Whites/Brown Island and is about 98 ac (39 ha) in size. The site
is used by the Corps for dredge material disposal as part of its
maintenance of the Columbia River shipping channel. This site is
currently occupied and provides the physical or biological features
essential to the conservation of the subspecies. Whites/Brown Island
supports one of the largest populations of streaked horned larks in the
lower Columbia River islands. The physical or biological features
essential to the conservation of the streaked horned lark may require
special management considerations or protection to maintain the early
seral vegetation required by the subspecies and to minimize nest
destruction and disturbance during the breeding season.
Subunit 3-K: Wallace Island--(Columbia County, Oregon). Wallace
Island is located across the channel from Whites/Brown Island at RM 47.
Streaked horned larks were detected at the site in 2012, which is about
13 ac (5 ha) in size; therefore we consider the subunit presently
occupied. The area is owned by the Oregon Department of State Lands.
This site is not a dredge material disposal site. This subunit
currently contains the physical or biological features essential to the
conservation of the species, but may require special management to
maintain the low vegetative structure required by streaked horned
larks.
Subunit 3-L: Crims Island--(Columbia County, Oregon). This island
is located upstream of Wallace Island at RM 57. The subunit is about 60
ac (24 ha) in size. The subunit is currently occupied and provides the
physical or biological features essential to the conservation of the
subspecies. The area is owned by the Oregon Department of State Lands,
but is also within the planning unit boundary for the Julia Butler
Hansen National Wildlife Refuge. Crims Island is an approved Corps
dredge material disposal site. The physical or biological features
essential to the conservation of the streaked horned lark may require
special management considerations or protection to maintain the early
seral vegetation required by the subspecies and to minimize nest
destruction and disturbance during the breeding season.
Subunit 3-M: Sandy Island--(Columbia County, Oregon). This island,
at RM 76, is the island farthest upstream that is known to be used by
streaked horned lark for nesting. The subunit is about 37 ac (15 ha) in
size on the southern end of Sandy Island and is owned by the Oregon
Department of State Lands. This subunit is currently occupied and
provides the physical or biological features essential to the
conservation of the subspecies. The Corps uses this site for dredge
material disposal as part of its maintenance of the Columbia River
shipping channel. The physical or biological features essential to the
conservation of the streaked horned lark may require special management
considerations or protection to maintain the early seral vegetation
required by the subspecies and to minimize nest destruction and
disturbance during the breeding season.
Unit 4: Willamette Valley--Streaked Horned Lark
Unit 4 (Willamette Valley) includes critical habitat subunits for
both the Taylor's checkerspot butterfly and streaked horned lark, all
in the State of Oregon. We are designating three subunits for the
streaked horned lark in the Willamette Valley, all on the Willamette
Valley National Wildlife Refuge Complex. The total acreage is 1,729 ac
(700 ha). All of the subunits are occupied at the time of listing and
contain the physical or biological features essential to the
conservation of the subspecies that may require special management
considerations or protection. These subunits are managed mainly to
provide forage for wintering dusky Canada geese, and this management is
compatible with maintaining the essential features for the streaked
horned lark. The refuge complex has incorporated management for
streaked horned lark into its recently completed comprehensive
conservation plan, and streaked horned lark habitat conservation is
being implemented in the refuge units.
Subunit 4-A: Baskett Slough National Wildlife Refuge--(Polk County,
Oregon). There are two parts to this critical habitat subunit, the area
of which totals 1,006 ac (407 ha). Subunit 4-A North is 181 ac (73 ha)
and is in the North Morgan Reservoir area of the refuge. Subunit 4-A
South is 825 ac (334 ha) and is the South Baskett Slough Agricultural
area of the refuge; State Route 22 forms the southeast boundary of the
south subunit. Both of the subunits are agricultural fields that are
heavily grazed by dusky Canada geese in the winter. This subunit is
currently occupied and contains the physical or biological features
essential to the conservation of the subspecies. Baskett Slough
National Wildlife Refuge has large areas of agricultural lands and
restored native prairies, which provide the landscape context and
vegetation structure required by streaked horned larks. The refuge
manages primarily for wintering dusky Canada geese, which also provides
suitable management for streaked horned larks. This subunit is
consistently used by streaked horned larks in the breeding season. The
physical or biological features essential to the conservation of the
streaked horned lark may require special management considerations or
protection to maintain the early seral vegetation required by the
subspecies and to minimize nest destruction and disturbance during the
breeding season.
Subunit 4-B: Ankeny National Wildlife Refuge--(Marion County,
Oregon). This site is in the middle of the Ankeny Refuge, in the Field
6 Complex; the northeast boundary of the subunit is formed by the
Sydney Ditch. The critical habitat subunit is 264 ac (107 ha). The site
is composed of agricultural fields that are heavily grazed by dusky
Canada geese in the winter. The subunit is currently occupied and has
consistent use by streaked horned larks in the breeding season. This
subunit contains all of the physical or biological features essential
to the conservation of the subspecies. Ankeny National Wildlife Refuge
has both agricultural lands and restored native prairies, which provide
the landscape context and vegetation
[[Page 61531]]
structure required by streaked horned larks. The refuge manages
primarily for wintering dusky Canada geese, which also provides
suitable management for streaked horned larks. The physical or
biological features essential to the conservation of the streaked
horned lark may require special management considerations or protection
to maintain the early seral vegetation required by the subspecies and
to minimize nest destruction and disturbance during the breeding
season.
Subunit 4-C: William L. Finley National Wildlife Refuge--(Benton
County, Oregon). This critical habitat subunit is on Fields 11 and 12
in the South Finley Agricultural Lands area of the refuge; Bruce Road
bisects the subunit, and McFarland Road forms the southern boundary of
the site. The subunit is 459 ac (186 ha) in size. This subunit is
currently occupied and contains the physical or biological features
essential to the conservation of the subspecies. The site is composed
of agricultural fields that are heavily grazed by dusky Canada geese in
the winter, and it has consistent use by streaked horned larks in the
breeding season; streaked horned larks also winter at the refuge.
Finley National Wildlife Refuge has large areas of agricultural lands
and restored native prairies, which provide the landscape context and
vegetation structure required by streaked horned larks. The refuge
manages primarily for wintering dusky Canada geese, which also provides
suitable management for streaked horned larks. The physical or
biological features essential to the conservation of the streaked
horned lark may require special management considerations or protection
to maintain the early seral vegetation required by the subspecies and
to minimize nest destruction and disturbance during the breeding
season.
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.
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 the Taylor's checkerspot
butterfly or the streaked horned lark. 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
[[Page 61532]]
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 Taylor's checkerspot butterfly or streaked horned
lark. These activities include, but are not limited to:
(1) Actions that restore, alter, or degrade habitat features
through development, agricultural activities, burning, mowing,
herbicide use or other means in suitable habitat for the Taylor's
checkerspot butterfly or the streaked horned lark.
(2) Actions that would alter the physical or biological features of
critical habitat including modification of the composition and
structure of vegetation in suitable habitat for the Taylor's
checkerspot butterfly or the streaked horned lark. Such activities
could include, but are not limited to, construction, grading or other
development, mowing, conversion of habitat, or use of herbicides to
remove vegetation (recreational use, off-road vehicles on Federal,
State, private, or Tribal lands). These activities may affect the
physical or biological features of critical habitat for the Taylor's
checkerspot butterfly and streaked horned lark, by removing sources of
food, shelter, nesting or oviposition sites, or otherwise impacting
habitat essential for completion of life history.
(3) Actions that would reduce the open landscape context required
by the streaked horned lark, such as construction of buildings or
planting tall trees adjacent to a suitable site.
(4) Deposition of dredge materials on occupied streaked horned lark
habitats during the breeding season.
(5) Installation of shoreline stabilization structures or
modification of beaches and open shorelines where occupied by the
streaked horned lark or where critical habitat occurs for the streaked
horned lark.
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 geographical 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.''
We consult with the military on the development and implementation
of INRMPs for installations with listed species. We analyzed INRMPs
developed by military installations located within the range of the
critical habitat designation for the Taylor's checkerspot butterfly and
streaked horned lark to determine if they meet the criteria for
exemption from critical habitat under section 4(a)(3) of the Act. The
following areas are Department of Defense lands with completed,
Service-approved INRMPs within the critical habitat designation.
Approved INRMPs
U.S. Army Joint Base Lewis-McChord--JBLM, formerly known as Fort
Lewis, is an 86,500-ac (35,000-ha) U.S. Army military reservation in
western Washington, south of Tacoma and east of the Puget Sound. JBLM
contains some of the largest remaining intact prairies in the south
Puget Sound basin, with approximately 20,352 ac (8,236 ha) of prairies,
one of the rarest ecosystems in the United States, which also supports
both the Taylor's checkerspot butterfly and streaked horned lark. Since
2003, JBLM has managed the prairies located on the base according to
their Prairie Management Plan, which was collaboratively prepared by
Robert Altman of the American Bird Conservancy (ABC), the Environmental
and Natural Resources Division of JBLM's Wildlife Branch, and The
Nature Conservancy (TNC) of Washington. The prairies found on JBLM are
currently managed by JBLM's Fish and Wildlife Program and the primary
mission for the JBLM prairies is to provide an open environment for
military training. JBLM has a history of applying an ecosystem
management strategy to their prairies to provide for multiple
conservation goals, which have included promoting native biological
diversity, maintaining and restoring unique plant communities, and
providing habitat for several rare prairie species. There are 2,324 ac
(941 ha) of lands within the boundary of JBLM that were identified in
the proposed critical habitat designation for the Taylor's checkerspot
butterfly; these lands included all of subunits 1-A, 1-B, 1-C, and 1-E
in the proposed rule (77 FR 61937; October 11, 2012). JBLM has the
largest naturally occurring population of the Taylor's checkerspot
butterfly anywhere in its range. This significant Federal landholding
provides the largest contiguous block of prairie in Washington as well.
JBLM has an INRMP in place that was approved in 2006, which JBLM is
in the process of updating. In 2012, JBLM amended their existing INRMP
with specific regard to the Taylor's checkerspot butterfly by
completing an ESMP that includes guidelines for protecting,
maintaining, and enhancing habitat essential to support the Taylor's
checkerspot butterfly on JBLM. The Service has found, in writing, that
the ESMP under the JBLM INRMP provides a conservation benefit to the
Taylor's checkerspot butterfly.
JBLM's ESMPs identify management objectives for the conservation of
Taylor's checkerspot butterfly and streaked horned lark. For the
Taylor's checkerspot butterfly, the ESMP specifically includes nine
proposed ``priority habitat'' focus areas on JBLM for management of the
Taylor's checkerspot butterfly and its associated habitat. The
management objective is to improve the populations of Taylor's
checkerspot butterflies both on and off JBLM. JBLM's Fish and Wildlife
Program proposes several management objectives to attain this goal: (1)
They will coordinate with the Service and WDFW on increasing the number
of populations and expand their distribution on and off the base; (2)
the JBLM Fish and Wildlife Program will
[[Page 61533]]
monitor occupied Taylor's checkerspot butterfly populations to detect
habitat degradation, weather, and climate factors that influence
populations dynamics; and (3) they will evaluate the efficacy of their
ESMP, and adapt their management if required. JBLM has also committed
to restore and sustain priority habitat areas through a number of
management efforts. This will be accomplished by controlling invasive,
nonnative plant species and encroaching conifers, and as land is
cleared they will replant with the larval host and adult nectar plants
for Taylor's checkerspot butterfly. Restoration actions to enhance and
maintain suitable habitat conditions includes ecological prescribed
burning, mowing, application of herbicides where needed, girdling of
encroaching conifers, manual removal, and biological control using
integrated pest management. Another objective is to purchase lands off
JBLM for the express purpose of managing the locations for Taylor's
checkerspot butterfly habitat and translocation. To date, over 4,000 ac
(1,620 ha) have been acquired using Area Compatible Use Buffer (ACUB)
program funding.
There are 2,813 ac (1,138 ha) of lands within the boundary of JBLM
that were identified in the proposed critical habitat designation for
the streaked horned lark; these lands included all of subunits 1-B, 1-
C, 1-D, and 1-E in the proposed rule (77 FR 61937; October 11, 2012).
The ESMP for the streaked horned lark identifies management objectives
that are applied in specific locations on JBLM where this subspecies
nests, including McChord Airfield, Gray Army Airfield, 13th Division
Prairie (Training Area 14), and the eastern portion of the 91st
Division Prairie. The management objectives that are applied for the
protection of streaked horned larks include: (1) Scheduled mowing
regimes to minimize impacts to streaked horned lark at the military
airfields during the nesting season. The mowing restrictions are done
in coordination with the FAA to meet airport safety requirements for
vegetation management; (2) limiting off-road vehicle use in areas where
streaked horned larks are nesting; (3) annual surveys for streaked
horned larks in coordination with the CNLM and the WDFW at all of the
known occupied sites. Protection buffers will be applied around the
nesting areas at 13th Division Prairie and all training activities will
be seasonally restricted in these areas; and (4) evaluating the
efficacy of their ESMP, and adapt their management if required. As
described above, JBLM maintains and restores the prairie areas on base,
including areas used by the streaked horned lark. The Service has
found, in writing, that the ESMP under the JBLM INRMP provides a
conservation benefit to the streaked horned lark.
Based on the above considerations, and in accordance with section
4(a)(3)(B)(i) of the Act, we have determined that the identified
Department of Defense lands are subject to the JBLM INRMP and that
conservation efforts identified in the ESMPs under the INRMP will
provide a conservation benefit to the Taylor's checkerspot butterfly
and streaked horned lark. Therefore, lands within this installation are
exempt from critical habitat designation under section 4(a)(3) of the
Act. We are not including approximately 2,324 ac (941 ha) of habitat
for the Taylor's checkerspot butterfly and 2,813 ac (1,138 ha) for the
streaked horned lark in this final critical habitat designation because
of this exemption. The lands exempted under section 4(a)(3) are
identified in Tables 3 and 4.
Table 3--Areas Exempted From the Designation of Critical Habitat for the Taylor's Checkerspot Butterfly Under
Section 4(a)(3) of the Act by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
Areas meeting the
definition of critical Areas exempted in acres
Unit Specific area habitat in acres (hectares)
(hectares)
----------------------------------------------------------------------------------------------------------------
1.................................... TA7S................... 78 (32) 78 (32)
1.................................... 91st Division Prairie.. 1,377 (557) 1,377 (557)
1.................................... 13th Division Prairie.. 647 (262) 647 (262)
1.................................... Tenalquot Prairie...... 222 (90) 222 (90)
-------------------------------------------------
Total............................ ....................... 2,324 (941) 2,324 (941)
----------------------------------------------------------------------------------------------------------------
Table 4--Areas Exempted From the Designation of Critical Habitat for the Streaked Horned Lark Under Section
4(a)(3) of the Act by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
Areas meeting the
definition of critical Areas exempted in acres
Unit Specific area habitat in acres (hectares)
(hectares)
----------------------------------------------------------------------------------------------------------------
1.................................... McChord Airforce Base.. 759 (307) 759 (307)
1.................................... Gray Army Airfield..... 347 (140) 347 (140)
1.................................... 91st Division Prairie.. 888 (359) 888 (359)
1.................................... 13th Division Prairie.. 819 (331) 819 (331)
-------------------------------------------------
Total............................ ....................... 2,813 (1,138) 2,813 (1,138)
----------------------------------------------------------------------------------------------------------------
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 s/he determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless s/he 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
[[Page 61534]]
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 the Taylor's checkerspot butterfly and streaked
horned lark, the benefits of critical habitat include public awareness
of the presence of Taylor's checkerspot butterflies and streaked horned
larks and the importance of habitat protection, and, in cases where a
Federal nexus exists, increased habitat protection for these species
due to the protection from adverse modification or destruction of
critical habitat.
When we evaluate the existence of a conservation or management 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 and information in our
files, we evaluated whether certain lands in the proposed critical
habitat were appropriate for exclusion from this final designation
pursuant to section 4(b)(2) of the Act. We considered the areas
discussed below for exclusion under section 4(b)(2) of the Act, and
present our detailed analysis below. For those areas in which the
Secretary has exercised her discretion to exclude, we conclude that:
(1) Their value for conservation will be preserved in the near
future by existing protective actions; or
(2) The benefits of excluding the particular area outweigh the
benefits of their inclusion, based on the ``other relevant factor''
provisions of section 4(b)(2) of the Act.
Taylor's Checkerspot Butterfly
Table 5 shows the areas we are excluding from critical habitat for
the Taylor's checkerspot butterfly.
Table 5--Areas Excluded From the Designation of Critical Habitat for the Taylor's Checkerspot Butterfly Under
Section 4(b)(2) of the Act by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
Areas meeting the
definition of critical Areas excluded in
Unit Specific area habitat in acres acres (hectares)
(hectares)
----------------------------------------------------------------------------------------------------------------
1.................................... Rocky Prairie NAP...... 38 (16) 38 (16)
1.................................... Mima Mounds NAP........ 406 (164) 406 (164)
1.................................... Scatter Creek.......... 731 (296) 731 (296)
1.................................... Rock Prairie........... 621 (251) 378 (153)
1.................................... Bald Hill.............. 422 (171) 247 (100)
1.................................... West Rocky Prairie..... 134 (54) 134 (54)
2.................................... Elwha.................. 235 (95) 143 (58)
4.................................... Fort Hoskins........... 6 (3) 6 (3)
4.................................... Beazell Memorial Forest 61 (25) 61 (25)
4.................................... Fitton Green--Cardwell 59 (24) 40 (16)
Hill.
-------------------------------------------------
Total............................ ....................... 2,713 (1,098) 2,184 (885)
----------------------------------------------------------------------------------------------------------------
Streaked Horned Lark
Table 6 shows the areas we are excluding from critical habitat for
the streaked horned lark.
[[Page 61535]]
Table 6--Areas Excluded From the Designation of Critical Habitat for the Streaked Horned Lark Under Section
4(b)(2) of the Act by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
Areas meeting the
definition of critical Areas excluded in
Unit Specific area habitat in acres acres (hectares)
(hectares)
----------------------------------------------------------------------------------------------------------------
1.................................... Sanderson Field........ 376 (152) 376 (152)
1.................................... Olympia Airport........ 575 (233) 575 (233)
3.................................... Shoalwater Spit........ 661 (267) 182 (74)
3.................................... Portland International 431 (174) 431 (174)
Airport.
4.................................... McMinnville Municipal 600 (243) 600 (243)
Airport.
4.................................... Salem Municipal Airport 534 (216) 534 (216)
4.................................... Corvallis Municipal 1,103 (446) 1,103 (446)
Airport.
4.................................... Eugene Airport......... 313 (126) 313 (126)
-------------------------------------------------
Total............................ ....................... 4,593 (1,857) 4,114 (1,664)
----------------------------------------------------------------------------------------------------------------
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 order to
consider economic impacts, we prepared an economic analysis of the
proposed critical habitat designation and related factors (April 3,
2013; 78 FR 20074). This economic analysis addressed a total of six
prairie taxa proposed for listing under the Act. In addition to the
Taylor's checkerspot butterfly and streaked horned lark, the economic
analysis included four subspecies of the Mazama pocket gopher (Thomomys
mazama ssp.). The Mazama pocket gophers are being addressed in separate
rulemakings.
The intent of the final economic analysis (FEA) (IEc 2013) is to
quantify the economic impacts of all potential conservation efforts for
the six prairie taxa, including the Taylor's checkerspot butterfly and
streaked horned lark; some of these costs will likely be incurred
regardless of whether we designate critical habitat (we consider such
costs to be ``baseline'' costs). The economic impact of the final
critical habitat designation is analyzed by comparing scenarios both
``with critical habitat'' and ``without critical habitat.'' The
``without critical habitat'' scenario represents the baseline for the
analysis, considering protections already in place for the species
(e.g., under the Federal listing and other Federal, State, and local
regulations). The baseline, therefore, represents the costs incurred
regardless of whether critical habitat is designated. The ``with
critical habitat'' scenario describes the incremental impacts
associated specifically with the designation of critical habitat for
the species. The incremental conservation efforts and associated
impacts are those not expected to occur absent the designation of
critical habitat for the species. In other words, the incremental costs
are those attributable solely to the designation of critical habitat
above and beyond the baseline costs; these are the costs we consider in
the final designation of critical habitat.
The FEA also addresses how potential economic impacts are likely to
be distributed, including an assessment of any local or regional
impacts of habitat conservation and the potential effects of
conservation activities on government agencies, private businesses, and
individuals. The FEA measures lost economic efficiency associated with
residential and commercial development and public projects and
activities, such as economic impacts on water management and
transportation projects, Federal lands, small entities, and the energy
industry. Decision-makers can use this information to assess whether
the effects of the designation might unduly burden a particular group
or economic sector. The FEA considers those costs that may occur in the
20 years following the designation of critical habitat, which was
determined to be the appropriate period for analysis because limited
planning information was available for most activities to reasonably
forecast activity levels for projects beyond a 20-year timeframe. The
FEA quantifies the economic impacts of Taylor's checkerspot butterfly,
streaked horned lark, and Mazama pocket gopher conservation efforts
associated with the following categories of activity: military
activities; recreation and habitat management; airports and
agricultural activities; transportation; electricity distribution and
forestry activities; and dredging and other activities, including
private gravel mining operations and development.
As noted above, the FEA identifies and analyzes the potential
economic impacts associated with critical habitat designations proposed
for six prairie taxa: Taylor's checkerspot butterfly and streaked
horned lark, as well as four subspecies of Mazama pocket gopher (the
Roy Prairie, Olympia, Tenino, and Yelm pocket gophers). The Mazama
pocket gopher subspecies are addressed in separate rulemakings. All
estimates in the FEA are for all six taxa; therefore, estimates for
individual taxa are less than the totals estimated in the FEA and
summarized here.
The total present value impact anticipated to result from the
designation of all areas proposed as critical habitat for the Taylor's
checkerspot butterfly, streaked horned lark, and the four subspecies of
Mazama pocket gophers is $800,000 over the next 20 years, assuming a 7
percent discount rate, or $70,000 on an annualized basis. The greatest
incremental impacts of critical habitat apply to airports and
agricultural activities at $600,000 over the next 20 years, followed by
recreation and habitat management at $100,000, military activities at
$55,000, transportation at $34,000, and electricity distribution and
forestry activities at $9,300 (present values over 20 years assuming a
7 percent discount rate). For the most part, the incremental impacts of
the critical habitat designation are limited to the additional
administrative costs of consultations within occupied areas. In
addition, some incremental project modifications may occur on
unoccupied subunits for the Taylor's checkerspot butterfly on JBLM;
these costs are expected to be relatively small. Of the total costs,
the analysis estimates that approximately 51 percent will be incurred
by the Service, 31 percent by Federal action agencies, and 18 percent
by third parties. The impacts estimated in the FEA apply to the
proposed critical habitat in its entirety, and do not reflect final
exclusions or exemptions.
[[Page 61536]]
We have not excluded any areas from the final designation of
critical habitat based on economic impacts. A copy of the FEA with
supporting documents may be obtained by contacting the Service's
Washington Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT) or by downloading from http://www.regulations.gov at docket
number FWS-R1-ES-2013-0009.
Exclusions Based on National Security Impacts
In preparing this final rule, we have exempted from the designation
of critical habitat those DOD lands with completed INRMPS that have
been determined to provide a benefit to the Taylor's checkerspot
butterfly and streaked horned lark. We have subsequently determined
that the remaining lands within the designation of critical habitat for
the Taylor's checkerspot butterfly and streaked horned lark are not
owned or managed by the Department of Defense; therefore we anticipate
no impact on national security. Consequently, the Secretary is not
exercising her discretion to exclude any areas from this 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 species specific management
plans for the area that would benefit the Taylor's checkerspot
butterfly or streaked horned lark, 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 the same or better level of
protection from adverse modification or destruction than that provided
through a consultation under section 7 of the Act;
(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 find that the Rocky Prairie, Mima Mounds, and Bald Hill Natural
Area Preserves (NAPs), as well as WDNR-owned parcels on Dan Kelly Ridge
and in Eden Valley (all of which are covered under the WDNR State Trust
Lands HCP); the WDFW Scatter Creek Wildlife Area Management Plan (which
also covers the adjacent private land); the WDFW West Rocky Prairie
Wildlife Area Management Plan; the Merrill and Ring Voluntary Habitat
Conservation Plan; the NRCS Colvin Ranch Grassland Reserve Program
Management Plan; and the Benton County Prairie Species HCP, all fulfill
the above criteria. We are excluding these non-Federal lands covered by
these plans because the plans adequately provide for the long-term
conservation of the Taylor's checkerspot butterfly and the Secretary
has determined that the benefits of excluding such areas outweigh the
benefits of including them in critical habitat.
As a result of considering other relevant impacts, we have
additionally excluded non-Federal airports from final critical habitat
for the streaked horned lark, based upon the Secretary's determination
that the benefit of excluding such areas outweighs the benefit of
including them in critical habitat, as described below.
Washington Department of Natural Resources State Trust Lands HCP
The WDNR State Trust Lands HCP covers approximately 1.7 million
(730,000 ha) of State lands in Washington. The permit associated with
this HCP, issued January 30, 1997, was announced in the Federal
Register on April 5, 1996 (61 FR 15297), has a term of 70 to 100 years,
and covers activities primarily associated with commercial forest
management, but also includes limited nontimber activities such as some
recreational activities. The HCP covers all species, including the
Taylor's checkerspot butterfly and other listed and unlisted species.
We are excluding Washington State lands totaling approximately 823 ac
(334 ha) that are covered and managed by the WDNR under their State
Trust Lands HCP from Units 1 and 2 of this critical habitat designation
under section 4(b)(2) of the Act.
The HCP addresses multiple species through a combination of
strategies. The HCP includes a series of NAPs and Natural Resource
Conservation Areas (NRCAs), including Rocky Prairie NAP, Mima Mounds
NAP, and Bald Hill NAP. These preserves are managed consistent with the
Natural Areas Preserve Act, forever protecting the highest quality
examples of native ecosystems and rare plant and animal species, in
addition to other natural features of State, regional or national
significance. These preserves are used for education, scientific
research, and to maintain Washington's native biological diversity.
This network of preserves includes nearly 31,000 ac (12,550 ha)
throughout the State, which range in size from 8 ac (3.2 ha) to 3,500
ac (1,416 ha). Management plans are developed for each NAP, which guide
the actions necessary to protect each area's natural features,
including research, monitoring, restoration, and other active
management. In addition, there are approximately 132 ac (23 ha) in the
Elwha drainage at Dan Kelly Ridge and Eden Valley that are also owned
by WDNR and managed for Taylor's checkerspot butterfly under a separate
plan. WDNR actively manages these three NAPs and the two additional
sites (Dan Kelly and Eden Valley) to maintain high-quality prairie and
bald habitats. All of these locations contain many of the essential
physical or biological features to support the Taylor's checkerspot
butterfly. Although these sites are not currently occupied by the
Taylor's checkerspot butterfly, they have the potential to serve as the
site of future translocations to re-establish the subspecies.
The NAP properties at Rocky Prairie, Mima Mounds, and Bald Hill,
and the sites at Dan Kelly Ridge and Eden Valley (these last two are
managed under a single plan), each have species-specific management
plans that provide for the conservation of the Taylor's checkerspot
butterfly, and these sites have been managed for the conservation of
prairie species, including Taylor's checkerspot butterfly specifically.
This ongoing practice of habitat management and conservation has
fostered a diverse variety of larval and adult nectar resources for
Taylor's checkerspot butterfly that complement the wide range of
topographic variation within and between sites. The management planning
for each of these areas has established a decades-long track record of
activity focused on enhancing prairie composition and structure at each
location: Rocky Prairie NAP Management Plan (WDNR 1989b), Mima Mounds
NAP Management Plan (WDNR
[[Page 61537]]
1989a), Bald Hill NAP Management Plan (WDNR 1988), and WDNR Olympic
Taylor's Checkerspot Butterfly Management Plan (Horton, 2010). The
conservation measures applied at the three NAPs have more recently been
refocused through the development of site-specific restoration plans
for each location to benefit the Taylor's checkerspot butterfly and
other rare prairie butterflies. These restoration plans (Wilderman and
Davenport 2011a, 2011b, 2011c) provide for the needs of Taylor's
checkerspot butterfly by protecting and managing all the WDNR NAPs in
Thurston County, and implementing species-specific conservation
measures designed to avoid and minimize impacts to the Taylor's
checkerspot butterfly. The management guidelines were developed for
areas that are currently occupied as well as areas that have suitable
habitat but that are not known to be currently occupied by the Taylor's
checkerspot butterfly. Because of the high success rate of recent
Taylor's checkerspot butterfly translocations, the planning group that
oversees the schedule for translocation would give weighted
consideration to each of these high-quality prairie locations for
future introductions of the Taylor's checkerspot butterfly.
Although both Dan Kelly Ridge and Eden Valley lack established,
long-term, site-specific restoration plans, they are subject to an
adaptive management restoration strategy implemented by WDFW rare
species experts who are focused on the maintenance and expansion of
appropriate habitat at and around the occupied areas. These restoration
efforts at Dan Kelly Ridge and Eden Valley have been supported through
a number of funding streams, including monies from the Service and DOD.
Additionally, WDNR provides work crews to conduct tree and shrub
removal which reflects an ongoing and increasing investment on the part
of the land owner. Support provided in crew hours totaled $5,000 in
years past and has more than doubled that amount in 2013, indicating a
significant investment in and commitment to the ongoing stewardship of
these occupied properties.
Benefits of Inclusion--Rocky Prairie, Mima Mounds, and Bald Hill
Natural Area Preserves, and the Dan Kelly Ridge and Eden Valley sites
under the WDNR State Trust Lands HCP--The primary effect of designating
any particular area as critical habitat is the requirement for Federal
agencies to consult with us under section 7 of the Act to ensure
actions they carry out, authorize, or fund do not adversely modify
designated critical habitat. Absent critical habitat designation in
occupied areas, Federal agencies remain obligated under section 7 of
the Act to consult with us on actions that may affect a federally
listed species to ensure such actions do not jeopardize the species'
continued existence. All three of the NAPs are currently unoccupied by
the Taylor's checkerspot butterfly; therefore, a jeopardy analysis
would not be triggered by a Federal agency action for Rocky Prairie,
Mima Mounds, or Bald Hill NAPs. If the NAPs were designated as critical
habitat, such an action would trigger consultation solely under the
adverse modification standard of section 7. The WDNR-owned Dan Kelly
Ridge and Eden Valley sites are both occupied and have been undergoing
restoration through a federally-funded program (Wildlife and Sport Fish
Restoration Program), thus any proposed actions for habitat restoration
would trigger section 7 consultation for both the subspecies and the
designated critical habitat. The benefits of inclusion in critical
habitat at these sites would be minimized since they are occupied by
Taylor's checkerspot butterfly, as any potential consultation under
section 7 of the Act will evaluate the effects of the action on the
conservation or functionality of the habitat for the subspecies
regardless of whether critical habitat is designated for these lands.
The analytical requirements to support a jeopardy determination on
excluded land are similar, but not identical, to the requirements in an
analysis for an adverse modification determination on included land.
The additional benefit of consultation under the adverse modification
standard at these occupied sites would therefore be reduced.
The inclusion of these areas as critical habitat could therefore
provide some additional Federal regulatory benefits for the species
consistent with the conservation standard based on the Ninth Circuit
Court's decision in Gifford Pinchot Task Force v. United States Fish
and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004). As noted above, a
potential benefit of inclusion would be the requirement of a Federal
agency to ensure that their actions on these non-Federal lands would
not likely result in the destruction or adverse modification of
critical habitat. Any Federal nexus on these lands would likely result
from actions to restore or maintain favorable habitat conditions,
carried out under the HCP or granting of Federal funds for beneficial
management of prairie-associated species, such as Taylor's checkerspot
butterfly. The incremental benefit to the Taylor's checkerspot
butterfly from the small amount of resultant section 7 consultation
required by this habitat management funding is likely minimal,
especially considering that the action being consulted on is itself
intended to benefit prairie-associated species.
The Service has coordinated with WDNR on conservation actions to be
implemented for the Taylor's checkerspot butterfly at the three NAPs
located in Thurston County, Washington, as well as the two sites at Dan
Kelly Ridge and Eden Valley in Clallam County, Washington. An NAP is a
land designation used by the State of Washington to protect the best
examples of rare and vanishing flora, fauna, plant and animal
communities, geological, and natural historical value, consistent with
the Washington Natural Areas Preserves Act of 1972 (RCW 79.70). The two
other sites (Dan Kelly Ridge and Eden Valley) are managed separately
under their own plan, but are not designated as NAPs. Management of the
NAPs in Thurston County is guided in large part by the South Puget
Sound Prairie Landscape Working Group. The Service is a charter member
of this partnership group, which was established in 1994, to promote
and improve the management and planning of conservation actions on
south Puget Sound prairies and associated habitats. The Working Group
includes WDNR, JBLM, NRCS, WDFW, CNLM, the Washington Department of
Transportation (WSDOT), as well as other Federal, State, county, city,
nongovernmental, and private group entities, each with knowledge and
expertise in prairie ecosystem management. The Working Group
coordinates regularly, meeting twice-yearly to share information and
discuss priorities, and making significant improvements on the ground
in prairies and oak woodlands. At one of our south Puget Sound
locations, volunteers implement restoration and recovery actions for
prairie species every Tuesday throughout the year. This is a well-
established group that is expected to continue its coordination efforts
into the foreseeable future, regardless of the designation of critical
habitat. Management of the Dan Kelly Ridge and Eden Valley sites
receive oversight from the Taylor's Checkerspot Butterfly Working
Group, a multi-agency working group that has been in existence since
2004. Participants in the working group include JBLM, NRCS, USFS, WDNR,
WDFW, WSDOT, University of Washington researchers, CNLM, and other
Federal, State, county, city, nongovernmental, private entities and
[[Page 61538]]
individuals, each with knowledge and expertise on the Taylor's
checkerspot butterfly, its conservation, habitat, and restoration
needs. Designation of these areas as critical habitat would therefore
likely yield no additional benefit to the outputs of the working
groups, their members, or their ease of coordination. The active, long-
term restoration efforts already in place at these sites thus reduce
the potential benefit of critical habitat.
Another potential benefit of including lands in a critical habitat
designation is that it serves to educate landowners, State and local
governments, and the public regarding the potential conservation value
of an area. This helps focus and promote conservation efforts by
identifying areas of high conservation value for the Taylor's
checkerspot butterfly. The designation of critical habitat informs
State agencies and local governments about areas that could be
conserved under State laws or local ordinances. Any additional
information about the needs of the Taylor's checkerspot butterfly or
its habitat that reaches a wider audience can be of benefit to future
conservation efforts. During the spring of 2013 alone, the Service
hosted two prairie workshops, one public hearing, and two local
Thurston County events attended by nearly 1,000 people to publicize and
educate local community members of the subspecies' declining
distribution, and the threat to the native flora and fauna found on
western Washington prairies. An important conservation measure that is
gained through these outreach networks is the ability to educate the
public about the historical role and current importance of prairies to
our local community and economy. Included among the outreach measures
is the distribution of educational material, and encouraging landowners
to conduct prairie restoration activities on their properties. At least
two presentations resulting from research conducted at the Dan Kelly
Ridge and Eden Valley sites have been given and additional work for
these two sites is expected to be concluded in the near future that may
further elevate public awareness in Clallam County about the
conservation needs of the Taylor's checkerspot butterfly on the north
Olympic Peninsula. Additional events are expected to occur in the
future, and designation of the NAPs or the WDNR-owned Dan Kelly Ridge
and Eden Valley sites as critical habitat is not expected to increase
the number of such meetings or improve their outcomes; the additional
educational value of critical habitat is therefore minimized.
The incremental benefit of inclusion is reduced because of the
long-standing management planning and implementation efforts for each
site, as discussed above. In addition, the NAP restoration plans
provide greater protection to Taylor's checkerspot butterfly habitat
than would the designation of critical habitat, since the planning
effort is intended to actively improve the structure and composition of
the habitat (critical habitat does not carry any requirement for
habitat restoration or improvement). Although both Dan Kelly Ridge and
Eden Valley lack established, long-term, site-specific restoration
plans, they are subject to an adaptive management restoration strategy
implemented by WDFW rare species experts focused on the maintenance and
expansion of appropriate habitat at and around the occupied areas.
These restoration efforts at Dan Kelly Ridge and Eden Valley have been
supported through a number of funding streams, including monies from
the Service. Therefore, designation of critical habitat on these areas
would not provide any additional management focus that is not already
occurring at these locations under Washington State management
authority, through plans developed through our recovery program, or
through the DOD ACUB funding authority, which has provided funding
support for many of our local protected prairies, including the NAPs,
Dan Kelly Ridge, and Eden Valley sites.
Benefits of Exclusion--Rocky Prairie, Mima Mounds, Bald Hill
Natural Area Preserves, and the Dan Kelly Ridge and Eden Valley sites
under the WDNR State Trust Lands HCP--The benefits of excluding these
areas from critical habitat are relatively greater. A benefit of
excluding lands within this HCP from critical habitat designation is
that it would encourage the State and other parties to continue to work
toward Taylor's checkerspot butterfly conservation. Since issuance of
this HCP, a number of land transactions and land exchanges within the
HCP area have occurred. These transactions have included creation of
additional NRCAs and NAPs (land designations with high degree of
protection), and have also included large land exchanges and purchases
that have changed the footprint of the HCP. These land-based
adjustments have facilitated better management on many important
parcels and across larger landscapes than would otherwise have been
possible. If lands within HCP plan areas are designated as critical
habitat, it would likely have a negative effect on the willingness of
various groups and funding sources to accomplish these land-ownership
adjustments because of a reluctance to acquire lands designated as
critical habitat as well as a reduced willingness on the part of WDNR
to accommodate the Service's goals. This HCP is located in key
landscapes across the State, and the NAPs at Rocky Prairie, Mima
Mounds, and Bald Hill, as well as the two sites at Dan Kelly Ridge and
Eden Valley--which are covered by the HCP--contribute meaningfully to
the recovery of the Taylor's checkerspot butterfly.
If lands within the WDNR HCP plan area are designated as critical
habitat, it would also likely have a negative effect on our ability to
establish new partnerships to develop HCPs, particularly large,
regional HCPs that involve numerous participants or address landscape-
level conservation of species and habitats. This HCP has served as a
model for several completed and ongoing HCP efforts, including the
Washington State Forest Practices HCP. By excluding these lands, we
preserve our current private and local conservation partnerships and
encourage additional conservation actions in the future because other
parties see our exclusion as a sign that the Service will not impose
duplicative regulatory burdens on landowners who have developed an HCP.
HCPs typically provide for greater conservation benefits to a
covered species than section 7 consultations because HCPs ensure the
long-term protection and management of a covered species and its
habitat. In addition, funding for such management is ensured through
the Implementation Agreement. Such assurances are typically not
provided by section 7 consultations, which, in contrast to HCPs, often
do not commit the project proponent to long-term, special management
practices or protections. Thus, a section 7 consultation typically does
not afford the lands it covers similar extensive benefits as an HCP.
The development and implementation of HCPs provide other important
conservation benefits, including the development of biological
information to guide the conservation efforts and assist in species
conservation, and the creation of innovative solutions to conserve
species while meeting the needs of the applicant. In this case,
substantial information has been developed from the research,
monitoring, and surveys conducted by WDNR. Therefore, exclusion is a
benefit because it maintains and fosters the development of biological
information and innovative solutions.
[[Page 61539]]
Exclusion of these areas will additionally help us maintain an
important and successful partnership with other Washington State
conservation partners (via the South Puget Sound Prairie Landscape
Working Group and the Taylor's Checkerspot Butterfly Working Group) who
made a commitment more than a decade ago to include the Taylor's
checkerspot butterfly in their management and restoration plans, as
well as encouraging others to join in this and other conservation
partnerships.
Benefits of Exclusion Outweigh Benefits of Inclusion--Rocky
Prairie, Mima Mounds, Bald Hill Natural Area Preserves, and the Dan
Kelly Ridge and Eden Valley sites under the WDNR State Trust Lands
HCP--The Secretary has determined that the benefits of excluding the
WDNR-managed Rocky Prairie, Mima Mounds, and Bald Hill NAPs found in
Thurston County, and the Dan Kelly Ridge and Eden Valley sites in
Clallam County, from the designation of critical habitat for Taylor's
checkerspot butterfly outweigh the benefits of including these areas in
critical habitat. Any Federal nexus on these lands would likely result
from actions to restore or maintain favorable habitat conditions,
undertaken under the HCP or granting of Federal funds for beneficial
management of prairie-associated species, such as Taylor's checkerspot
butterfly. If one were to occur, it would most likely be with the
Service or DOD, and their actions will be geared toward the
conservation benefits of restoring and enhancing habitat specifically
for the Taylor's checkerspot butterfly, or other rare butterflies. This
type of management would benefit Taylor's checkerspot butterfly if
focused on the maintenance of open, short-statured vegetative
conditions that Taylor's checkerspot butterfly typically occupies. The
incremental benefit to the Taylor's checkerspot butterfly from the
small amount of resultant section 7 consultation required by this
habitat management funding is likely minimal, especially considering
that the action being consulted on is itself intended to benefit
prairie-associated species.
The South Puget Sound Prairie Landscape Working Group partnership,
which contributes to management planning on the NAPs, and the Taylor's
Checkerspot Butterfly Working Group, which provides guidance for the
sites at Dan Kelly Ridge and Eden Valley, would not be additionally
benefitted due to inclusion of these areas in critical habitat, as
these working groups are well-established, cohesive, and productive
groups that have yielded and will continue to yield positive
conservation outcomes for the Taylor's checkerspot butterfly on south
Puget Sound prairies and the north Olympic Peninsula, including these
sites, regardless of the designation of critical habitat. The
conservation strategies of each NAP restoration plan and the ongoing
adaptive habitat restoration strategies for are designed to protect and
enhance habitat for the Taylor's checkerspot butterfly. These
strategies include species-specific management actions to support
Taylor's checkerspot butterflies, avoidance and minimization measures,
and monitoring requirements to ensure proper implementation, which
further minimizes the benefits of including these areas in a
designation of critical habitat.
The WDNR State Trust Lands HCP provides for significant
conservation and management within geographical areas that contain the
physical or biological features essential to the conservation of
Taylor's checkerspot butterfly, and helps achieve recovery of this
subspecies through the conservation measures of the HCP. Exclusion of
these lands from critical habitat will help foster the partnership we
have developed with WDNR, through the development and continuing
implementation of the HCP and the area management plans. It will also
help us maintain and foster an important and successful partnership
with our Washington State conservation partners in the South Puget
Sound Prairie Landscape Working Group as well as with the species-
specific Taylor's Checkerspot Butterfly Working Group, which shares
significant overlap with the South Puget Sound Prairie Landscape
Working Group and, by doing so, bridges between ecosystem management
strategies and species-specific conservation actions. Both WDNR and the
working groups have encouraged others to join in conservation
partnerships as well, and exclusion of these lands will encourage the
future development of such beneficial conservation partnerships. For
these reasons, we have determined that the benefits of exclusion
outweigh the benefits of inclusion in this case.
Exclusion Will Not Result in the Extinction of the Species--Rocky
Prairie, Mima Mounds, Bald Hill Natural Area Preserves, and the Dan
Kelly Ridge and Eden Valley sites under the WDNR State Trust Lands
HCP--We have determined that exclusion of approximately 38 ac (16 ha)
for the Rocky Prairie NAP (Unit 1-Rocky Prairie), 406 ac (164 ha) for
the Mima Mounds NAP (Unit 1-Mima Mounds/Glacial Heritage), 247 ac (100
ha) for the Bald Hill NAP (Unit 1-Bald Hills), 109 ac (44 ha) for the
Dan Kelly Ridge site (Unit 2-Elwha), and 23 ac (9 ha) for the Eden
Valley site (Unit 2-Elwha), all of which are covered under the WDNR
State Trust Lands HCP, will not result in the extinction of Taylor's
checkerspot butterfly. Actions covered by the HCP will not result in
extinction of Taylor's checkerspot butterfly because: (1) the NAPs are
not currently occupied by the subspecies, and; (2) and the occupied
sites (Dan Kelly Ridge and Eden Valley) both have special dispensation
from site designation as a source of merchantable timber, which allows
for the removal of otherwise merchantable trees in favor of enhancing
Taylor's checkerspot butterfly habitat. In all of these areas the State
Trust Lands HCP provides for the future needs of the Taylor's
checkerspot butterfly by restoring, maintaining, and creating habitat
within these areas, and supporting management of Taylor's checkerspot
butterfly habitat and that of other rare species through HCP
compliance. Additionally, each of the areas operates under a specific
management plan to guide long-term site management, and more recently
developed restoration plans to direct the habitat enhancement
activities at each location. For these reasons, we find that exclusion
of these lands covered by the WNDR State Trust Lands HCP will not
result in extinction of the Taylor's checkerspot butterfly. Based on
the above discussion, the Secretary is exercising her discretion under
section 4(b)(2) of the Act to exclude from this final critical habitat
designation portions of the proposed critical habitat units or subunits
that are within the WDNR State Trust Lands HCP-covered lands as
identified above, totaling about 823 ac (334 ha).
Scatter Creek Wildlife Area and Adjacent Private Land, and the West
Rocky Prairie Wildlife Area
We are excluding 767 ac (310 ha) of Washington State lands
designated as Wildlife Areas, and 98 ac (40 ha) of private land
inholding from this critical habitat designation under section 4(b)(2)
of the Act. These Wildlife Areas are known as the Scatter Creek
Wildlife Area (633 ac (256 ha)) (Unit 1-Scatter Creek) and West Rocky
Prairie Wildlife Area (134 ac (54 ha)) (Unit 1-West Rocky Prairie),
both owned and managed by WDFW. The private inholding is associated
with the Scatter Creek Wildlife Area (Unit 1-Scatter Creek) and is
managed by WDFW identically to the Wildlife Area itself. Wildlife Areas
provide a variety of habitat for endangered and threatened species,
including the Taylor's
[[Page 61540]]
checkerspot butterfly, and are managed for that purpose, among others.
Each Wildlife Area operates under a Wildlife Area Management Plan
specific to the unique management needs of that area. Species-specific
management plans have been written for a subset of the Wildlife Areas,
including Scatter Creek and West Rocky Prairie. WDFW's land acquisition
strategy for Wildlife Areas requires their purchases provide the
highest benefit to fish, wildlife, and the public. In addition, WDFW is
currently developing an HCP for lands in Wildlife Areas with the help
of the Service, which will incorporate a landscape-level approach to
managing at-risk species, including Taylor's checkerspot butterfly.
WDFW developed a management plan for the Scatter Creek Wildlife
Area and adjacent private land in 2010 that specifically details the
habitat needs of Taylor's checkerspot butterfly and continues to refine
habitat conservation measures through collaboration with local
conservation partners from the Service, WDNR, the University of
Washington, and CNLM (Hays 2010). WDFW also has a draft management plan
to guide prairie management at the West Rocky Prairie Wildlife Area
(WDFW 2011), which will be this area's guiding document until
finalized. Prior to the management plan being developed, the site was
managed for an array of species and recreational activities, including
restoration actions designed to improve the prairie conditions for the
Taylor's checkerspot butterfly, mardon skipper butterfly (Polites
mardon), and Mazama pocket gopher. The Scatter Creek Wildlife Area and
adjacent private lands are currently occupied by the Taylor's
checkerspot butterfly; the West Rocky Prairie Wildlife Area is not
known to be occupied by the subspecies.
Benefits of Inclusion--Scatter Creek Wildlife Area and Adjacent
Private Land; West Rocky Prairie Wildlife Area--The primary effect of
designating any particular area as critical habitat is the requirement
for Federal agencies to consult with us under section 7 of the Act to
ensure actions they carry out, authorize, or fund do not adversely
modify designated critical habitat. Absent critical habitat designation
in occupied areas, Federal agencies remain obligated under section 7 of
the Act to consult with us on actions that may affect a federally
listed species to ensure such actions do not jeopardize the species'
continued existence.
The analysis of effects to critical habitat is a separate and
different analysis from that of the effects to the species. Therefore,
the difference in outcomes of these two analyses represents the
regulatory benefit of critical habitat. The regulatory standard is
different, as the jeopardy analysis investigates the action's impact on
the survival and recovery of the species, while the adverse
modification analysis focuses on the action's effects on the designated
habitat's contribution to conservation. This will, in many instances,
lead to different results and different regulatory requirements. Thus,
critical habitat designations have the potential to provide greater
benefit to the recovery of a species than would listing alone.
The inclusion of these covered lands as critical habitat could
provide some additional Federal regulatory benefits for the species
consistent with the conservation standard based on the Ninth Circuit
Court's decision in Gifford Pinchot Task Force v. United States Fish
and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004). As noted above, a
potential benefit of inclusion would be the requirement of a Federal
agency to ensure that their actions on these non-Federal lands would
not likely result in the destruction or adverse modification of
critical habitat. However, this additional analysis to determine
whether a Federal action is likely to result in destruction or adverse
modification of critical habitat is not likely to be significant
because these covered lands are not under Federal ownership, making the
application of section 7 less likely. As often as not, any actions
required to restore or maintain favorable habitat conditions are not
associated with a Federal action, and thus would not trigger any
protections afforded by the designation of critical habitat. The
granting of Federal funds for beneficial management of prairie-
associated species such as Taylor's checkerspot butterfly would provide
the only foreseeable Federal nexus for these non-Federal lands. WDFW
has received funding specifically to improve habitat features such as
vegetation composition, and structure to support rare and threatened
butterflies, including the Taylor's checkerspot butterfly, mardon
skipper butterfly, and valley silverspot butterfly (Speyeria zerene
bremnerii). This funding will support activities through 2017. Funding
is also provided to WDFW from the DOD ACUB program, which is a high
priority program for DOD. Leadership at DOD has confirmed that the
program will continue into the future (Jeff Foster, pers. comm. 2013).
The small amount of resultant section 7 consultation required by this
habitat management funding is not likely to provide much added benefit
to the species, as one of the primary threats to the Taylor's
checkerspot butterfly is the loss and degradation of its habitat,
therefore habitat considerations will already play into the jeopardy
determination for the subspecies in the currently occupied area at
Scatter Creek, and the additional consideration of adverse modification
of critical habitat is unlikely to result in a different outcome. In
addition, for both Scatter Creek and West Rocky Prairie, the action
most likely to be consulted on is itself intended to benefit prairie-
associated species, therefore the outcome of consultation is unlikely
to provide a significant additional benefit to the species as a result
of critical habitat designation.
The Service has coordinated with WDFW on conservation actions to be
implemented for the Taylor's checkerspot butterfly at the Scatter Creek
Wildlife Area and West Rocky Prairie Wildlife Area in south Thurston
County, Washington. As with the NAPs in Thurston County, management of
the prairie Wildlife Areas in Thurston County is guided in large part
by the South Puget Sound Prairie Landscape Working Group, which was
established in 1994, to promote and improve the management and planning
of conservation actions on south Puget Sound prairies and associated
habitats. This is a well-established group that is expected to continue
its coordination efforts into the foreseeable future. Designation of
these Wildlife Areas as critical habitat would yield no additional
benefit to the outputs of the Working Group, its members, or their ease
of coordination, as the active, long-term efforts of this group are
expected to continue regardless of the designation of critical habitat.
The incremental benefit from designating critical habitat for Taylor's
checkerspot butterfly in these areas is further minimized because of
the long-standing management planning efforts that have been
implemented and planned for the two Wildlife Areas and the associated
private land inholding, which is managed using the same management
methods as the Wildlife Areas. These properties have implemented
management for the conservation of prairie habitat and prairie
associated species. Each Wildlife Area focuses their management to
promote the production of larval host and adult nectar food resources
for the Taylor's checkerspot butterfly, and these areas contain several
of the essential physical or biological features to support the
subspecies. Management planning for each of the Wildlife Areas has
[[Page 61541]]
established a track record of activity focused on enhancing prairie
composition and structure. The conservation measures regularly
implemented at the Wildlife Areas have recently been refocused through
the development of site specific restoration plans for each location to
benefit the Taylor's checkerspot butterfly and other rare prairie
butterflies (Hays 2013). The restoration being implemented and the
guidance from the management plan provides greater protection to
Taylor's checkerspot butterfly habitat than the designation of critical
habitat, since the planning effort is intended to actively improve the
structure and composition of the habitat (the designation of critical
habitat does not require any active management). Therefore, the
existing management at this site will provide greater benefit than the
regulatory designation of critical habitat, which only requires the
avoidance of adverse modification and does not require the creation,
improvement, or restoration of habitat.
Another potential benefit of including Wildlife Area lands in a
critical habitat designation is that it serves to educate landowners,
State and local governments, and the public regarding the potential
conservation value of an area. This helps focus and promote
conservation efforts by other parties by identifying areas of high
conservation value for the Taylor's checkerspot butterfly. The
designation of critical habitat informs State agencies and local
governments about areas that could be conserved under State laws or
local ordinances. Any additional information about the needs of the
Taylor's checkerspot butterfly or its habitat that reaches a wider
audience can be of benefit to future conservation efforts. During the
spring of 2013 alone, the Service hosted two prairie workshops, one
public hearing, and two local Thurston County events attended by nearly
1,000 people to publicize and educate local community members of the
species' declining distribution, and the threat to the native flora and
fauna found on western Washington prairies. An important conservation
measure that is gained through these outreach networks is the ability
to educate the public about the historical role and current importance
of prairies to our local community and economy. Included among the
outreach measures is the distribution of educational material, and
encouraging landowners to conduct prairie restoration activities on
their properties. Additional events are expected to occur in the
future, and designation of the Wildlife Areas as critical habitat is
not expected to increase the number of such meetings or improve their
outcomes. Therefore, the incremental benefit of critical habitat in
terms of education value is negligible.
The incremental benefit of inclusion is minimized because of the
long-standing management planning efforts for each Wildlife Area, and
the associated private inholding, as discussed above. In addition, the
restoration plans provide greater protection to Taylor's checkerspot
butterfly habitat than the designation of critical habitat, since the
planning effort is intended to actively improve the structure and
composition of the habitat. Therefore, designation of critical habitat
on these areas would not provide any additional management focus that
is not already occurring at these locations under Washington State
management authority, through plans developed through the Service's
recovery program, or through the DOD ACUB funding authority which has
provided funding support for many of our local protected prairies,
including these Wildlife Areas.
Benefits of Exclusion--Scatter Creek Wildlife Area and Adjacent
Private Land; West Rocky Prairie Wildlife Area--The benefits of
excluding these two Wildlife Areas and the associated private inholding
from designated critical habitat are substantial. We have worked to
sustain a close partnership with WDFW through regular coordination and
the development of the Wildlife Area management plans. The management
plans contain provisions that will improve the conservation status of
the Taylor's checkerspot butterfly. Measures contained in the
management plans are consistent with recommendations from the Service
for the conservation of the Taylor's checkerspot butterfly, and will
afford benefits to the subspecies and its habitat.
Excluding these Wildlife Areas and associated private inholding
from critical habitat designation will provide significant benefits in
terms of sustaining and enhancing the excellent partnership between the
Service, WDFW, and the private landowner, as well as other partners who
participate in prairie management decision-making, with positive
consequences for conservation. The willingness of WDFW and the private
landowner to undertake conservation efforts for the benefit of the
Taylor's checkerspot butterfly and to work with the Service to develop
new management plans for the species will continue to reinforce those
conservation efforts and our partnership, which will support the
recovery process for Taylor's checkerspot butterfly. We consider this
voluntary partnership in conservation vital to our understanding of the
status of Taylor's checkerspot butterfly on WDFW lands and throughout
western Washington, and necessary for us to implement recovery actions
such as habitat protection, restoration, and beneficial management
actions for the subspecies. Furthermore, exclusion from critical
habitat could have the benefit of encouraging other landowners to
engage in similar conservation partnerships and efforts, with positive
outcomes for the conservation of listed species.
The designation of critical habitat could have an unintended
negative effect on our relationship with non-Federal landowners due to
the perceived imposition of redundant government regulation. If lands
within the area managed by WDFW for the benefit of the Taylor's
checkerspot butterfly are designated as critical habitat, it could have
a dampening effect on our continued ability to seek new partnerships
with future participants including States, counties, local
jurisdictions, conservation organizations, and private landowners,
which together can implement various conservation actions (such as safe
harbor agreements (SHAs), HCPs, and other conservation plans,
particularly large, regional conservation plans that involve numerous
participants or address landscape-level conservation of species and
habitats) that we would be unable to accomplish otherwise. Our WDFW
conservation partners made a commitment more than a decade ago to
include the Taylor's checkerspot butterfly in their Wildlife Area
implementation plan, and they have engaged with and encouraged others
to join in conservation partnerships, such as the South Puget Sound
Prairie Landscape Working Group. In addition, the private landowner
serves as a model of voluntary conservation and may aid in fostering
future voluntary conservation efforts by other private parties in other
locations for the benefit of listed species; this is a significant
benefit, since the majority of listed species occur on private lands.
We consider the positive effect of excluding proven conservation
partners from critical habitat to be a significant benefit of
exclusion.
Benefits of Exclusion Outweigh Benefits of Inclusion--Scatter Creek
Wildlife Area and Adjacent Private Land; West Rocky Prairie Wildlife
Area--We have determined that the benefits of excluding these prairie
Wildlife Areas (Scatter Creek and adjacent private land, and West Rocky
[[Page 61542]]
Prairie) from the designation of critical habitat for the Taylor's
checkerspot butterfly outweigh the benefits of including these areas in
critical habitat. The regulatory and informational benefits of
inclusion will be minimal. As noted above, a potential benefit of
inclusion would be the requirement of a Federal agency to ensure that
their actions on these non-Federal lands would not likely result in the
destruction or adverse modification of critical habitat. However, this
additional analysis to determine whether a Federal action is likely to
result in destruction or adverse modification of critical habitat is
not likely to be significant because these covered lands are not under
Federal ownership, making the application of section 7 less likely. Any
additional benefits of inclusion on the section 7 process are therefore
relatively unlikely because a Federal nexus on these lands would rarely
occur. If a Federal nexus were to occur, it would most likely be with
the Service or DOD, and the proposed actions would be geared toward the
conservation benefits of restoring and enhancing habitat specifically
for the Taylor's checkerspot butterfly, or other rare butterflies. This
type of proactive management, if focused on the maintenance of open,
short-statured vegetative conditions that the Taylor's checkerspot
butterfly typically occupies, will outweigh any benefit from the
regulatory designation of critical habitat, which only requires the
avoidance of adverse modification and does not require the creation,
improvement, or restoration of habitat.
The South Puget Sound Prairie Landscape Working Group partnership,
which assists with guiding management on the Wildlife Areas, would not
be additionally benefitted due to inclusion of the Wildlife Areas in
critical habitat, as this is a well-established, cohesive, and
productive group that has and will continue to yield positive
conservation outcomes for Taylor's checkerspot butterfly on south Sound
prairies, including these Wildlife Areas, regardless of critical
habitat. The conservation strategies of each Wildlife Area management
plan are crafted to protect and enhance habitat for the Taylor's
checkerspot butterfly. These plans includes species-specific management
actions to support Taylor's checkerspot butterfly, avoidance and
minimization measures, and monitoring requirements to ensure proper
implementation, which further minimizes the benefits of including these
areas in a designation of critical habitat.
A significant benefit of excluding these lands is that it will help
us maintain and foster an important and successful partnership with our
Washington State conservation partners who made a decision to include
the Taylor's checkerspot butterfly in their Wildlife Area
implementation plan in 2007, when it was a State endangered species
(and a Federal candidate species). They have encouraged others to join
in conservation partnerships as well. Recognizing the important
contributions of our conservation partners through exclusion from
critical habitat helps to preserve these partnerships, and helps foster
future partnerships for the benefit of listed species, the majority of
which do not occur on Federal lands; we consider this to be a
substantial benefit of exclusion. For these reasons, we have determined
that the benefits of exclusion outweigh the benefits of inclusion in
this case.
Exclusion Will Not Result in the Extinction of the Species--Scatter
Creek Wildlife Area and Adjacent Private Land; West Rocky Prairie
Wildlife Area--We have determined that exclusion of approximately 633
ac (256 ha) in the Scatter Creek Wildlife Area owned by WDFW, 98 ac (40
ha) of private land that is managed by WDFW in the same way as Scatter
Creek Wildlife Area, and 134 ac (54 ha) of the West Rocky Prairie
Wildlife Area, lands covered by management plans vetted by several
conservation partners working in south Puget Sound, will not result in
the extinction of Taylor's checkerspot butterfly. Actions covered by
the Wildlife Area management plans will not result in extinction of
Taylor's checkerspot butterfly because the plans provide for the needs
of the species by protecting, restoring, and enhancing all the known
occupied and potentially suitable Taylor's checkerspot butterfly
habitat under the jurisdiction of the State; committing to the
enhancement and recruitment of additional habitat through management on
each Wildlife Area to support meta-population structure within the
Wildlife Areas; and implementing species-specific conservation measures
designed to avoid and minimize impacts to the Taylor's checkerspot
butterfly. Further, for projects having a Federal nexus and potentially
affecting the Taylor's checkerspot butterfly in occupied areas, the
jeopardy standard of section 7 of the Act, coupled with protection
provided by the voluntary Taylor's checkerspot butterfly conservation
plans that are available to landowners if they so choose, would provide
a level of assurance that this subspecies will not go extinct as a
result of excluding these lands from the critical habitat designation.
Additionally, each of the Wildlife Areas has a specific management plan
to guide long-term management to direct the habitat enhancement
activities at each location. The subspecies is also protected from take
under section 9 of the Act on all properties where the subspecies is
found. Federal agencies would be required to minimize the effects of
incidental take, and would be encouraged to avoid incidental take
through the section 7 consultation process. For these reasons, we find
that exclusion of these lands covered by these specific Wildlife Area
management plans will not result in extinction of the Taylor's
checkerspot butterfly. Based on the above discussion, the Secretary is
exercising her discretion under section 4(b)(2) of the Act to exclude
from this final critical habitat designation portions of the proposed
critical habitat units or subunits that are owned or managed by WDFW,
totaling about 865 ac (350 ha).
Merrill and Ring Company Voluntary Habitat Conservation Plan
Private lands totaling 10 ac (4 ha) in Unit 2 (Elwha) and covered
under the Merrill and Ring Company voluntary habitat conservation plan
are excluded from this critical habitat designation under section
4(b)(2) of the Act. Merrill and Ring Company is a private forest
landowner whose property abuts occupied Taylor's checkerspot butterfly
habitat. Merrill and Ring Company has collaboratively developed a
voluntary habitat conservation plan for the Taylor's checkerspot
butterfly (Schaaf and Davis 2010) in partnership with WDFW, which was
approved and signed by WDFW and Merrill and Ring Company on February
10, 2010, and was recently extended from an expiration date of December
31, 2014, to December 31, 2020 (Schaff and Carlson 2013). The portion
of WDFW's Taylor's checkerspot butterfly management site on Merrill and
Ring Company property is approximately 7 ac (3 ha) in size and is
situated on the south side of the ridge which separates Eden Valley
from Indian Creek Valley. Despite the small actual acreage of the
management area for Taylor's checkerspot owned by Merrill and Ring, the
voluntary habitat conservation plan covers 100 ac (40 ha) of their
property and acknowledges the potential for Taylor's checkerspot
butterfly habitat to change in extent and quality over time. The
management plan commits to actions focused on protecting available
habitat from various types of traffic and ground disturbance, and the
corporation has no plan to implement any logging within the
[[Page 61543]]
occupied Taylor's checkerspot butterfly management area at any time.
Merrill and Ring's voluntary habitat conservation plan defers all
logging actions through 2020, and at that time, tree harvesting will
only be implemented in the adjacent commercial forests, where a
thinning operation may be considered. The voluntary habitat
conservation plan provides assurances for the restriction of pesticides
(which will not be applied aerially within 1 mile (1.6 kilometers) of
the site) and herbicides (which will be applied through ground-based
methods only and provides greater selectivity in the application
process). Merrill and Ring Company has cooperated with WDFW to allow
ongoing surveys of Taylor's checkerspot butterflies, which will serve
as the foundation for the monitoring of populations and habitat
conditions.
Benefits of Inclusion--Merrill and Ring Company Voluntary Habitat
Conservation Plan--The primary effect of designating any particular
area as critical habitat is the requirement for Federal agencies to
consult with us under section 7 of the Act to ensure actions they carry
out, authorize, or fund do not adversely modify designated critical
habitat. Absent critical habitat designation in occupied areas, Federal
agencies remain obligated under section 7 of the Act to consult with us
on actions that may affect a federally listed species to ensure such
actions do not jeopardize the species' continued existence.
The analysis of effects to critical habitat is a separate and
different analysis from that of the effects to the species. Therefore,
the difference in outcomes of these two analyses represents the
regulatory benefit of critical habitat. The regulatory standard is
different, as the jeopardy analysis investigates the action's impact on
the survival and recovery of the species, while the adverse
modification analysis focuses on the action's effects on the designated
habitat's contribution to conservation. This will, in many instances,
lead to different results and different regulatory requirements. Thus,
critical habitat designations have the potential to provide greater
benefit to the recovery of a species than would listing alone.
The inclusion of these private lands as critical habitat could
provide some additional Federal regulatory benefits for the species
consistent with the conservation standard addressed in the Ninth
Circuit Court's decision in Gifford Pinchot Task Force v. United States
Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004). As noted
above, a potential benefit of inclusion would be the requirement of a
Federal agency to ensure that their actions on these non-Federal lands
would not likely result in the destruction or adverse modification of
critical habitat. However, this additional analysis to determine
whether a Federal action is likely to result in destruction or adverse
modification of critical habitat is not likely to be significant
because these covered lands are not under Federal ownership, making the
application of section 7 less likely. The granting of Federal funds for
beneficial management of Taylor's checkerspot butterfly habitat would
provide the only possibility for a Federal nexus covering these lands.
Although this forest landowner may apply for a Forest Practices permit
from the State of Washington to harvest timber, it is unlikely to
trigger a section 7 consultation, as they would not require Federal
funding or authorization for this operation. Merrill and Ring's
proposed management actions that may be slated for this location are
expected to involve tree removal, which would not likely expose
Taylor's checkerspot butterfly to actions that would cause harm or take
of the species. The action of removing trees has the potential to
improve conditions that would be favorable to Taylor's checkerspot
butterflies by reducing shade, increasing open areas, and stimulating
the establishment and growth of host plant seeds stored in the soil
(e.g., Castilleja hispida, Plantago lanceolata), thereby providing a
benefit to the Taylor's checkerspot butterfly.
Another benefit of including lands in a critical habitat
designation is that it serves to educate landowners, State and local
governments, private landowners, and the public regarding the potential
conservation value of an area. This helps focus and promote
conservation efforts by all parties by identifying areas of high
conservation value for the Taylor's checkerspot butterfly. The
designation of critical habitat informs State agencies and local
governments about areas that could be conserved under State laws or
local ordinances. Any additional information about the needs of the
Taylor's checkerspot butterfly or its habitat that reaches a wider
audience can be of benefit to future conservation efforts and the
designation of critical habitat increases our ability to educate
private landowners and the public during outreach events concerning the
historical role and current importance of grassland balds. We notified
the general public about outreach events and hearings through a Federal
Register notice on April 3, 2013 (78 FR 20074). Our outreach measures
included the distribution of educational material, and encouragement of
landowners to conduct Taylor's checkerspot habitat restoration
activities on their own properties. Additional events are expected to
occur in the future, and designation of this property as critical
habitat is not expected to increase the number of such meetings or
improve their outcomes, therefore the potential educational value of
critical habitat is minimized.
The incremental benefit from designating critical habitat for
Taylor's checkerspot butterfly is further reduced due to the long-
standing management planning efforts for the adjacent WDNR land and the
recently acquired conservation property managed by CNLM. These
properties have been managed for the conservation of bald-associated
species and each property provides larval host plants and adult nectar
resources for Taylor's checkerspot butterflies. For this reason, they
contain many of the PCEs to support the butterfly. The management
planning for each of these properties has established a track record of
positive conservation actions focused on enhancing grassland bald
composition and structure at each location. All of these lands have
benefited from the conservation measures implemented by WDFW (Hays 2011
p. 53), the planning efforts for WDNR managed lands, and the voluntary
habitat conservation plan for Merrill and Ring Company. These
conservation plans provide greater protection to Taylor's checkerspot
butterfly habitat than the designation of critical habitat since the
planning effort is intended to improve the structure and composition of
the habitat, and as often as not this work may not be associated with a
Federal action.
The voluntary habitat conservation plan from Merrill and Ring
provides for the needs of Taylor's checkerspot butterfly by protecting
and managing the grassland balds and implements species-specific
conservation measures designed to avoid and minimize impacts to
Taylor's checkerspot butterfly.
The voluntary habitat conservation plan developed by Merrill and
Ring Company specifies that no roads would be constructed within 400
feet (ft) (122 meters (m)) of currently occupied balds and access to
the property is restricted by a gate. Merrill and Ring Company has
committed to no timber harvest on the lands covered by the voluntary
habitat conservation plan through the year 2020, at which time they may
consider a thinning operation. There are plans to conduct a
regeneration harvest of the
[[Page 61544]]
forested stands in 2033, and Merrill and Ring Company agrees to buffer
their managed lands from Taylor's checkerspot butterfly habitat after
consultation with WDFW and the Service.
Because of the recent success of Taylor's checkerspot butterfly
translocations, the planning group who oversees the schedule for
translocations would give priority consideration to this location for
future introductions of Taylor's checkerspot butterfly onto high
quality bald habitat. Therefore, designation of critical habitat would
not provide any additional management planning effort that is not
already occurring at these locations under WDFW management authority,
voluntary conservation planning efforts, or restoration actions
developed through our recovery program, or through DOD ACUB funding
authority, which provided the funding support for CNLM to purchase the
adjacent property located at Dan Kelly Ridge.
Benefits of Exclusion--Merrill and Ring Company Voluntary Habitat
Conservation Plan--The benefits of excluding this private property from
designated critical habitat are substantial. We have worked to sustain
a close partnership with WDFW and the landowner through regular
coordination and the development of the Merrill and Ring Company
voluntary habitat conservation plan. The voluntary habitat conservation
plan contains provisions that will improve the conservation status of
the Taylor's checkerspot butterfly. Measures contained in the plan are
consistent with recommendations from the Service for the conservation
of the Taylor's checkerspot butterfly, and will afford benefits to the
subspecies and its habitat.
Excluding this private property from critical habitat designation
will provide significant benefit in terms of sustaining and enhancing
the ongoing partnership between the Service, WDFW, and the private
landowner, with positive consequences for conservation. The willingness
of the private landowner to undertake conservation efforts for the
benefit of the Taylor's checkerspot butterfly and to work with WDFW and
the Service to develop and employ species conservation actions will
continue to reinforce those conservation efforts and our partnership,
which contribute toward achieving recovery of the Taylor's checkerspot
butterfly. We consider this voluntary partnership in conservation vital
to our understanding of the status of the Taylor's checkerspot
butterfly on agricultural lands in western Washington, and necessary
for us to implement recovery actions such as habitat protection and
restoration, and beneficial management actions for this subspecies.
The designation of critical habitat could have an unintended
negative effect on our relationship with non-Federal landowners due to
the perceived imposition of redundant government regulation. If these
private lands, which have been managed under preexisting conservation
plans for the benefit of Taylor's checkerspot butterfly, are designated
as critical habitat, it could have a dampening effect on our continued
ability to seek new partnerships with future participants including
States, counties, local jurisdictions, conservation organizations, and
private landowners, which together can implement various conservation
actions (such as SHAs, HCPs, and other conservation plans, particularly
large, regional conservation plans that involve numerous participants
and address landscape-level conservation of species and habitats) that
we would be unable to accomplish otherwise. This private landowner made
a commitment to conserve Taylor's checkerspot butterflies and their
habitat in their voluntary habitat conservation plan. This private
landowner serves as a model of voluntary conservation and may aid in
fostering future voluntary conservation efforts by other parties in
other locations for the benefit of listed species. We consider the
positive effect of excluding proven conservation partners from critical
habitat to be a significant benefit of exclusion.
Benefits of Exclusion Outweigh Benefits of Inclusion--Merrill and
Ring Company Voluntary Habitat Conservation Plan--In summary, we
determine that the benefits of excluding the private land parcel owned
and managed by Merrill and Ring Company, situated adjacent to lands
conserved for Taylor's checkerspot managed by the WDNR and the CNLM,
outweigh the benefits of including this property in critical habitat.
As described above, the regulatory and informational benefits of
inclusion will be minimal, as these lands are already being managed for
the conservation of Taylor's checkerspot butterfly under a voluntary
habitat conservation plan. Any additional benefits of inclusion in
critical habitat based on the section 7 process are unlikely because a
Federal nexus on these lands is not expected to occur.
In addition, the conservation strategies of Merrill and Ring
Company voluntary habitat conservation plan for the Taylor's
checkerspot butterfly are designed to protect, restore, and enhance
habitat for the subspecies. This plan includes species-specific
management actions to support the Taylor's checkerspot butterfly,
avoidance and minimization measures, and annual monitoring requirements
to ensure proper implementation, which further minimizes the benefits
that would be provided as a result of a critical habitat designation.
The benefit of excluding this private land parcel is that it will
help us maintain an important and successful conservation partnership
with private and non-governmental partners, as well as with our State
conservation partners, WDFW, and WDNR, all of whom have made a
commitment to manage for this subspecies and work cooperatively and
collaboratively with the Service. We further believe that by
recognizing the voluntary habitat conservation plan negotiated by WDFW
and Merrill and Ring Company, this voluntary plan can serve as a model
for other landowners in developing conservation partnerships for the
benefit of endangered or threatened species, whether that partnership
is with the Service, the State, or another entity. As the majority of
listed species occur on private lands, we consider these partnerships
with private landowners to be a significant benefit for conservation.
For these reasons, we have determined that the benefits of exclusion
outweigh the benefits of inclusion in this case.
Exclusion Will Not Result in the Extinction of the Species--Merrill
and Ring Company Voluntary Habitat Conservation Plan--We have
determined that exclusion of approximately 10 ac (4 ha) of private
timber lands covered by a voluntary habitat conservation plan by
Merrill and Ring Company will not result in the extinction of the
Taylor's checkerspot butterfly. Although Taylor's checkerspot butterfly
is known to occupy an adjacent property, it is not known to occur at
present on the Merrill and Ring lands in question. Actions covered by
the voluntary habitat conservation plan will not result in extinction
of the Taylor's checkerspot butterfly because the voluntary habitat
conservation plan provides for the needs of the butterfly primarily by
avoiding any actions that may perpetuate take of the species or its
habitat by deferring any actions in the vicinity of Taylor's
checkerspot butterfly habitat for the next decade. Any action taken at
that time would be in the form of forest thinning (e.g., tree removal
on the margins of the bald habitat), which could contribute to the
restoration and enhancement of the currently known occupied and
potentially suitable Taylor's checkerspot
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butterfly habitat under the jurisdiction of the State. There is little
likelihood of this timber company project having a Federal nexus and
therefore having an adverse effect to Taylor's checkerspot butterfly in
occupied areas, which would trigger the jeopardy standard of section 7
of the Act. Additionally, the voluntary habitat conservation plan for
Taylor's checkerspot butterfly entered into by the company would
provide a level of assurance that this subspecies will not go extinct
as a result of excluding these lands from the critical habitat
designation. The subspecies is protected from take under section 9 of
the Act on all properties where the subspecies is found. For these
reasons, we find that exclusion of these private lands covered by the
voluntary habitat conservation plan for the Taylor's checkerspot
butterfly will not result in extinction of the Taylor's checkerspot
butterfly. Based on the above discussion, the Secretary is exercising
her discretion under section 4(b)(2) of the Act to exclude from this
final critical habitat designation portions of the proposed critical
habitat unit or subunit that are owned and managed by the private
timber company, Merrill and Ring.
Colvin Ranch Grassland Reserve Program Management Plan
Private lands totaling 378 ac (153 ha) that are covered under an
NRCS Grassland Reserve Program Management Plan are excluded from Unit
1-Rock Prairie in this critical habitat designation under section
4(b)(2) of the Act. The Service has coordinated directly with NRCS
regarding conservation actions that are being implemented on the
portion of Rock Prairie that lies south of Old Hwy 99 (hereafter known
as Colvin Ranch). Colvin Ranch has been managed for approximately 10
years under a long-term Grassland Reserve Program Management Plan (GRP
plan), and 530 ac (215 ha) of the property is conserved in perpetuity
by a conservation easement held by NRCS, of which a portion (378 ac
(153 ha)) is excluded from critical habitat. Under the GRP plan, the
landowners manage their land using a livestock grazing guideline for
western Washington prairies developed in partnership with NRCS. The GRP
plan uses intensive livestock grazing as the primary tool to minimize
the invasion of prairies by Douglas fir and other woody native and
nonnative shrub species. Additionally, pasture grasses that are often
in competition for resources with the native prairie species are
consumed by the livestock, which makes room for native prairie species
in the process of restoring prairie composition, structure and
function. All of these practices provide a positive conservation
benefit for the Taylor's checkerspot butterfly and its habitat. The
Service has been coordinating with the landowners regarding the
potential use of Colvin Ranch for the reintroduction of the Taylor's
checkerspot butterfly to Rock Prairie.
Benefits of Inclusion-Colvin Ranch Grassland Reserve Program
Management Plan--The primary effect of designating any particular area
as critical habitat is the requirement for Federal agencies to consult
with us under section 7 of the Act to ensure actions they carry out,
authorize, or fund do not adversely modify designated critical habitat.
Absent critical habitat designation in occupied areas, Federal agencies
remain obligated under section 7 of the Act to consult with us on
actions that may affect a federally listed species to ensure such
actions do not jeopardize the species' continued existence. Colvin
Ranch is not currently occupied by the Taylor's checkerspot butterfly;
therefore a Federal action would not trigger a jeopardy analysis, but
would only trigger an analysis of adverse modification should critical
habitat be designated. The benefits derived from including critical
habitat for this property would most likely be derived from the
potential Federal nexus resulting from the granting of Federal funds
intended to manage the lands to benefit prairie associated species,
such as the Taylor's checkerspot butterfly. However, we anticipate that
section 7 consultation related to habitat management funding is not
likely to provide much added benefit to the species, since the action
being consulted on is itself intended to benefit prairie-associated
species, including the Taylor's checkerspot butterfly.
Another benefit of including lands in a critical habitat
designation is that it serves to educate landowners, State and local
governments, and the public regarding the potential conservation value
of an area. This helps focus and promote conservation efforts by other
parties by identifying areas of high conservation value for Taylor's
checkerspot butterfly. Designation of critical habitat informs State
agencies and local governments about areas that could be conserved
under State laws or local ordinances. Any additional information about
the needs of the Taylor's checkerspot butterfly or its habitat that
reaches a wider audience can be of benefit to future conservation
efforts.
During the spring of 2013 alone, the Service hosted four prairie
focused workshops and one public hearing specifically related to the
proposed listing and designation of critical habitat. We also
participated in two local prairie education events in Thurston County
attended by nearly 1,000 people to publicize and educate local
community members of the declining distributions and threats to the
native flora and fauna found on the west-side prairies. One of these
events was hosted and held at Colvin Ranch. An important conservation
measure gained through these outreach networks is our ability to
educate the public about the historical role and current importance of
prairies to our local community and economy. Included among the
outreach measures is the distribution of educational material and the
benefit derived from encouraging landowners to conduct prairie
restoration activities on their own properties. Additional events are
expected to occur in the future, and designation of Colvin Ranch as
critical habitat is not expected to increase the number of such
meetings or improve their outcomes. As Colvin Ranch is already serving
as a center of educational information regarding the conservation of
prairie habitats and their associated species, including Taylor's
checkerspot butterfly, any potential additional benefit stemming from
the designation of critical habitat on this property is negligible.
The incremental benefit from designating critical habitat for the
Taylor's checkerspot butterfly is further minimized due to the long-
standing management planning efforts implemented on Colvin Ranch. The
property owner has implemented management for the conservation of
prairie habitat that provides larval host and adult nectar foods for
the Taylor's checkerspot butterfly, and the land itself contains many
of the essential physical or biological features to support the
butterfly. The implementation of the GRP plan for Colvin Ranch has
established a track record of activity focused on enhancing prairie
plant composition and structure. The conservation measures applied at
Colvin Ranch have more recently been refocused through the development
of site-specific implementation plans for each location to benefit
Taylor's checkerspot butterflies and other rare prairie butterflies.
The implementation of Colvin Ranch GRP plan provides greater protection
to Taylor's checkerspot butterfly habitat than the designation of
critical habitat since the
[[Page 61546]]
management is intended to improve the habitat structure and composition
of the several native prairie dominated paddocks on Colvin Ranch
(critical habitat designation does not require active management). In
many cases, this work is accomplished without Federal funding, which
highlights the landowner's willingness to continue the partnership.
Colvin Ranch has been an active working ranch in Thurston County
since 1865. Originally over 3,000 ac (1,214 ha) in size, it is now
approximately 1,000 ac (405 ha) and located in southern Thurston
County. Grazing systems have been modified dramatically during this
time period. Colvin Ranch required an improvement to the infrastructure
in order to accomplish the goal of improving native prairie composition
on the ranch through intensive grazing, a practice of grazing greater
numbers of cows on specific pastures (paddocks) for shorter time
periods. Miles of fencing were erected to partition the fields into
intensively managed paddocks, and in each paddock a water source was
made available. The intensive management regime requires that livestock
be moved often according to vegetation height or soil condition changes
specified in the GRP management plan. The Colvin Ranch has been
partitioned into 35 paddocks, with nearly 300 ac (120 ha) managed for
the production of native prairie plant composition. Colvin Ranch is
presently being managed for the benefit of the Taylor's checkerspot
butterfly and its habitat; we have no information to suggest that the
designation of critical habitat on this property would generate any
added benefit to the already positive management efforts being
implemented.
Benefits of Exclusion--Colvin Ranch Grassland Reserve Program
Management Plan--The benefits of excluding this private property from
designated critical habitat are substantial. We have developed a close
partnership with the landowner and NRCS through regular coordination
and outreach activities, using Colvin Ranch as an example of land uses
that are compatible with prairie conservation. The GRP plan provisions
that will improve the conservation status of the Taylor's checkerspot
butterfly include novel grazing practices which have resulted in the
dramatic increase and maintenance of diverse larval and adult food
resources for the subspecies. Measures contained in the GRP plan are
consistent with recommendations from the Service for the conservation
of the Taylor's checkerspot butterfly, and will afford benefits to the
subspecies and its habitat.
Excluding this private property from critical habitat designation
will provide a significant benefit in terms of sustaining and enhancing
the excellent partnership between the Service, NRCS, and the private
landowner, as well as other partners who participate in prairie
management decision-making, with positive consequences for
conservation. The willingness of the private landowner to undertake
conservation efforts for the benefit of the Taylor's checkerspot
butterfly and work with NRCS and the Service to develop and employ
conservation actions, will continue to reinforce those conservation
efforts and our partnership, which contribute toward achieving recovery
of the Taylor's checkerspot butterfly. We consider this voluntary
partnership in conservation vital to the development of our
understanding of the status of Taylor's checkerspot butterfly on
agricultural lands in western Washington, and necessary for us to
implement recovery actions such as habitat protection, restoration, and
beneficial management actions for this subspecies.
The designation of critical habitat could have an unintended
negative effect on our relationship with non-Federal landowners due to
the perceived imposition of government redundant regulation.
Designation of critical habitat on private lands that are managed for
the benefit of prairie species, including the Taylor's checkerspot
butterfly, could have a dampening effect on our continued ability to
seek new partnerships with future participants including States,
counties, local jurisdictions, conservation organizations, and private
landowners. Together, these parties can implement various cooperative
conservation actions (such as SHAs, HCPs, and other conservation plans,
particularly large, regional conservation plans that involve numerous
participants and/or address landscape-level conservation of species and
habitats) that we would be unable to accomplish otherwise. This private
landowner made a commitment almost a decade ago to develop and
implement this GRP management plan, which has restored much of Rock
Prairie to habitat favorable to the reintroduction of the Taylor's
checkerspot butterfly, and they have engaged with and encouraged other
parties, both public and private, to join in conservation partnerships.
Further, we have been coordinating with this landowner about the
potential for using Rock Prairie as a reintroduction site for the
Taylor's checkerspot butterfly. We believe Colvin Ranch would be less
likely to participate in the reintroduction of the Taylor's checkerspot
butterfly to Rock Prairie or to encourage others to participate in
similar grazing intensive ranching practices that restore Taylor's
checkerspot butterfly habitat if critical habitat were to be designated
on this property. This private landowner serves as a model of voluntary
conservation and may aid in fostering future voluntary conservation
efforts by other parties in other locations for the benefit of listed
species. Most endangered or threatened species do not occur on Federal
lands. As the recovery of these species will therefore depend on the
willingness of non-Federal landowners to partner with us to engage in
conservation efforts, we consider the positive effect of excluding
proven conservation partners from critical habitat to be a significant
benefit of exclusion.
Benefits of Exclusion Outweigh Benefits of Inclusion--Colvin Ranch
Grassland Reserve Program Management Plan--In summary, we determine
that the benefits of excluding the NRCS GRP managed prairies at Colvin
Ranch from the designation of critical habitat for the Taylor's
checkerspot butterfly outweigh the benefits of including these areas in
critical habitat. The regulatory and informational benefits of
inclusion will be minimal. Furthermore, any potential additional
benefits of inclusion on the section 7 process are relatively unlikely
because a Federal nexus on these lands would rarely occur. If one were
to occur, it would most likely be with the Service or NRCS, and their
actions will be geared toward the conservation benefits of restoring
and enhancing habitat specifically for the Taylor's checkerspot
butterfly, or other rare butterflies. This type of management is
focused on the maintenance of open, short statured vegetative
conditions that Taylor's checkerspot butterflies typically occupy.
Since any action likely to be the subject of consultation under the
adverse modification standard on this unoccupied area would be focused
on providing positive habitat benefits for the Taylor's checkerspot
butterfly, we find it unlikely that critical habitat would result in
any significant additional benefit to the subspecies. Furthermore, the
benefits of including this area in critical habitat are reduced since
significant management actions are already underway to restore the
prairie habitat in this area for the benefit of rare butterflies,
including Taylor's checkerspot butterfly. In this instance, the GRP
plan for Colvin Ranch contains
[[Page 61547]]
provisions for protecting and restoring prairie habitat for the
Taylor's checkerspot butterfly on Rock Prairie that exceed the
conservation benefits that would be afforded through section 7
consultation.
A significant benefit of excluding these lands is that it will help
us maintain and foster an important and successful partnership with
this private landowner partner and NRCS. They have consistently
supported stewardship of prairie habitat beneficial to the conservation
of the Taylor's checkerspot butterfly and have consistently encouraged
others to join in conservation partnerships as well. The exclusion of
Colvin Ranch will serve as a positive conservation model, and encourage
other private landowners to partner with the Service for the purpose of
conserving listed species. For these reasons, we have determined that
the benefits of exclusion outweigh the benefits of inclusion in this
case.
Exclusion Will Not Result in the Extinction of the Species--Colvin
Ranch Grassland Reserve Program Management Plan--We have determined
that exclusion of approximately 378 ac (153 ha) for the portion of Rock
Prairie managed under the GRP management plan implemented at Colvin
Ranch will not result in extinction of the Taylor's checkerspot
butterfly. Presently, Rock Prairie is unoccupied by the Taylor's
checkerspot butterfly, but it was previously known to fly in great
abundance on Rock Prairie. Actions covered by the GRP management plan
will not result in the extinction of the Taylor's checkerspot butterfly
because: (i) The butterfly is not present on Colvin Ranch at this time;
(ii) the management implemented on Colvin Ranch has continually
improved the prairie habitat during the 9 years it has been practiced;
and (iii) management of the prairie paddocks will continue and be
modified over time as new information is gained through systematically
monitoring the results of their intensive grazing system.
Benton County Prairie Species HCP, Oregon
Approximately 106 ac (43 ha) of lands owned by Benton County
(Oregon) and proposed as critical habitat for the Taylor's checkerspot
butterfly are covered under the Benton County Prairie Species HCP and
are excluded from Unit 4 of this critical habitat designation under
section 4(b)(2) of the Act. The Benton County Prairie Species HCP has a
50-year term and addresses lands owned or managed by Benton County and
any private lands in the County that contain wet or upland prairie
habitat in Benton County. This HCP includes provisions for long-term
planning, avoiding and minimizing impacts to habitat for the species
that are covered under the HCP, and mitigating for habitat losses when
it is unavoidable. The Benton County Prairie Species HCP covers a total
of roughly 11,700 ac (4,734 ha) of lands and rights-of-way within
Benton County with prairie habitat, of which Benton County owns
approximately 1,182 ac (478 ha). On January 14, 2011, a section
10(a)(1)(B) permit was issued to the County under the Act. The seven
species covered under this HCP exclusively occupy prairie and prairie-
like habitats and include the Taylor's checkerspot butterfly, Fender's
blue butterfly (Icaricia icarioides fenderi), Bradshaw's lomatium
(Lomatium bradshawii), Kincaid's lupine (Lupinus oreganus), peacock
larkspur (Delphinium pavonaceum), Nelson's checkermallow (Sidalcea
nelsoniana), and Willamette daisy (Erigeron decumbens).
Covered activities include ground-disturbing construction
activities associated with home building, farming, and forestry
practices; management of public lands and lands owned or managed by
conservation organizations; and activities providing essential public
services in the County (e.g., transportation and water system
management, and utilities construction and maintenance). Cooperators
under the HCP include: the City of Corvallis, Oregon Department of
Transportation, Oregon State University, Greenbelt Land Trust, Pioneer
Telephone Cooperative, and NorthWest Natural Gas.
The overall biological goal of this HCP is to achieve sustainable
populations of covered species, while maintaining local populations and
fostering habitat connectivity. The County and cooperators will support
sustainable population numbers through conservation measures designed
to enhance existing populations of covered species, support their
habitat, and increase the distribution and connectivity of their
populations in Benton County.
The Benton County Prairie Species HCP has management goals and
objectives for sites that currently support Taylor's checkerspot
butterflies (Fitton Green and Beazell Memorial Forest), and Fort
Hoskins, which has suitable habitat but has not had a documented
occurrence of Taylor's checkerspot butterfly for several years. The
Benton County Prairie Species HCP will undertake prairie habitat
restoration and enhancement in the above locations.
Benefits of Inclusion-Benton County Prairie Species HCP--We find
that there is minimal benefit from designating critical habitat for the
Taylor's checkerspot butterfly within the area covered by the Benton
County Prairie Species HCP because, as explained above, these covered
lands are already managed for the conservation of the subspecies over
the term of the HCP. The Benton County Prairie Species HCP includes a
species-specific management plan for the Taylor's checkerspot
butterfly; avoidance and minimization measures; and monitoring
requirements to ensure proper implementation. The Benton County Prairie
Species HCP provides for the needs of the Taylor's checkerspot
butterfly by protecting and managing all current and former known
habitat areas on County owned lands and implementing conservation
measures designed to avoid and minimize impacts to individual Taylor's
checkerspot butterflies. Management guidelines were developed for areas
currently occupied by the subspecies as well as areas that have
suitable habitat conditions but that are not known to be currently
occupied. The conservation measures provided by the HCP will provide
greater protection to Taylor's checkerspot butterfly habitat than the
designation of critical habitat since they are intended to improve
habitat conditions (critical habitat only requires the avoidance of
adverse modification; it does not require actions to improve habitat).
Therefore, the HCP contains provisions for protecting and maintaining
Taylor's checkerspot butterfly habitat that exceed the conservation
benefits that would be afforded through section 7 consultation.
The inclusion of these covered lands as critical habitat could
provide some additional Federal regulatory benefits for the species
consistent with the conservation standard based on the Ninth Circuit
Court's decision in Gifford Pinchot Task Force v. United States Fish
and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004). Because one of the
primary threats to Taylor's checkerspot butterfly is habitat loss and
degradation, the consultation process under section 7 of the Act for
projects in occupied areas (Beazell Forest and Fitton Green) with a
Federal nexus will, in evaluating effects to Taylor's checkerspot
butterfly under the jeopardy standard, evaluate the effects of the
action on the conservation or functionality of the habitat for the
subspecies regardless of whether critical habitat is designated on
these lands. The analytical requirements to support a jeopardy
determination on excluded land are similar, but not identical, to the
[[Page 61548]]
requirements in an analysis for an adverse modification determination
on included land. In unoccupied areas (Fort Hoskins), a potential
benefit of inclusion would be the requirement of a Federal agency to
ensure that their actions on these non-Federal lands would not likely
result in the destruction or adverse modification of critical habitat.
The Bonneville Power Administration (BPA) does have a transmission line
corridor right-of-way across the northern portion of Fitton Green that
falls within the boundaries of County-owned lands covered under the
Benton County Prairie Species HCP. BPA conducts limited activities
within the right-of-way that are intended to maintain the integrity of
the powerlines to deliver electrical power. Routine maintenance
activities are mostly related to removing trees that may come in
contact with the powerlines. Tree removal is likely to assist in
maintaining the open, short-statured vegetation communities that
Taylor's checkerspot butterflies require, and most often use. Section 7
consultation related to BPA right-of-way maintenance is not likely to
provide much benefit in reducing impacts to critical habitat since the
nature of routine maintenance activities that would be consulted on
should be beneficial to the long-term maintenance of suitable habitat
for the Taylor's checkerspot butterfly. In addition, as noted above, as
this area is occupied by the subspecies, the effects of any Federal
action will already be analyzed under the jeopardy standard in section
7 consultation, including effects to the conservation value of the
habitat. In general, any Federal agency authorizing, funding, or
carrying out an action on these HCP-covered lands would have to
consider the conservation restrictions on these lands and incorporate
measures necessary to ensure the conservation of these resources,
thereby reducing any incremental benefit critical habitat may have.
Another benefit of including lands in a critical habitat
designation is that it serves to educate landowners, State and local
governments, and the public regarding the potential conservation value
of an area. This helps focus and promote conservation efforts by other
parties by identifying areas of high conservation value for the
Taylor's checkerspot butterfly. Designation of critical habitat informs
State agencies and local governments about areas that could be
conserved under State laws or local ordinances. Any additional
information about the needs of the Taylor's checkerspot butterfly or
its habitat that reaches a wider audience can be of benefit to future
conservation efforts. However, the Benton County Prairie Species HCP
has already gone through public review and included public meetings
about the prairie conservation strategy. An important conservation
measure that is implemented under the HCP is public outreach. Included
among the outreach measures is the distribution of educational
materials, holding prairie conservation workshops, and encouraging
landowners to conduct prairie restoration activities on their own
properties. Additional educational and informational benefits that
might arise from critical habitat designation have already largely
occurred through public meetings and review of the draft HCP and are
going to continue to occur through implementation of the conservation
measures of the final HCP. The potential educational value of critical
habitat in this instance is therefore further reduced.
Benefits of Exclusion-Benton County Prairie Species HCP--Compared
to the minimal benefits of inclusion of this area in critical habitat,
the benefits of excluding from designated critical habitat the
approximately 106 ac (43 ha) of lands currently managed under the HCP
are considerable.
HCP conservation measures that provide a benefit to the Taylor's
checkerspot butterfly and its habitat have been implemented since its
approval in 2011. Excluding the lands managed under the Benton County
Prairie Species HCP from critical habitat designation will sustain and
enhance the working relationship between the Service and the County.
Excluding lands within HCPs from critical habitat designation can
also facilitate our ability to seek new partnerships with future HCP
participants including States, counties, local jurisdictions, non-
governmental conservation organizations, and private landowners, which
together can implement conservation actions that we would be unable to
accomplish otherwise. If lands within the HCP plan areas are designated
as critical habitat, it would likely have a negative effect on our
ability to establish new partnerships to develop HCPs, particularly
larger HCPs that involve numerous participants and address the
necessary landscape-level conservation of species and habitats. By
excluding these lands, we preserve and enhance our current partnerships
and encourage additional conservation actions in the future for the
Taylor's checkerspot butterfly and other listed species.
Benefits of Exclusion Outweigh the Benefits of Inclusion-Benton
County Prairie Species HCP--In summary, we determine that the benefits
of excluding areas covered by the Benton County Prairie Species HCP
from the designation of critical habitat for the Taylor's checkerspot
butterfly outweigh the benefits of including this area in critical
habitat. The regulatory and informational benefits of inclusion will be
minimal. In areas occupied by the Taylor's checkerspot butterfly, any
potential consultation under section 7 of the Act will evaluate the
effects of the action on the conservation or functionality of the
habitat for the species regardless of whether critical habitat is
designated for these lands. The analytical requirements to support a
jeopardy determination on excluded land are similar, but not identical,
to the requirements in an analysis for an adverse modification
determination on included land. The most likely Federal nexus would be
with BPA, and their actions are generally limited to maintaining the
right-of-way to be free of encroaching trees that may eventually come
in contact with the powerlines. This type of right-of-way maintenance
should also maintain the open, short statured vegetative conditions
that the Taylor's checkerspot butterfly typically occupies, and so
benefits the subspecies. The additional benefit of consultation under
the adverse modification standard is therefore minimal.
In addition, the conservation strategies of the Benton County
Prairie Species HCP are designed to protect and enhance habitat for the
Taylor's checkerspot butterfly. The HCP includes a species-specific
management plan for the Taylor's checkerspot butterfly, avoidance and
minimization measures, and monitoring requirements to ensure proper
implementation, which further minimizes the benefits that would be
provided as a result of a critical habitat designation.
The benefit of excluding these lands is that it will help us
maintain an important and successful conservation partnership with a
county government that voluntarily included the Taylor's checkerspot
butterfly in its HCP when it was a Federal candidate species, and
exclusion of these areas may encourage others to join in conservation
partnerships as well. For these reasons, we have determined that the
benefits of exclusion outweigh the benefits of inclusion in this case.
Exclusion Will Not Result in Extinction of the Species-Benton
County Prairie Species HCP--We have determined that exclusion of
approximately 106 ac (43 ha) of lands covered under the Benton County
[[Page 61549]]
Prairie Species HCP will not result in extinction of the Taylor's
checkerspot butterfly because the HCP provides for the needs of the
butterfly by: protecting, restoring, and enhancing all the known
occupied and potentially suitable Taylor's checkerspot butterfly
habitat under the jurisdiction of the County; committing to the
enhancement and recruitment of additional habitat over the term of the
HCP; and, implementing species-specific conservation measures designed
to avoid and minimize impacts to the Taylor's checkerspot butterfly.
Further, for projects having a Federal nexus and affecting Taylor's
checkerspot butterfly in occupied areas, the jeopardy standard of
section 7 of the Act, coupled with protection provided by the Benton
County Prairie Species HCP, would provide a level of assurance that
this species will not go extinct as a result of excluding these lands
from the critical habitat designation. The species is also protected
from take under section 9 of the Act on all properties where the
species is found. Federal agencies would be required to minimize the
effects of incidental take, and would be encouraged to avoid incidental
take through the section 7 consultation process. For these reasons, we
find that exclusion of these lands covered by the Benton County Prairie
Species HCP will not result in extinction of the Taylor's checkerspot
butterfly. Based on the above discussion, the Secretary is exercising
her discretion under section 4(b)(2) of the Act to exclude from this
final critical habitat designation portions of the proposed critical
habitat units or subunits that are within the Benton County Prairie
Species HCP covered lands totaling about 106 ac (43 ha).
Non-Federal Airports
The streaked horned lark occurs on airports because management to
control hazardous wildlife has incidentally created suitable habitat
for the subspecies. Airports create the large, open landscape context
preferred by streaked horned larks, and mowing and other management
practices to maintain short-statured vegetation for aviation safety
similarly inadvertently provides the type of vegetation utilized by the
subspecies. However, airports are not ideal locations for focusing
recovery efforts for the streaked horned lark. First, larks are at risk
of mortality from aircraft collisions, and have been documented as a
hazardous species at airports (Cleary and Dolbeer 2005, p. 101).
Secondly, Federal Aviation Administration (FAA) regulations require
airports to take immediate action to alleviate wildlife hazards
whenever they are detected (14 CFR 139.337). This requirement to
maintain airfields free of wildlife hazards would severely limit the
potential to increase streaked horned lark populations on airports.
Given the combined threats of aircraft strikes and constant management
to minimize bird populations, airports do not provide ideal conditions
for the long-term conservation of the streaked horned lark.
We received comments from the FAA, airports, and airport operators
associations expressing concern that designating critical habitat for
the streaked horned lark on airports implies that airports are desired
locations to provide for conservation and recovery of the streaked
horned lark, which is in conflict with their requirements to provide
safe conditions for aviation. Several commenters recommended that
airports should be excluded from critical habitat in favor of sites
with the potential for long-term conservation management. This is also
consistent with comments received from one of the proposed rule's peer
reviewers: ``[hellip] bird conservation is not and should not be a
desired component of airport management'' (Altman 2013, p. 6). We
agree. Although airports currently support some of the largest
populations of streaked horned larks, we consider airports to provide
transitory suitable habitat for the subspecies, and we have no
intention of encouraging an increase in populations of streaked horned
larks on airports as part of our long-term recovery strategy. Although
the development of a recovery plan will come subsequent to the listing
of the streaked horned lark, it is our intention that the conservation
and recovery of the subspecies will rely on the restoration and
maintenance of more suitable natural habitats or habitats with more
compatible land uses for the streaked horned lark.
Benefits of Inclusion-Non-Federal Airports--We find there are
minimal benefits to including non-Federal airport lands in critical
habitat for the streaked horned lark. As discussed above, the
designation of critical habitat invokes the provisions of section 7.
Since the non-Federal airport lands in question are all occupied by the
streaked horned lark, if a Federal nexus were to occur, section 7
consultation would be triggered by the presence of the listed
subspecies and the Federal agency would consider the effects of its
actions on the subspecies through a jeopardy analysis. Because one of
the primary threats to the streaked horned lark is habitat loss and
degradation, the consultation process under section 7 of the Act for
projects with a Federal nexus will, in evaluating effects to the
streaked horned lark, evaluate the effects of the action on the
conservation or functionality of the habitat for the subspecies
regardless of whether critical habitat is designated for these lands.
The analytical requirements to support a jeopardy determination on
excluded lands are similar, but not identical, to the requirements in
an analysis for an adverse modification determination on lands
designated as critical habitat. However, the additional conservation
value that could be attained through the adverse modification analysis
for critical habitat under section 7 would likely not be significant,
and would be triggered only in the event of a Federal action.
Another benefit of including lands in a critical habitat
designation is that it serves to educate landowners, State and local
governments, and the public regarding the potential conservation value
of an area. This helps focus and promote conservation efforts by other
parties by identifying areas of high conservation value for the
streaked horned lark. The designation of critical habitat at airports
would highlight the stable habitats that have been unintentionally
created on non-Federal airport lands, and which are known to be used by
streaked horned larks as breeding and wintering habitats. However,
airport managers are already aware of the presence of the streaked
horned lark, and some airports have already incorporated management for
the streaked horned lark into their operating plans (for example,
Olympia Regional Airport; see Benefits of Exclusion-Non-Federal
Airports, below); this existing knowledge reduces the benefits of
including these non-Federal airport lands in the critical habitat
designation. Since airport managers are already aware of the presence
of the streaked horned lark on their lands, and in some cases existing
management already benefits the streaked horned lark and would not be
altered by the designation of critical habitat, we believe the
potential educational benefit of critical on non-Federal airports will
be extremely limited.
The Service has no intention of promoting increased populations of
streaked horned larks on airports as part of the long-term recovery and
conservation strategy for the subspecies. Although non-Federal airports
inadvertently provide suitable habitat for streaked horned larks, we
consider airport habitats to be of relatively low conservation value
over the long term. Our conservation strategy for the
[[Page 61550]]
streaked horned lark will focus on the restoration and management of
natural habitats for the subspecies, free of the risks and disturbance
associated with air traffic; the designation of critical habitat on
airports would thus run counter to our overall conservation strategy
for the streaked horned lark. Therefore, while we find some benefits of
including non-Federal airport lands in the designation of critical
habitat for the streaked horned lark, we find these benefits are
reduced due to the known presence of streaked horned larks on their
lands and existing management already benefiting the streaked horned
lark. As described above, we believe the potential educational benefit
of critical habitat on non-Federal airports will therefore be extremely
limited. In addition, the benefits of including non-Federal airport
lands are further reduced because all of these lands are presently
occupied by the streaked horned lark, therefore should a project having
a Federal nexus take place, section 7 consultation would occur under
the jeopardy standard-- including the consideration of potential
effects to habitat for the streaked horned lark--regardless of the
designation of critical habitat. Finally, the benefits to the streaked
horned lark of designating non-Federal airport lands as critical
habitat are relatively minimal because, for reasons described above, we
do not intend to focus conservation and recovery efforts on these lands
over the long term.
Benefits of Exclusion-Non-Federal Airports-- Compared to the
minimal benefits of including non-Federal airport lands in critical
habitat, the benefits of excluding non-Federal airport lands from
designated critical habitat are more substantial.
As mentioned above, managers of non-Federal airport lands occupied
by streaked horned larks are generally aware of the presence of the
subspecies, and in some cases airport managers have already developed
management plans that provide benefits to the streaked horned lark. The
exclusion of non-Federal airport lands from the designation of critical
habitat would allow us to foster a positive conservation partnership
with airport entities in the future, and encourage the development of
beneficial management plans such as that developed for the Olympia
Regional Airport in Washington. These conservation partnerships have
the potential to produce tangible conservation results for the streaked
horned lark as evidenced by the development of management plans that
consider the needs of streaked horned larks and other prairie-dependent
species. For example, the Olympia Regional Airport Master Plan (Airport
Master Plan) and Sensitive Species and Priority Habitats Inventory and
Management Plan that the Olympia Regional Airport is implementing will
provide long-term protection for the streaked horned lark, and serves
as a model that the Service will use in the development of partnership
agreements with other airports after the subspecies is listed.
Fostering these positive conservation partnerships is a significant
benefit of exclusion from critical habitat. Below we present specific
details of the conservation partnership with the Olympia Regional
Airport as a model that we will use in discussions with other non-
Federal airports in partnering for the conservation of the streaked
horned lark.
The conservation partnership developed between the Service, WDFW,
and the Olympia Regional Airport over many years has resulted in
positive actions to address and minimize impacts or potential conflicts
to prairie-dependent species, including the streaked horned lark, from
activities conducted on airport property. As evidence of the positive
benefits that have accrued from this partnership, and that could be
gained from the pursuit of other similar partnerships, the Port of
Olympia has agreed to protect the streaked horned lark at the Olympia
Regional Airport and to inventory, manage and maintain habitat for the
streaked horned lark and other prairie-dependent species on the
airport. The Airport Master Plan outlines State, county, and city
regulations and ordinances related to critical areas, as well as FAA
safety regulations and compliance responsibilities, and strategies for
the protection of State-listed and sensitive species while meeting the
needs of the airport as an Essential Public Facility (Port Of Olympia
2013, pp. 7-12). The June 2013 Update to the Airport Master Plan
includes commitments to follow recommendations provided by WDFW for the
protection of State-listed and sensitive species present on the
airport, including: (1) Minimizing the amount of impervious surfaces;
(2) maintaining and/or creating suitable habitat (sparsely vegetated
areas with annual and native grasses, less than 10 percent woody
shrubs, and high percent of bare ground); (3) avoiding activities such
as mowing, special events, and off-road driving and recreational
activities in or near the areas used by streaked horned larks during
the nesting season (March 15 to August 15); (4) working cooperatively
with the State on annual streaked horned lark surveys; and (5) avoiding
development or construction of permanent buildings within approximately
330 ft (100 m) of streaked horned lark nesting areas (Port of Olympia
2013, pp. 15-17). The sensitive species management plan that the
Olympia Regional Airport is implementing will provide long-term
protection for the streaked horned lark and can serve as an example
that other airports could use or follow in the development of
partnership agreements with the Service after the subspecies is listed.
Designating critical habitat on airports could negatively impact our
ability to pursue and develop such beneficial conservation partnerships
with other airports and would not provide any additional conservation
benefits to the subspecies; therefore we have determined that fostering
these positive conservation partnerships is a significant benefit of
exclusion from critical habitat.
An additional benefit of exclusion is signaling that we intend to
direct the focus of recovery efforts for the streaked horned lark on
other, more natural prairie or grassland habitats or habitats with more
compatible uses with greater long-term conservation value, and avoiding
the misperception that the Service wishes to concentrate on airports as
sites essential for the recovery of the streaked horned lark. Section
3(5)(A) of the Act defines ``critical habitat'' as the specific areas
within the geographical area occupied by the species at the time it is
listed on which are found those physical or biological features
essential to the conservation of the species. ``Conservation'' is
further defined in section 3(3) of the Act as the use of all methods
and procedures which are necessary to bring any endangered or
threatened species to the point at which the measures provided pursuant
to the Act are no longer necessary. These definitions clearly
demonstrate that the purpose of critical habitat designation is to
serve as locations of recovery efforts for listed species. However, as
noted above, streaked horned larks face a risk of mortality from
airstrikes as a result of occupying airport lands. Although airports
currently support some relatively large populations of the subspecies,
airports are clearly not ideal for conservation and recovery efforts
aimed at further increasing the abundance of streaked horned larks.
Recovery efforts would be more effectively concentrated on areas
capable of supporting long-term viable populations of streaked horned
larks
[[Page 61551]]
with the potential for increases in population size. Although airports
clearly provide an interim benefit to the subspecies (and will likely
continue to provide habitat for small populations), recovery will
require restoration and management of new sites that can sustain
increasing populations of streaked horned larks in the long term, in
locations that do not pose a heightened risk of mortality to streaked
horned larks. The Service does not intend to focus on increasing
populations of the streaked horned lark on airport lands as part of the
subspecies' long-term recovery strategy. The exclusion of non-Federal
airport lands would thus align with our long-term conservation strategy
that we are likely to develop for the streaked horned lark, and more
appropriately signal our intention to direct recovery efforts to the
restoration and maintenance of more natural habitats for the
subspecies; we consider this to be a significant benefit of exclusion
as well.
Benefits of Exclusion outweigh the Benefits of Inclusion-Non-
Federal Airports--The benefits of including non-Federal airport lands
in the designation are small. Because one of the primary threats to the
streaked horned lark is habitat loss and degradation, the consultation
process under section 7 of the Act for projects with a Federal nexus
will, in evaluating effects to the streaked horned lark, evaluate the
effects of the action on the conservation or functionality of the
habitat for the subspecies regardless of whether critical habitat is
designated for these lands. The analytical requirements to support a
jeopardy determination on excluded land are similar, but not identical,
to the requirements in an analysis for an adverse modification
determination on lands designated as critical habitat. Although not
specifically intended to provide for the conservation of the streaked
horned lark, management for aviation safety at airports already
inadvertently results in actions that create and maintain streaked
horned lark habitat, benefits that exceed the conservation benefits
afforded through section 7 consultation. Since designation as critical
habitat would not change these already positive management efforts, the
benefits of including these lands in critical habitat are small, and
are reduced by other considerations, as described below.
The educational benefit of critical habitat is minimal in this
case; since all non-Federal airport lands in question are occupied by
streaked horned larks, any potential educational benefit of critical
habitat is reduced by the fact that airport managers are already aware
of the presence of the subspecies and its habitat needs. In fact, in
some cases, airport managers have already incorporated conservation
provisions for streaked horned larks and other prairie species into
their management plans. Importantly, it is not the Service's intention
to focus on airport lands as essential sites for recovery; although
airports provide important interim habitat, they also carry an
associated risk of mortality to the birds through airstrikes, and
regulations requiring the minimization of wildlife hazards at airports
are not compatible with efforts to increase populations of birds in
these areas. The Service intends to focus long-term recovery efforts
for the streaked horned lark on other, more natural areas of prairie or
grassland habitat or habitat with more compatible land uses of higher
conservation value. The designation of non-Federal airport lands as
critical habitat would be at odds with our long-term recovery strategy
that we are likely to develop for the streaked horned lark, thereby
further reducing any benefit from including these lands in critical
habitat.
On the other hand, the benefits of exclusion are relatively
substantial. Excluding airports would allow the Service to develop
conservation partnerships with airport managers, and potentially result
in the implementation of management plans at airports designed to
benefit the conservation of the streaked horned lark. As we have seen
through the example set at the Olympia Regional Airport, airport
management plans have the potential to provide for significant
conservation and management of streaked horned larks, to help maintain
populations of this subspecies in the interim pending restoration of
more natural habitats with compatible uses to achieve recovery of this
subspecies. Exclusion of these lands from critical habitat will help
foster partnerships we have developed with airport entities such as the
Port of Olympia, which has developed an impressive management plan for
the benefit of the streaked horned lark and other prairie species.
Furthermore, this partnership may aid in fostering future cooperative
relationships with other airport entities in other locations for the
benefit of streaked horned larks.
Another significant benefit of exclusion is signaling our intention
to focus recovery efforts more appropriately on the restoration and
management of other, more natural habitats with compatible uses for
increasing populations of the streaked horned lark over the long term.
Streaked horned larks are at risk of mortality from airstrikes at
airports. Although airports may serve as interim habitat for the
streaked horned lark, the inclusion of airports in critical habitat
would be contrary to our long-term conservation strategy for the
subspecies. As we do not wish to create the impression that we consider
airport lands as sites essential for the recovery and conservation of
streaked horned larks, exclusion of these lands would benefit the
subspecies by directing recovery efforts to other natural areas with
greater long-term conservation value.
Based on our evaluation of the benefits of inclusion versus the
benefits of exclusion, we determine that the benefits of excluding non-
Federal airport lands from the designation of critical habitat for the
streaked horned lark outweigh the benefits of including these areas in
critical habitat. The Secretary is therefore exercising her discretion
under section 4(b)(2) of the Act to exclude the following airports from
critical habitat for the streaked horned lark:
(1) Sanderson Field in Unit 1--376 ac (152 ha).
(2) Olympia Airport in Unit 1-- 575 ac (233 ha).
(3) Portland International Airport and Broughton Beach in Unit 3--
431 ac (174 ha).
(4) McMinnville Municipal Airport in Unit 4--600 ac (243 ha).
(5) Salem Municipal Airport in Unit 4--534 ac (216 ha).
(6) Corvallis Municipal Airport in Unit 4--1,103 ac (446 ha).
(7) Eugene Airport in Unit 4--313 ac (126 ha).
A small portion of land proposed for critical habitat is adjacent
to Portland International Airport at Broughton Beach on the Columbia
River; this parcel is owned by Metro (the regional government). The
concerns discussed above also apply to this portion of the Portland
International Airport; therefore, we are also excluding Broughton Beach
from critical habitat designation. The total acreage of the exclusions
described above is approximately 3,932 ac (1,590 ha).
Occupied lands excluded under section 4(b)(2) of the Act are still
considered essential to the conservation of the species. Such areas
were proposed as critical habitat because they provide the essential
physical or biological features to support the life history of the
streaked horned lark. Exclusion should never be interpreted as meaning
that such areas are unimportant to the conservation of the species.
Exclusion is based upon a determination by the Secretary that the
benefit of excluding these essential
[[Page 61552]]
areas outweighs the benefit of including them in critical habitat.
Exclusion Will Not Result in the Extinction of the Species--Non-
Federal Airports--Exclusion will not result in extinction of the
streaked horned lark because each of the airports proposed as critical
habitat is occupied by the subspecies; therefore Federal agency actions
that require section 7 consultation will be required to meet the
jeopardy standard for any actions that may affect the streaked horned
lark at those sites. This consultation requirement will safeguard the
streaked horned lark from extinction, regardless of the area's
designation as critical habitat.
Tribal Lands--Exclusions Under Section 4(b)(2) of the Act
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; and the relevant
provision of the Departmental Manual of the Department of the Interior
(512 DM 2), we coordinate with federally-recognized tribes on a
government-to-government basis. Further, Secretarial Order 3206,
``American Indian Tribal Rights, Federal-Tribal Trust Responsibilities,
and the Endangered Species Act'' (1997) states that (1) critical
habitat shall not be designated in areas that may impact tribal trust
resources, may impact tribally-owned fee lands, or are used to exercise
tribal rights unless it is determined essential to conserve a listed
species; and (2) in designating critical habitat, the Service shall
evaluate and document the extent to which the conservation needs of the
listed species can be achieved by limiting the designation to other
lands.
We proposed 182 ac (74 ha) of critical habitat in an area currently
occupied by the streaked horned lark and that provides one or more of
the essential physical or biological features for the subspecies on
lands reserved for the Shoalwater Bay Tribe (included in Unit 3--
Shoalwater Spit); these lands are directly adjacent to other occupied
streaked horned lark habitat along the Washington Coast. Because the
streaked horned lark moves between coastal sites and sites on the
Columbia River Islands, based on site condition and season,
connectivity among and within these habitats is essential for long-term
persistence and recovery of streaked horned larks. Beach and intertidal
habitat on and adjacent to the Shoalwater Bay Indian Reservation were
determined to be important to maintain nesting, foraging, and wintering
habitat, and to maintain connectivity between occupied breeding sites
on the Washington Coast. The longstanding and distinctive relationship
between Federal and tribal governments is defined by treaties,
statutes, executive orders, judicial decisions, and agreements, which
differentiate tribal governments from the other entities that deal
with, or are affected by, the Federal government.
This relationship has given rise to a special Federal trust
responsibility involving the legal responsibilities and obligations of
the United States toward Native American tribes and the application of
fiduciary standards of due care with respect to Indian lands, tribal
trust resources, and the exercise of tribal rights. Accordingly, we are
obligated to consult with tribes based on their unique relationship
with the Federal government. In addition, we evaluate tribes' past and
ongoing efforts for species conservation and the benefits of including
or excluding tribal lands in the designation under section 4(b)(2) of
the Act.
We contacted the Shoalwater Bay Tribe and discussed their ongoing
and future management strategies for the streaked horned lark. During
the revision of critical habitat for the Pacific Coast population of
the western snowy plover, we received a letter from the Tribe
describing ongoing tribal management, conservation efforts, and
coordination with the Corps, WDFW, and the Service to protect habitat
for snowy plover and other coastal species important to the Tribe,
including the streaked horned lark. The Tribe coordinates closely with
the Service, Corps, and WDFW on western snowy plover and streaked
horned lark surveys in conjunction with their coastal restoration
project. In April, 2013, the Shoalwater Bay Tribe submitted a comment
letter stating that they wish to be excluded from critical habitat
designation for the streaked horned lark (or any other species). The
Tribe is working with their legal counsel and State and Federal
agencies (Corps, WDFW, Service) in partnership on the development of an
Ecological Restoration Plan for the coastal beaches and tidelands on
the reservation.
We determined that approximately 182 ac (74 ha) of lands owned by,
or under the jurisdiction of, the Tribe contained biological features
essential to the conservation of the streaked horned lark, and
therefore meet the definition of critical habitat under the Act. These
tribal lands are located in the subunit identified as Shoalwater Spit
of Unit 3 (the Washington Coast and Columbia River Islands). In making
our final decision with regard to the designation of critical habitat
for the streaked horned lark on these tribal lands, we considered
several factors, including Secretarial Order 3206, Executive Order
13175, the President's memorandum on ``Government-to-Government
Relations with Native American Tribal Governments'' (59 FR 22951; April
29, 1994), conservation measures in place on these lands that may
benefit the streaked horned lark, economic impacts to tribes, our
relationship with the Tribe, and impacts to current and future
partnerships with the Shoalwater Bay Tribe and other tribes we
coordinate with on endangered and threatened species issues. Under
section 4(b)(2) of the Act, the Secretary is exercising her discretion
to exclude approximately 182 ac (74 ha) of land composed entirely of
reservation lands. We further exclude from this final critical habitat
designation lands that develop by accretion, which we anticipate may
become reservation lands in the near future. As described in our
analysis below, this conclusion was reached after considering the
relevant impacts of specifying this area as critical habitat.
Shoalwater Bay Tribe
The Shoalwater Bay Tribe (Tribe) is a Federally-recognized Native
American tribe with a relatively small (approximately one square mile)
reservation in Pacific County, Washington. Lands within the Shoalwater
Bay Indian Reservation boundary include upland forested terrestrial
habitats, a small residential and commercial area, and coastal marine
habitats. Critical habitat for the streaked horned lark was proposed in
the portion of the reservation with coastal beaches. Through our
ongoing coordination with the Tribe, we have established a partnership
that has benefitted natural resource management on tribal lands. For
our section 4(b)(2) balancing analysis we considered our partnership
with the Tribe in our analysis of the benefits of including and
excluding those lands under the sovereign control of the Tribe that met
the definition of critical habitat.
Benefits of Inclusion--Shoalwater Bay Tribe--The principal benefit
of any designated critical habitat is that Federal activities will
require section 7 consultations to ensure that adequate protection is
provided to avoid adverse modification or destruction of critical
habitat. This would provide an additional benefit beyond that provided
under the jeopardy standard. In evaluating project effects on critical
habitat, the Service must be satisfied that the PCEs and, therefore,
the
[[Page 61553]]
essential features of the critical habitat likely will not be altered
or destroyed by proposed activities to the extent that the conservation
of the affected species would be appreciably reduced. If critical
habitat were designated in areas of unoccupied habitat or currently
occupied areas subsequently become unoccupied, different outcomes or
requirements are also likely because effects to unoccupied areas of
critical habitat are not likely to trigger the need for a jeopardy
analysis.
In Sierra Club v. Fish and Wildlife Service, 245 F.3d 434 (5th Cir.
2001), the Fifth Circuit Court of Appeals stated that the
identification of habitat essential to the conservation of the species
can provide informational benefits to the public, State and local
governments, scientific organizations, and Federal agencies. The court
also noted that critical habitat designation may focus and heighten
public awareness of the plight of listed species and their habitats.
Designation of critical habitat may contribute to conservation efforts
by other parties by delineating areas of high conservation value for
streaked horned lark. While we believe this educational outcome is
important for streaked horned lark conservation, we believe it has
already been achieved to some extent through the existing management,
education, and public outreach efforts carried out by the Tribe.
Designation of critical habitat on the aforementioned tribal lands
would simply affirm the recognized conservation value of these lands,
which is already widely accepted by conservationists, public agencies,
and most of the public.
The principal benefit of including an area in a critical habitat
designation is the requirement for Federal agencies to ensure that
actions they fund, authorize, or carry out are not likely to result in
the destruction or adverse modification of any designated critical
habitat, the regulatory standard of section 7(a)(2) of the Act under
which consultation is completed. Federal agencies must also consult
with us on actions that may affect a listed species and refrain from
undertaking actions that are likely to jeopardize the continued
existence of such species. The analysis of effects of a proposed
project on critical habitat is separate and different from that of the
effects of a proposed project on the species itself. The jeopardy
analysis evaluates the action's impact to survival and recovery of the
species, while the destruction or adverse modification analysis
evaluates the action's effects to the designated habitat's contribution
to conservation. Therefore, the difference in outcomes of these two
analyses represents the regulatory benefit of critical habitat. This
will, in many instances, lead to different results and different
regulatory requirements. Thus, critical habitat designations may
provide greater benefits to the recovery of a species than listing
alone would do. However, for some species, and in some locations, the
outcome of these analyses will be similar, because effects to habitat
will often also result in effects to the species. The tribal lands
considered for exclusion are occupied by the streaked horned lark and
will be subject to the consultation requirements of the Act in the
future. Although a jeopardy and adverse modification analysis must
satisfy two different standards, because any modifications to proposed
actions resulting from a section 7 consultation to minimize or avoid
impacts to the streaked horned lark will be habitat-based, it is not
possible to differentiate any measures implemented solely to minimize
impacts to the critical habitat from those implemented to minimize
impacts to the streaked horned lark. Therefore, in the case of the
streaked horned lark, we believe the benefits of critical habitat
designation are very similar to the benefits of listing, and in some
respects would be indistinguishable from the benefits of listing.
Public education is often cited as another possible benefit of
including lands in critical habitat as it may help focus conservation
efforts on areas of high value for certain species. Partnership efforts
with the Shoalwater Bay Tribe to conserve the streaked horned lark and
other coastal species of concern have resulted in heightened awareness
about the subspecies. However, we believe there is little, if any,
educational benefit attributable to critical habitat beyond those
achieved from listing of the streaked horned lark under the Act, and
the Tribe's efforts. The Shoalwater Bay Tribe coordinates regularly
with the WDFW on annual surveys for the streaked horned lark and has
partnered with the Service (Willapa National Wildlife Refuge and
Ecological Services) to control nonnative or invasive species and
restore habitat for the streaked horned lark and other coastal species
on the reservation. Service coordination includes attending meetings
with tribal resource staff to discuss ongoing projects, management
plans, and other issues that arise. We believe our continuing
coordination with the Shoalwater Bay Tribe will further promote
awareness of the subspecies and its conservation needs, and will
facilitate refinements to the existing Fish and Wildlife Codes and
Title 23 of the Tribe's Environmental Ordinances that protect natural
resources on the reservation.
We believe existing tribal regulations, including the 2001 Tribal
Environmental Codes that protect the saltmarsh and sand spit as natural
areas, will ensure that any land use actions, including those funded,
authorized, or carried out by Federal agencies, are not likely to
result in the destruction or adverse modification of all lands
considered for exclusion. The Tribe coordinates with the Service on all
actions that have the potential to affect habitat for listed species on
the reservation, including the streaked horned lark. In 2003, the
Service completed a Planning Aid Letter, and in 2006, we wrote a Fish
and Wildlife Coordination Act Report for the Corps (Shoalwater Bay
Tribe is the project sponsor) on the Shoalwater Coastal Erosion
Project, which entails beach nourishment along the sand spit used by
the streaked horned lark. We completed a section 7 consultation for
this project in 2012, which covered effects to both the streaked horned
lark and western snowy plover. Due to construction delays, the project
was not completed and is still ongoing. We are currently completing
formal conferencing for potential effects to the streaked horned lark
and proposed critical habitat related to this project. The Service
coordinated with the Tribe and the Corps on the project design and will
provided technical input and recommendations on the planting plan and
long-term vegetation management on the dune. The Tribe is actively
working with the State and Federal agencies in implementation of the
project to avoid impacts to the streaked horned lark and its nesting
habitat. The project is designed to restore the barrier spit that has
been actively eroding over the decades. The spit provides protection
from coastal storms and high winter waves for the Shoalwater Bay Indian
Reservation.
Surveys for both the western snowy plover and streaked horned lark
have been conducted by WDFW and the Tribe on the reservation and
adjacent lands since 2000. Surveys became more intensive in 2004 and
later years (to present) when both the western snowy plover and
streaked horned lark were documented nesting on tribal lands on
Shoalwater spit. Although they may not nest there every year, male
streaked horned larks were heard singing or have been seen on
Shoalwater Spit during the nesting seasons of 2004, 2008, 2009, 2012,
and 2013. The Tribe has played an active role in surveying for and
protecting habitat for the streaked
[[Page 61554]]
horned lark. In emails and comments sent to the Service on August 31,
2011, and April 3, 2013, the Tribe confirmed that they will continue to
use their existing regulatory structure to provide habitat protection
for coastal species (including the streaked horned lark) and ``keep
trespassers off those areas considered most important to the species.''
The Corps worked closely with the WDFW and the Service in the
development and implementation of a species protection plan for the
western snowy plover and streaked horned lark habitat as part of the
erosion control project. The Tribe, WDFW, and Service are coordinating
with the Corps on the development of an Ecological Restoration Plan for
the Shoalwater Bay Tribe which will include a planting and long-term
vegetation management plan for the dune and restoration of the adjacent
tidelands.
Any potential impacts to the streaked horned lark from future
proposed activities on tribal trust reservation lands will be addressed
through a section 7 consultation using the jeopardy standard, and such
activities would also be subject to the take prohibitions under section
9 of the Act. As a result, we believe the regulatory benefits of
critical habitat designation on tribal trust reservation land would
largely be redundant with the combined benefits of listing and existing
tribal regulations.
The designation of critical habitat for the streaked horned lark
may strengthen or reinforce some Federal laws, such as the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) or the Clean
Water Act (33 U.S.C. 1251 et seq.). These laws analyze the potential
for projects to significantly affect the environment. Critical habitat
may signal the presence of sensitive habitat that could otherwise be
missed in the review process for these other environmental law;
however, the listing process and consultations (which includes
conferencing on effects to critical habitat for the streaked horned
lark off reservation lands) that have already occurred and/or are
ongoing will provide this benefit. Therefore, in this case we view this
benefit as redundant with the benefit the species will receive from
listing under the Act.
In summary, we believe that designating critical habitat on the
Shoalwater Bay Indian Reservation will provide only minimal additional
benefits for the streaked horned lark. Projects on these lands with a
Federal nexus (e.g., funded, authorized, or carried out by Federal
agencies, such as the U.S. Army Corps of Engineers) will require
section 7 consultation with the Service (regardless of critical habitat
designation) where the habitat is occupied or the species may otherwise
be affected. Furthermore, a high level of protection is already
provided on Shoalwater Bay Indian Reservation lands that meet the
definition of critical habitat by existing conservation, regulations,
and management. Ongoing coordination between the Service and the Tribe
has already raised the level of awareness about the subspecies, and we
believe our continued coordination with the Tribe will facilitate
development of species-specific management actions for these lands to
address the conservation of the streaked horned lark.
Benefits of Exclusion--Shoalwater Bay Tribe--Under Secretarial
Order 3206, American Indian Tribal Rights, Federal-Tribal Trust
Responsibilities, and the Act, we recognize that we must carry out our
responsibilities under the Act in a manner that harmonizes the Federal
trust responsibility to tribes and tribal sovereignty while striving to
ensure that tribes do not bear a disproportionate burden for the
conservation of listed species, so as to avoid or minimize the
potential for conflict and confrontation. In accordance with the
Presidential memoranda of April 29, 1994, and November 9, 2009, we
believe that, to the maximum extent possible, tribes are the
appropriate governmental entities to manage their lands and tribal
trust resources, and that we are responsible for strengthening
government-to-government relationships with tribes. Federal regulation
through critical habitat designation will adversely affect the tribal
working relationships we now have and which we are strengthening
throughout the United States. Maintaining positive working
relationships with tribes is key to implementing natural resource
programs of mutual interest, including habitat conservation planning
efforts. In light of the above-mentioned orders and for a variety of
other reasons described in their comment letters and communications,
critical habitat designation is typically viewed by tribes as an
unwarranted and unwanted intrusion into tribal self-governance.
In the case of proposed critical habitat for the streaked horned
lark (77 FR 61937; October 11, 2012), the Shoalwater Bay Tribe has
requested to ``remain excluded from any critical habitat designation.''
In their comments sent to the Service on April 3, 2013, the Tribe
stated that it is their goal to ``not only protect existing habitat for
native (coastal) species but to also increase and improve habitat'' and
to ``develop strategies for addressing threatened species and their
habitat'' on tribal lands. In their comments submitted during revisions
of critical habitat for the western snowy plover, the Tribe ``continues
to demonstrate its desire to protect threatened and/or endangered
species through its management and stewardship capabilities'' without
``externally defined designated critical habitat designations.'' The
Tribe stated that they wish to make ``their own determinations
regarding the Reservation and tribal trust resources'' and we note that
the Tribe has been able to provide for the streaked horned lark and
steps are being taken to continue that effort in the most effective way
possible. The Tribe has been working closely with the Willapa National
Wildlife Refuge for several years on collection, propagation, and
reintroduction of the native pink sand verbena (Abronia umbellata) and
is propagating this species at their greenhouse on the reservation.
This native plant has been extirpated in Washington and was recently
rediscovered on the refuge. Efforts to reintroduce this species along
coastal beaches that are currently occupied by the streaked horned lark
(including the refuge and tribal lands) have been successful and are
ongoing projects. The commitment by the Tribe to restore habitat for
this native plant and efforts to control invasive species such as
smooth cordgrass (Spartina alterniflora) supports their commitment to
protect habitat for streaked horned lark and strengthens the ongoing
partnership with the Service. In their comments to the Service on the
proposed rule, the Tribe indicated they would use their existing
regulations to protect streaked horned lark and its habitat. These
communications clearly indicate that designation of tribal trust
reservation lands as critical habitat for the streaked horned lark
would impact future conservation partnership opportunities with the
Tribe. Therefore, a critical habitat designation could potentially
damage our relationship with the Shoalwater Bay Tribe.
We believe significant benefits would be realized by excluding
lands managed by the Shoalwater Bay Indian Tribe from critical habitat.
These benefits include:
(1) Continuing and strengthening of our effective relationship with
the tribe to promote conservation of the streaked horned lark and its
habitat; and
(2) Allowing continued meaningful collaboration and cooperation in
working toward recovering this subspecies, including conservation
actions that might not otherwise occur.
[[Page 61555]]
Because the Tribe is the entity that enforces protective
regulations on tribal trust reservation land, and we have a working
relationship with them, we believe exclusion of these lands will yield
a significant partnership benefit. We will continue to work
cooperatively with the Tribe on efforts to conserve the streaked horned
lark. Therefore, excluding these lands from critical habitat provides
the significant benefit of maintaining and strengthening our existing
conservation partnerships and the potential of fostering new tribal
partnerships.
Benefits of Exclusion Outweigh Benefits of Inclusion--Shoalwater
Bay Indian Tribe--Based on the above considerations and consistent with
the direction provided in section 4(b)(2) of the Act, the Service has
determined that the benefits of excluding the above tribal lands
outweigh the benefits of including them as critical habitat. This
conclusion is based on the following factors. It is possible, although
unlikely, that Federal actions will be proposed that would be likely to
destroy or adversely modify the habitat proposed as critical within the
area governed by the Tribe. If such a project were proposed, due to the
specific way in which jeopardy and adverse modification are analyzed
for the streaked horned lark, discussed in detail earlier in this
document, it would likely also jeopardize the continued existence of
the subspecies. Few additional benefits are provided by including these
tribal lands in this critical habitat designation beyond what will be
achieved through the implementation of the existing tribal management
or conservation plans. In addition, we expect that the benefit of
informing the public of the importance of this area to streaked horned
lark conservation would be low.
We do not believe that inclusion of tribal lands will significantly
improve habitat protections for the streaked horned lark beyond what is
already provided for in the Tribe's own protective policies and
practices, discussed below.
The Tribe is working closely with the Corps and the Federal and
State resource agencies on the development of an Ecological Restoration
Plan for the Shoalwater Bay Tribe and have provided information
detailing how they are addressing the habitat needs of the streaked
horned lark on their lands and they are fully aware of the conservation
value of their lands for many coastal species of concern. There are
several benefits to excluding tribal lands. The long-standing and
distinctive relationship between the Federal and tribal governments is
defined by treaties, statutes, executive orders, judicial decisions,
and agreements, which differentiate tribal governments from the other
entities that deal with, or are affected by, the Federal government.
This relationship has given rise to a special Federal trust
responsibility involving the legal responsibilities and obligations of
the United States toward Indian Tribes and the application of fiduciary
standards of due care with respect to Indian lands, tribal trust
resources, and the exercise of tribal rights. Under these authorities,
Indian lands are recognized as unique and have been retained by Indian
Tribes or have been set aside for tribal use. These lands are managed
by Indian Tribes in accordance with tribal goals and objectives within
the framework of applicable treaties and laws.
Tribal lands are currently being managed on a voluntary basis in
cooperation with the Service and others to conserve the streaked horned
lark and achieve important conservation goals. We believe the streaked
horned lark benefits from the Tribe's voluntary management actions due
to their long-standing and broad application to tribal management
decisions. Tribal cooperation and support is required to continue
cooperative scientific efforts, to promote the recovery of the streaked
horned lark, and to implement proactive conservation actions. This need
for the tribal cooperation is especially acute because, in some cases,
populations exist only on areas of tribal management or only on tribal
lands. Future conservation efforts in this area require the continued
cooperation and support of the Tribe. Exclusion of tribal lands from
the critical habitat designation will help us maintain and improve our
partnership with the Tribe by formally recognizing their positive
contributions to streaked horned lark recovery, and by streamlining or
reducing unnecessary regulatory oversight.
Given the cooperative relationship between the Shoalwater Bay Tribe
and the Service, and all of the conservation benefits taken together,
we believe the additional regulatory and educational benefits of
including the tribal lands as critical habitat are relatively small.
The designation of critical habitat can serve to educate the public
regarding the potential conservation value of an area, but this goal is
already being accomplished through the identification of these areas in
the tribal management planning, development of tribal Fish and Wildlife
Codes, and through their outreach efforts.
Because of the ongoing relationship between the Service and the
Shoalwater Bay Tribe through a variety of forums, we find the benefits
of these coordination efforts to be greater than the benefits of
applying the Act's section 7 consultations for critical habitat to
Federal activities on tribal lands. Based upon our consultations with
the Tribes, we believe that designation of Indian lands as critical
habitat would adversely impact our working relationship and the
benefits resulting from this relationship.
In contrast, although the benefits of encouraging participation in
tribal management plans, and, more broadly, helping to foster
cooperative conservation are indirect, enthusiastic tribal
participation and an atmosphere of cooperation are crucial to the long-
term effectiveness of the endangered species program. Also, we have
concluded that the Tribe's voluntary conservation efforts will provide
tangible conservation benefits that will reduce the likelihood of
extinction and increase the likelihood for streaked horned lark
recovery. Therefore, we assign great weight to these benefits of
exclusion. To the extent that there are regulatory benefits of
including tribal lands in critical habitat, there would be associated
costs that could be avoided by excluding the area from designation. As
we expect the regulatory benefits to be low, we likewise give weight to
avoidance of those associated costs, as well as the additional
transaction costs related to section 7 compliance.
We reviewed and evaluated the benefits of inclusion and the
benefits of exclusion of Shoalwater Bay Tribe tribal trust reservation
lands as critical habitat for the streaked horned lark. We believe
past, present, and future coordination with the Shoalwater Bay Tribe
has provided and will continue to provide streaked horned lark habitat
conservation needs on tribal lands, such that there would be no
additional benefit from designation of critical habitat. Further,
because any potential impacts to the streaked horned lark from future
projects will be addressed through a section 7 consultation with us
under the jeopardy standard, we believe critical habitat designation on
the Shoalwater Bay Indian Reservation would largely be redundant with
the combined benefits of listing and existing tribal regulations and
management. Therefore, the benefits of designating critical habitat on
tribal trust reservation lands are not significant.
On the other hand, the benefits of excluding the Shoalwater Bay
Indian Reservation from critical habitat are significant. Exclusion of
these lands from critical habitat will help preserve and strengthen the
conservation
[[Page 61556]]
partnership we have developed with the Tribe and will foster future
partnerships and development of management plans; whereas inclusion
will negatively impact our relationships with the Tribe and other
tribes. We are committed to working with the Shoalwater Bay Tribe to
further the conservation of the streaked horned lark and other
endangered and threatened species on the reservation. The Tribe will
continue to use their existing regulatory structure to protect the
streaked horned lark and its habitat. The Tribe continues to provide
for indirect conservation of streaked horned lark habitat by
implementing conservation measures for other coastal species (such as,
the pink sand verbena) that have the same habitat requirements.
Therefore, in consideration of the relevant impact to our partnership
and our government-to-government relationship with the Shoalwater Bay
Indian Tribe, and the ongoing conservation management practices of the
Tribe and our current and future conservation partnerships with them,
we determined the significant benefits of exclusion outweigh the
benefits of inclusion in the critical habitat designation.
In summary, we find that excluding the Shoalwater Bay Tribe tribal
trust reservation lands from this revised final critical habitat will
preserve our partnership and may foster future habitat management and
species conservation plans with the Tribe now and in the future. These
partnership benefits are significant and outweigh the minimal
additional regulatory benefits of including these lands in final
critical habitat for the streaked horned lark.
Exclusion Will Not Result in Extinction of the Species--Shoalwater
Bay Tribe--We determined that the exclusion of 182 ac (74 ha) of tribal
trust reservation lands from the designation of streaked horned lark
critical habitat will not result in extinction of the subspecies. The
jeopardy standard of section 7 of the Act and routine implementation of
conservation measures through the section 7 process due to streaked
horned lark occupancy and protection provided by under Title 23 of the
Tribal Environmental Ordinances and their Ecosystem Restoration Plan
provide assurances that this subspecies will not go extinct as a result
of excluding these lands from the critical habitat designation.
Therefore, based on the above discussion the Secretary is exercising
her discretion to exclude approximately 182 ac (74 ha) of tribal trust
reservation lands managed by the Shoalwater Bay Tribe from this final
critical habitat designation.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. The Office
of Information and Regulatory Affairs 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
(SBREFA) of 1996 (5 U.S.C 801 et seq.), whenever an agency must publish
a notice of rulemaking for any proposed or final rule, it must prepare
and make available for public comment a regulatory flexibility analysis
that describes the effects of the rule on small entities (small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an 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. In this final rule, we are certifying that the critical
habitat designation for Taylor's checkerspot butterfly and streaked
horned lark will not have a significant economic impact on a
substantial number of small entities. The following discussion explains
our rationale.
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; as well as small businesses. Small businesses include
manufacturing and mining concerns with fewer than 500 employees,
wholesale trade entities with fewer than 100 employees, retail and
service businesses with less than $5 million in annual sales, general
and heavy construction businesses with less than $27.5 million in
annual business, special trade contractors doing less than $11.5
million in annual business, and agricultural businesses with annual
sales less than $750,000. To determine if potential economic impacts on
these small entities are significant, we consider the types of
activities that might trigger regulatory impacts under this rule, as
well as the 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.
To determine if the rule could significantly affect a substantial
number of small entities, we consider the number of small entities
affected within particular types of economic activities (e.g.,
airports, agriculture, recreation, and habitat management). We apply
the ``substantial number'' test individually to each industry to
determine if certification is appropriate. However, the SBREFA does not
explicitly define ``substantial number'' or ``significant economic
impact.'' Consequently, to assess whether a ``substantial number'' of
small entities is affected by this designation, this analysis considers
the relative number of small entities likely to be impacted in an area.
In some circumstances, especially with critical habitat designations of
limited extent, we may aggregate across all industries and consider
whether the total number of small entities affected is substantial. In
estimating the number of small entities potentially affected, we also
consider whether their activities have any Federal involvement.
Designation of critical habitat only affects activities authorized,
funded, or carried out by Federal agencies. Some kinds of activities
are unlikely to have any Federal involvement and so will not be
affected by critical habitat designation. In areas where the species is
present, Federal agencies already are required to consult with us under
section 7 of the Act on activities they authorize, fund, or carry out
that may affect Taylor's checkerspot butterfly and streaked horned
lark. Federal agencies
[[Page 61557]]
also must consult with us if their activities may affect critical
habitat. Designation of critical habitat, therefore, could result in an
additional economic impact on small entities due to the requirement to
reinitiate consultation for ongoing Federal activities (see Application
of the ``Adverse Modification'' Standard).
In our final economic analysis (FEA) of the critical habitat
designation, we evaluated the potential economic effects on small
business entities resulting from conservation actions related to the
listings of Taylor's checkerspot butterfly, streaked horned lark, and
four subspecies of Mazama pocket gopher and the designation of critical
habitat. The analysis is based on the estimated impacts associated with
the rulemaking as described in Appendix A of the FEA (IEc 2013, pp. A-
1-A-11) and evaluates the potential for economic impacts related to:
Military activities; recreation and habitat management; airport
operations and agricultural activities; transportation, electricity
distribution and forestry activities; and dredging, gravel mining,
development, and other activities. The FEA determined that critical
habitat designation will not result in impacts to small entities for
the following activities (IEc 2013, p. A-4):
(1) Military activities. As the affected base, JBLM is a Federal
entity and it is, by definition, not small, and thus no impacts to
small entities are expected.
(2) Transportation. The impacts are limited to Washington State
Department of Transportation. As State agencies are, by definition, not
small, no impacts to small entities are expected related to
transportation.
(3) Electricity Distribution and Forestry Activities. The only
electricity distribution activity within the proposed critical habitat
is carried out by the Bonneville Power Administration (BPA), which is a
Federal entity and, therefore, is not considered small. As such, there
are no anticipated impacts to small entities related to BPA's
electricity distribution activities. No incremental costs are
anticipated for forestry activities and thus no impact to small
entities related to forestry is anticipated.
(4) Dredging. Dredging is conducted by the U.S. Army Corps of
Engineers, which is a Federal entity and is, by definition, not small,
and thus no impacts to small entities are expected.
Estimated incremental impacts that may be borne by small entities
are limited to the administrative costs of section 7 consultation
related to airport operations and agriculture as well as by recreation
and habitat restoration. Potential impacts on these sectors are
evaluated here:
Airport Operations and Agriculture. Chapter 3 of the FEA discuss
the potential for the critical habitat designations to affect airports
and agricultural activities. Overall, 214 consultations would be
expected in relation to operations at 7 airports over the next 20
years. Information on whether airports are large or small entities was
available for some airports and not for others. For the purposes of the
analysis, we made the conservative assumption that all airports within
the proposed critical habitat are small entities. These seven entities
represent 3 percent of the total small Other Airport Operations (NAICS
code 488119) entities within the proposed critical habitat. The cost
per entity, per consultation, to participate in forecast consultation
is approximately $875 to $8,750 in any given year. The full cost to a
third party of a single consultation is $875. If we assume that a
single entity participates in multiple consultations in a single year,
the administrative costs of such activity are likely to be less than 1
percent of annual revenues (IEc 2013, p. A-5).
We forecast two projects related to agriculture, one at Rock
Prairie and one on M-DAC farms, which may involve small entities.
Assuming that all agriculture and grazing impacts are borne by these
two small entities, this amounts to less than one affected entity per
year. The per entity impact, ranging from approximately $875 to $1,750,
represents less than 2 percent of annual revenues (IEc 2013, p. A-5).
Recreation and Habitat Management. A diverse group of Federal and
State agencies, county-level governments, and private nonprofit
organizations may be subject to the administrative burden of
consultations associated with recreation and habitat management.
However, of these, the Federal, State, and county-level governments are
not considered small entities. Therefore, there are three projects
within the proposed critical habitat that may involve private nonprofit
organizations that qualify as small entities--Wolf Haven International,
Whidbey/Camano Land Trust, and the Pacific Rim Institute for
Environmental Stewardship. Assuming that all recreation and habitat
restoration impacts are borne by these small private entities, this
amounts to less than one affected entity per year. The per entity
impact, ranging from approximately $875 to $2,625 in any given year,
represents less than 1 percent of annual revenues (IEc 2013, p. A-6).
Recreators at JBLM may incur unquantified losses in economic
surplus in the form of reduced or restricted recreational use of JBLM
lands proposed as critical habitat. However, because the recreators
leasing JBLM lands are individuals, not entities, we do not address
these impacts in this analysis.
In summary, we considered whether this designation will result in a
significant economic effect on a substantial number of small entities
(IEc 2013, p. A-7). Based on the above reasoning and currently
available information, we conclude that this rule will not result in a
significant economic impact on a substantial number of small entities.
Therefore, we are certifying that the designation of critical habitat
for the Taylor's checkerspot butterfly and streaked horned lark will
not have a significant economic impact on a substantial number of small
entities, and a 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. OMB has provided guidance for implementing this
Executive Order that outlines nine outcomes that may constitute ``a
significant adverse effect'' when compared to not taking the regulatory
action under consideration.
The economic analysis finds that none of these criteria is relevant
to this analysis. Thus, based on information in the economic analysis,
energy-related impacts associated with Taylor's checkerspot butterfly
and streaked horned lark conservation activities within critical
habitat are not expected. As such, the designation of critical habitat
is not expected 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.
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.''
[[Page 61558]]
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 will significantly or uniquely
affect small governments. 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.
Therefore, this rule does not place an enforceable duty upon State,
local, or Tribal governments, or on the private sector.
Consequently, we do not believe that the critical habitat
designation will significantly or uniquely affect small government
entities. As such, a Small Government Agency Plan is not required.
Takings--Executive Order 12630
In accordance with Executive Order 12630 (Government Actions and
Interference with Constitutionally Protected Private Property Rights),
we have analyzed the potential takings implications of designating
critical habitat for Taylor's checkerspot butterfly and streaked horned
lark in separate takings implications assessments. As discussed above,
the designation of critical habitat affects only Federal actions.
Although private parties that receive Federal funding, assistance, or
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. 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 incidental take permits to permit
actions that do require Federal funding or permits to go forward. The
takings implications assessment concludes that this designation of
critical habitat for Taylor's checkerspot butterfly and streaked horned
lark does not pose significant takings implications for lands within or
affected by the designation.
Federalism--Executive Order 13132
In accordance with Executive Order 13132 (Federalism), this rule
does not have significant Federalism effects. A federalism impact
summary 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 critical habitat designation
with appropriate State resource agencies in Washington and Oregon. We
received comments from WDFW and solicited, but did not receive,
comments from ODFW. We addressed the comments from WDFW in the Summary
of Comments and Recommendations section of this rule, and we have
incorporated informal comments and feedback from ODFW into this rule.
The designation of critical habitat in areas currently occupied by
Taylor's checkerspot butterfly and streaked horned lark imposes no
additional restrictions to those put in place by the subspecies'
listings and, therefore, has little incremental impact on State and
local governments and their activities. The designation of critical
habitat in areas currently unoccupied by Taylor's checkerspot butterfly
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 in that 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 of the habitat necessary to the conservation of the
species are specifically identified. This information does not alter
where and what federally sponsored activities may occur. However, it
may assist local governments in long-range planning (rather than having
them wait for case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) will 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
[[Page 61559]]
system and that it meets the applicable standards set forth in sections
3(a) and 3(b)(2) of the Order. We are 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 Taylor's checkerspot butterfly and streaked horned
lark. 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)
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.
In the proposed rule to designate critical habitat published in the
Federal Register on October 11, 2012 (77 FR 61938), we proposed to
designate about 661 ac (267 ha) of critical habitat for the streaked
horned lark in subunit 3-C Shoalwater/Graveyard Spit, of which about
182 ac (74 ha) was identified as within the Shoalwater Bay Indian
Reservation. These lands are occupied by the streaked horned lark and
meet our definition of critical habitat for the subspecies. We
indicated that we were considering exclusion of the Shoalwater Bay
tribal lands from the designation, due to the high degree of protection
already provided by the Tribe. We coordinated with the Tribe to better
understand their conservation management plans for this area, and
specifically for the streaked horned lark. After further review and
additional information provided by the Shoalwater Bay Tribe, the
Secretary determined that the benefits of excluding these tribal lands
outweigh the benefits of including them in critical habitat for the
streaked horned lark, and further concluded that such exclusion will
not result in the extinction of the subspecies. As a result, the
Secretary is exercising her discretion to exclude the 182 ac (74 ac) of
Shoalwater Bay Tribal lands from the final designation under section
4(b)(2) of the Act (for details, see the Exclusions section of this
document, above).
References Cited
A complete list of all references cited is available on the
Internet at http://www.regulations.gov and upon request from the
Service's Washington Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this rulemaking are the staff members of the
Washington and Oregon Fish and Wildlife Offices.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245, 100 Stat.
3500; unless otherwise noted.
0
2. Amend Sec. 17.95 by:
0
(a) In paragraph (b), adding an entry for ``Streaked horned lark
(Eremophila alpestris strigata)'' in the same order that this species
appears in the table in Sec. 17.11(h); and
0
(b) In paragraph (i), by adding an entry for ``Taylor's checkerspot
butterfly (Euphydryas editha taylori)'' in the same order that this
species appears in the table in Sec. 17.11(h).
The additions read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(b) Birds.
* * * * *
Streaked horned lark (Eremophila alpestris strigata)
(1) Critical habitat units are depicted for Grays Harbor, Pacific,
and Wahkiakum Counties in Washington, and Clatsop, Columbia, Marion,
Polk, and Benton Counties in Oregon, on the maps below.
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the conservation of the
streaked horned lark consist of areas having a minimum of 16 percent
bare ground that have sparse, low-stature vegetation composed primarily
of grasses and forbs less than 13 inches (33 centimeters) in height
found in:
(i) Large (300-acre (120-hectare)), flat (0-5 percent slope) areas
within a landscape context that provides visual access to open areas
such as open water or fields; or
(ii) Areas smaller than described in paragraph (2)(i) of this
entry, but that provide visual access to open areas such as open water
or fields.
(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
November 4, 2013.
(4) Critical habitat map units. Data layers defining map units were
created on 2010 aerial photography from U.S. Department of Agriculture,
National Agriculture Imagery Program base maps
[[Page 61560]]
using ArcMap (Environmental Systems Research Institute, Inc.), a
computer geographic information system (GIS) program. 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/wafwo), at http://www.regulations.gov at Docket No. FWS-R1-ES-2013-0009, and by
appointment at the Service's Washington Fish and Wildlife Office. 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.
(5) Index map of critical habitat units for the streaked horned
lark follows:
BILLING CODE 4310-55-P
[GRAPHIC] [TIFF OMITTED] TR03OC13.000
[[Page 61561]]
(6) Unit 3--Washington Coast and Columbia River Islands, Washington
and Oregon.
(i) Subunit 3-A: Damon Point/Oyhut, Washington. Map of Subunit 3-A
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.001
[[Page 61562]]
(ii) Subunit 3-B: Midway Beach, Washington. Map of Subunit 3-B
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.002
[[Page 61563]]
(iii) Subunit 3-C: Shoalwater, Washington. Map of Subunit 3-C
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.003
[[Page 61564]]
(iv) Subunit 3-D: Leadbetter Point, Washington. Map of Subunit 3-D
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.004
[[Page 61565]]
(v) Subunit 3-E: Rice Island, Oregon/Washington. Map of Subunit 3-E
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.005
[[Page 61566]]
(vi) Subunit 3-F: Miller Sands, Oregon. Map of Subunit 3-F follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.006
[[Page 61567]]
(vii) Subunit 3-G: Pillar Rock/Jim Crow Sands, Oregon. Map of
Subunit 3-G follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.007
[[Page 61568]]
(viii) Subunit 3-H: Welch Island, Oregon. Map of Subunit 3-H
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.008
[[Page 61569]]
(ix) Subunit 3-I: Tenasillahe Island, Oregon. Map of Subunit 3-I
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.009
[[Page 61570]]
(x) Subunit 3-J: Whites/Brown Island, Washington. Map of Subunit 3-
J follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.010
[[Page 61571]]
(xi) Subunit 3-K: Wallace Island, Oregon. Map of Subunit 3-K
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.011
[[Page 61572]]
(xii) Subunit 3-L: Crims Island, Oregon. Map of Subunit 3-L
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.012
[[Page 61573]]
(xiii) Subunit 3-M: Sandy Island, Oregon. Map of Subunit 3-M
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.013
[[Page 61574]]
(7) Unit 4--Willamette Valley, Oregon.
(i) Subunit 4-A: Baskett Slough NWR, Oregon. Map of Subunit 4-A
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.014
[[Page 61575]]
(ii) Subunit 4-B: Ankeny NWR, Oregon. Map of Subunit 4-B follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.015
[[Page 61576]]
(iii) Subunit 4-C: William L. Finley NWR, Oregon. Map of Subunit 4-
C follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.016
* * * * *
(i) Insects.
* * * * *
Taylor's Checkerspot Butterfly (Euphydryas editha taylori)
(1) Critical habitat units are depicted for Island, Clallam, and
Thurston Counties in Washington, and in Benton County in Oregon, on the
maps below.
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the conservation of the
Taylor's checkerspot butterfly consist of four components:
(i) Patches of early seral, short-statured, perennial bunchgrass
plant
[[Page 61577]]
communities composed of native grass and forb species in a diverse
topographic landscape ranging in size from less than 1 ac up to 100 ac
(0.4 to 40 ha) with little or no overstory forest vegetation that have
areas of bare soil for basking that contain:
(A) In Washington and Oregon, common bunchgrass species found on
northwest grasslands include Festuca roemeri (Roemer's fescue),
Danthonia californica (California oat grass), Koeleria cristata
(prairie Junegrass), Elymus glaucus (blue wild rye), Agrostis scabra
(rough bentgrass), and on cooler, high-elevation sites typical of
coastal bluffs and balds, Festuca rubra (red fescue).
(B) On moist grasslands found near the coast and in the Willamette
Valley, there may be Bromus sitchensis (Sitka brome) and Deschampsia
cespitosa (tufted hairgrass) in the mix of prairie grasses. Less
abundant forbs found on the grasslands include, but are not limited to,
Trifolium spp. (true clovers), narrow-leaved plantain (Plantago
lanceolata), harsh paintbrush (Castilleja hispida), Puget balsamroot
(Balsamorhiza deltoidea), woolly sunshine (Eriophyllum lanatum), nine-
leaved desert parsley (Lomatium triternatum), fine-leaved desert
parsley (Lomatium utriculatum), common camas (Camassia quamash), showy
fleabane (Erigeron speciosus), Canada thistle (Cirsium arvense), common
yarrow (Achillea millefolium), prairie lupine (Lupinus lepidus), and
sickle-keeled lupine (Lupinus albicaulis).
(ii) Primary larval host plants (narrow-leaved plantain and harsh
paintbrush) and at least one of the secondary annual larval host plants
(blue-eyed Mary (Collinsia parviflora), sea blush (Plectritis
congesta), or dwarf owl-clover (Triphysaria pusilla) or one of several
species of speedwell (marsh speedwell (Veronica scutella), American
speedwell (V. beccabunga var. americana), or thymeleaf speedwell (V.
serpyllifolia).
(iii) Adult nectar sources for feeding that include several species
found as part of the native (and one nonnative) species mix on
northwest grasslands, including: narrow-leaved plantain; harsh
paintbrush; Puget balsam root; woolly sunshine; nine-leaved desert
parsley; fine-leaved desert parsley or spring gold; common camas; showy
fleabane; Canada thistle; common yarrow; prairie lupine; sickle-keeled
lupine; and wild strawberry (Fragaria virginiana).
(iv) Aquatic features such as wetlands, springs, seeps, streams,
ponds, lakes, and puddles that provide moisture during periods of
drought, particularly late in the spring and early summer. These
features can be permanent, seasonal, or ephemeral.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, railroad tracks, and other paved
areas) and the land on which they are located existing within the legal
boundaries on November 4, 2013.
(4) Critical habitat map units. Data layers defining the map unit
were created on 2010 aerial photography from U.S. Department of
Agriculture, National Agriculture Imagery Program base maps using
ArcMap (Environmental Systems Research Institute, Inc.), a computer
geographic information system (GIS) program. 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/wafwo/), at http://www.regulations.gov at Docket No. FWS-R1-ES-2013-0009), and by
appointment at the Service's Washington Fish and Wildlife Office. 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 61578]]
(5) Index map of critical habitat units for the Taylor's
checkerspot butterfly follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.017
[[Page 61579]]
(6) Unit 1: South Sound, Washington.
(i) Subunit 1-A: Rocky Prairie, Washington. Map of Subunit 1-A
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.018
[[Page 61580]]
(ii) Subunit 1-B: Tenalquot Prairie, Washington. Map of Subunit 1-B
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.019
[[Page 61581]]
(iii) Subunit 1-C: Glacial Heritage, Washington. Map of Subunit 1-C
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.020
[[Page 61582]]
(iv) Subunit 1-D: Rock Prairie, Washington. Map of Subunit 1-D
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.021
[[Page 61583]]
(v) Subunit 1-E: Bald Hill, Washington. Map of Subunit 1-E follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.022
[[Page 61584]]
(7) Unit 2: Strait of Juan de Fuca, Washington.
(i) Subunit 2-A: Deception Pass, Washington. Map of Subunit 2-A
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.023
[[Page 61585]]
(ii) Subunit 2-B: Central Whidbey, Washington. Map of Subunit 2-B
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.024
[[Page 61586]]
(iii) Subunit 2-C: Elwha, Washington. Map of Subunit 2-C follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.025
[[Page 61587]]
(iv) Subunit 2-D: Sequim, Washington. Map of Subunit 2-D follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.026
[[Page 61588]]
(v) Subunit 2-E: Dungeness, Washington. Map of Subunit 2-E follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.027
[[Page 61589]]
(8) Unit 4: Willamette Valley, Oregon.
(i) Subunit 4-D: Fitton Green-Cardwell Hill, Oregon.
(ii) Map of Subunit 4-D follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.028
* * * * *
Dated: September 19, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-23552 Filed 10-2-13; 8:45 am]
BILLING CODE 4310-55-C