[Federal Register Volume 78, Number 208 (Monday, October 28, 2013)]
[Proposed Rules]
[Pages 64358-64384]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-24307]



[[Page 64357]]

Vol. 78

Monday,

No. 208

October 28, 2013

Part IV





 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; Threatened Status for 
the Bi-State Distinct Population Segment of Greater Sage-Grouse With 
Special Rule; Proposed Rule

  Federal Register / Vol. 78 , No. 208 / Monday, October 28, 2013 / 
Proposed Rules  

[[Page 64358]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2013-0072; 4500030113]
RIN 1018-AY10


Endangered and Threatened Wildlife and Plants; Threatened Status 
for the Bi-State Distinct Population Segment of Greater Sage-Grouse 
With Special Rule

AGENCY:  Fish and Wildlife Service, Interior.

ACTION:  Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
list the Bi-State distinct population segment (DPS) of greater sage-
grouse (Centrocercus urophasianus) as threatened under the Endangered 
Species Act of 1973, as amended (Act). We also propose a special rule 
under section 4(d) of the Act to provide for the conservation of the 
Bi-State DPS of greater sage-grouse. If finalized, the effect of this 
regulation would be to add the Bi-State DPS of greater sage-grouse to 
the List of Endangered and Threatened Wildlife, extend the Act's 
protections to this DPS, and establish a 4(d) special rule for the 
conservation of this DPS. Elsewhere in today's Federal Register, we 
propose to designate critical habitat under the Act for the Bi-State 
DPS of greater sage-grouse.

DATES: Comment Submission: We will accept comments received or 
postmarked on or before December 27, 2013. Comments submitted 
electronically using the Federal eRulemaking Portal (see ADDRESSES 
section, below) must be received by 11:59 p.m. Eastern Time on the 
closing date. We must receive requests for public hearings, in writing, 
at the address shown in FOR FURTHER INFORMATION CONTACT by December 12, 
2013.
    Public Meetings: Two public meetings will be held on this proposed 
rule: (1) November 5, 2013, from 4:00 p.m. to 6:00 p.m. (Pacific Time); 
and (2) November 6, 2013, from 1:00 p.m. to 3:00 p.m. (Pacific Time). 
People needing reasonable accommodations in order to attend and 
participate in the public hearing should contact Jeannie Stafford, 
Nevada Fish and Wildlife Office, as soon as possible (see FOR FURTHER 
INFORMATION CONTACT).

ADDRESSES: Comment Submission: You may submit comments by one of the 
following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal:
    http://www.regulations.gov. In the Search box, enter FWS-R8-ES-
2013-0072, which is the docket number for this rulemaking. Then, in the 
Search panel on the left side of the screen, under the Document Type 
heading, click on the Proposed Rules link to locate this document. You 
may submit a comment by clicking on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R8-ES-2013-0072; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Information Requested section below for more information).
    Public Meetings: The November 5, 2013, public meeting will be held 
at the Tri-County Fairgrounds, Home Economics Room, Sierra Street and 
Fair Drive, Bishop, CA 93514. The November 6, 2013, public meeting will 
be held at the Smith Valley Community Center, 2783 State Route 208, 
Wellington, NV 89444.

FOR FURTHER INFORMATION CONTACT: For general information on the 
proposed listing and information about the proposed listing specific to 
Nevada (Carson City, Douglas, Esmeralda, Lyon, and Mineral Counties), 
contact Edward D. Koch, State Supervisor, Nevada Fish and Wildlife 
Office, U.S. Fish and Wildlife Service, 1340 Financial Boulevard, Suite 
234, Reno, NV 89502; telephone 775-861-6300; facsimile 775-861-6301. 
For specific information related to California (Alpine, Inyo, and Mono 
Counties), contact Diane Noda, Field Supervisor, or Carl Benz, 
Assistant Field Supervisor, Ventura Fish and Wildlife Office, U.S. Fish 
and Wildlife Service, 2493 Portola Road, Suite B, Ventura, CA 93003; 
telephone 805-644-1766; facsimile 805-644-3958. 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 Act, if a species is 
determined to be an endangered or threatened species throughout all or 
a significant portion of its range, we are required to promptly publish 
a proposal in the Federal Register and make a determination on our 
proposal within 1 year. Listing a species as an endangered or 
threatened species can only be completed by issuing a rule.
    This rule proposes the listing of the Bi-State distinct population 
segment (DPS) of greater sage-grouse as a threatened species. The Bi-
State DPS is a candidate species for which we have on file sufficient 
information on biological vulnerability and threats to support 
preparation of a listing proposal, but for which development of a 
listing regulation had been precluded by other higher priority listing 
activities. This rule reassesses all available information regarding 
the status of and threats to the Bi-State DPS. This rule also proposed 
a special rule under section 4(d) of the Act to provide for the 
conservation of the Bi-State DPS. Elsewhere in today's Federal 
Register, we propose to designate critical habitat for the Bi-State DPS 
under the Act.
    The basis for our action. Under the Act, we can determine that a 
species is an endangered or threatened species based on any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
Disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. We have determined that threats that pose the most 
significant impacts to the Bi-State DPS currently and in the future are 
nonnative and native, invasive species (Factors A and E); wildfires and 
altered fire regime (Factors A and E); infrastructure (Factors A and 
E); grazing (Factors A, C, and E); and small population size and 
population structure (Factor E). Other threats that are impacting the 
Bi-State DPS to a lesser degree are urbanization and habitat conversion 
(Factor A); mining (Factors A and E); renewable energy development and 
associated infrastructure (Factors A and E); disease and predation 
(Factor B); climate change, including drought (Factors A and E); and 
recreation (Factors A and E). The existing regulatory mechanisms are 
inadequate to protect the Bi-State DPS from these threats (Factor D). 
The threats listed above are also acting cumulatively to further 
contribute to the challenges faced by several Bi-State DPS populations 
now and into the future.
    We are proposing a special rule. We are proposing to exempt from 
the Act's take prohibitions (at section 9) activities conducted 
pursuant to a comprehensive

[[Page 64359]]

conservation program that was developed by or in coordination with a 
State agency. Specifically, the proposed 4(d) special rule provides 
that any take of the Bi-State DPS incidental to agricultural activities 
is not a prohibited action under the Act if the activities are: (1) 
Included within either of two comprehensive conservation programs: the 
Natural Resources Conservation Service (NRCS) for private agricultural 
lands in connection with NRCS's Sage Grouse Initiative (SGI), or the 
Bi-State Local Area Working Group Action Plan; or (2) managed not by a 
formal SGI participant but are consistent with the SGI. If an activity 
resulting in take of the Bi-State DPS is prohibited under this 4(d) 
special rule, then the general prohibitions at 50 CFR 17.31 for 
threatened wildlife would apply, and we would require a permit pursuant 
to section 10 of the Act for such an activity, as specified in our 
regulations. Nothing in this proposed 4(d) special rule would affect 
the consultation requirements under section 7 of the Act. The intent of 
this special rule would be to increase support for the conservation of 
the Bi-State DPS and provide an incentive for continued management 
activities that benefit the Bi-State DPS and its habitat.
    We will seek peer review. We are seeking comments from 
knowledgeable individuals with scientific expertise to review our 
analysis of the best available science and application of that science 
and to provide any additional scientific information to improve this 
proposed rule. Because we will consider all comments and information we 
receive during the comment period, our final determination may differ 
from this proposal.

Information Requested

Public Comments

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Additionally, we intend to 
make a final determination on the 4(d) special rule concurrent with the 
final listing rule, if the result of our final listing determination 
concludes that threatened species status is appropriate. Therefore, we 
request comments or information from other concerned governmental 
agencies, Native American tribes, the scientific community, industry, 
or any other interested parties concerning this proposed listing rule 
and 4(d) special rule. We particularly seek comments concerning:
    (1) The Bi-State DPS's biology, distribution, population size and 
trend, including:
    (a) Habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the DPS, its 
habitat, or both.
    (2) The factors that are the basis for making a listing 
determination for a species under section 4(a) of the Act (16 U.S.C. 
1531 et seq.), which are:
    (a) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (b) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (c) Disease or predation;
    (d) The inadequacy of existing regulatory mechanisms; or
    (e) Other natural or manmade factors affecting its continued 
existence.
    (3) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this DPS and existing regulations that 
may be addressing those threats.
    (4) Additional information concerning the historical and current 
status, range, distribution, and population size of this species, 
including the locations of any additional leks or populations of this 
DPS.
    (5) Any information on the biological or ecological requirements of 
the DPS, and ongoing conservation measures for the DPS and its habitat.
    (6) Application of the Bi-State Action Plan of March 15, 2012, to 
our determination of status under section 4(a)(1) of the Act, 
particularly comments or information to help us assess the certainty 
that the plan will be effective in conserving the Bi-State DPS of 
greater sage-grouse and will be implemented.
    (7) Information concerning whether it would be appropriate to 
include in the 4(d) special rule a provision for take of the Bi-State 
DPS of greater sage-grouse in accordance with applicable State law for 
educational or scientific purposes, the enhancement of propagation or 
survival of the DPS, zoological exhibition, and other conservation 
purposes consistent with the Act.
    (8) Whether the Service should include in the scope of the proposed 
4(d) special rule the incidental take of sage-grouse within the Bi-
State DPS if the take results from other agricultural activities not 
subject to the SGI or the Bi-state Action Plan, if those activities are 
compatible with the conservation of the DPS.
    (9) Whether the Service should expand the scope of this 4(d) 
special rule to allow incidental take of sage-grouse within the Bi-
State DPS if the take results from implementation of the SGI or Bi-
State Action Plan by a person or entity other than a State agency or 
their agent(s).
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Please note that submissions merely stating support for or 
opposition to the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act directs that 
determinations as to whether any species is a threatened or endangered 
species must be made ``solely on the basis of the best scientific and 
commercial data available.''
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We request 
that you send comments only by the methods described in the ADDRESSES 
section.
    If you submit information via http://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the Web site. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on http://www.regulations.gov. 
Please include sufficient information with your comments to allow us to 
verify any scientific or commercial information you include.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Nevada Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).

Public Hearing

    Section 4(b)(5) of the Act provides for one or more public hearings 
on this proposal, if requested. Requests must be received within 45 
days after the date of publication of this proposed rule in the Federal 
Register. Such requests must be sent to the address shown in the FOR

[[Page 64360]]

FURTHER INFORMATION CONTACT section. We will schedule public hearings 
on this proposal, if any are requested, and announce the dates, times, 
and places of those hearings, as well as how to obtain reasonable 
accommodations, in the Federal Register and local newspapers at least 
15 days before the hearing.

Peer Review

    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), we have sought the 
expert opinions of at least three appropriate and independent 
specialists regarding this proposed rule. The purpose of peer review is 
to ensure that our listing determination section 4(d) special rule are 
based on scientifically sound data, assumptions, and analyses. The peer 
reviewers have expertise in the Bi-State DPS' (and the greater sage-
grouse in general) life-history requirements, ecology, and habitat 
needs. We invite comment from the peer reviewers during this public 
comment period.

Previous Federal Actions

    On January 2, 2002, we received a petition from the Institute for 
Wildlife Protection requesting that the sage-grouse occurring in the 
Mono Basin area of California and Nevada be emergency listed as an 
endangered DPS of Centrocercus urophasianus phaios, which the 
petitioner considered to be the western subspecies of the greater sage-
grouse. This request concerned the sage-grouse in portions of Alpine 
and Inyo Counties and most of Mono County in California, and portions 
of Carson City, Douglas, Esmeralda, Lyon, and Mineral Counties in 
Nevada. On December 26, 2002, we published a 90-day finding that the 
petition did not present substantial scientific or commercial 
information indicating that the petitioned action may be warranted (67 
FR 78811). Our 2002 finding concluded: (1) That the petition did not 
present substantial information indicating that the population of 
greater sage-grouse in this area was recognizable as a DPS under our 
DPS policy (61 FR 4722; February 7, 1996), and thus was not a listable 
entity (67 FR 78811; December 26, 2002); and (2) that the petition did 
not present substantial information regarding threats to indicate that 
listing the petitioned population may be warranted (67 FR 78811).
    On November 15, 2005, we received a petition submitted by the 
Stanford Law School Environmental Law Clinic on behalf of the Sagebrush 
Sea Campaign, Western Watersheds Project, Center for Biological 
Diversity, and Christians Caring for Creation to list the Mono Basin 
area population of greater sage-grouse (referred to as the Bi-State DPS 
in this document) as an endangered or threatened DPS of the greater 
sage-grouse (C. urophasianus) under the Act. On March 28, 2006, we 
responded that emergency listing was not warranted and, due to court 
orders and settlement agreements for other listing actions, we would 
not be able to address the petition at that time.
    On November 18, 2005, the Institute for Wildlife Protection and Dr. 
Steven G. Herman filed suit against the Service in U.S. District Court 
for the Western District of Washington (Institute for Wildlife 
Protection et al. v. Norton et al., No. C05-1939 RSM), challenging the 
Service's 90-day finding (67 FR 78811; December 26, 2002) that the 
Institute for Wildlife Protection's January 2002 petition did not 
present substantial information indicating that the petitioned action 
may be warranted. On April 11, 2006, we reached a stipulated settlement 
agreement with both plaintiffs under which we agreed to evaluate the 
November 2005 petition and concurrently reevaluate the January 2002 
petition. The settlement agreement required the Service to submit to 
the Federal Register a 90-day finding by December 8, 2006, and if we 
found the petition to be substantial, to complete the 12-month finding 
by December 10, 2007. On December 19, 2006, we published a 90-day 
finding that these petitions did not present substantial scientific or 
commercial information indicating that the petitioned actions may be 
warranted (71 FR 76058).
    On August 23, 2007, the November 2005 petitioners filed a complaint 
challenging the Service's 2006 finding. After review of the complaint, 
the Service determined that we would revisit our 2006 finding. The 
Service entered into a settlement agreement with the petitioners on 
February 25, 2008, in which the Service agreed to a voluntary remand of 
the 2006 petition finding, and agreed to submit for publication in the 
Federal Register a new 90-day finding by April 25, 2008. The agreement 
further stipulated that if upon reevaluation the Service made a finding 
that the petitions presented substantial information, the Service would 
undertake a status review of the Mono Basin area population of the 
greater sage-grouse and submit for publication in the Federal Register 
a 12-month finding by April 24, 2009.
    On April 29, 2008, we published in the Federal Register (73 FR 
23173) a 90-day petition finding that the petitions presented 
substantial scientific or commercial information indicating that 
listing the Mono Basin area population may be warranted and that 
initiated a status review. A joint stipulation by the Service and the 
plaintiffs agreed to extend the due date for the 12-month finding. On 
May 27, 2009, the U.S. District Court, Northern District of California, 
issued an order accepting a joint stipulation between the Service and 
the plaintiffs, where the parties agreed that the Service may submit to 
the Federal Register a single document containing the 12-month findings 
for the Mono Basin area population and the greater sage-grouse no later 
than by February 26, 2010. The due date for submission of the document 
to the Federal Register was extended to March 5, 2010, and the document 
was subsequently published on March 23, 2010 (75 FR 13910). In this 
document, we concluded, among other things, that the Mono Basin area 
population is a listable entity under Service policy as a DPS and that 
the DPS warranted recognition under the Act but that immediate action 
was precluded by higher listing priorities. This warranted-but-
precluded finding placed the species on our candidate list.
    Both the 2002 and 2005 petitions, as well as our 2002 and 2006 
findings, use the term ``Mono Basin area'' and ``Mono Basin 
population'' to refer to greater sage-grouse that occur within the 
geographic area of eastern California and western Nevada that includes 
Mono Lake. For conservation planning purposes, this same geographic 
area is referred to as the Bi-State area by the States of California 
and Nevada (Bi State Local Planning Group 2004, pp. 4-5). For 
consistency with ongoing planning efforts, we adopted the ``Bi-State'' 
nomenclature in our 2010 finding and consequently refer to this DPS as 
the ``Bi-State DPS'' within this document.

[[Page 64361]]

    On May 10, 2011, we filed a multiyear work plan as part of a 
proposed settlement agreement with Wild Earth Guardians and others in a 
consolidated case in the U.S. District Court for the District of 
Columbia. On September 9, 2011, the Court accepted our agreement with 
the plaintiffs in Endangered Species Act Section 4 Deadline Litig., 
Misc. Action No. 10-377 (EGS), MDL Docket No. 2165 (D. DC) (known as 
the ``MDL case'') on a schedule to publish proposed rules or not-
warranted findings for the 251 species designated as candidates as of 
2010 no later than September 30, 2016. The publication of this proposed 
rule complies with our current work plan.
    Elsewhere in today's Federal Register, we propose to designate 
critical habitat for the Bi-State DPS under the Act.

Background

    In our 12-month finding on petitions to list three entities of 
sage-grouse (75 FR 13910; March 23, 2010), we found that the Bi-State 
population of sage-grouse meets our criteria as a DPS of the sage-
grouse under Service policy (61 FR 4722; February 7, 1996), and we 
reaffirm that this finding is still valid. This determination was based 
principally on genetic information (Benedict et al. 2003, p. 308; 
Oyler-McCance et al. 2005, p. 1,307), where the DPS was found to be 
both markedly separated and significant to the remainder of the sage-
grouse taxon. The Bi-State DPS defines the far southwest limit of the 
species' range along the border of eastern California and western 
Nevada (Stiver et al. 2006, pp. 1-11; 71 FR 76058).
    Although the Bi-State DPS is a genetically unique and markedly 
separated population from the rest of the greater sage-grouse's range, 
the DPS has similar life-history and habitat requirements. In this 
proposed rule, we use information specific to the Bi-State DPS where 
available but still apply scientific management principles for greater 
sage-grouse that are relevant to the Bi-State DPS's management needs 
and strategies, which is a practice followed by the wildlife and land 
management agencies that have responsibility for management of both the 
DPS and its habitat.
    A detailed discussion of the Bi-State DPS's description, taxonomy, 
habitat (sagebrush ecosystem), seasonal habitat selection, life-history 
characteristics, home range, life expectancy and survival rates, 
historical and current range distribution, population estimates and lek 
(sage-grouse breeding complex) counts, population trends, and land 
ownership information is available in the 2013 Species Report (Service 
2013a, entire). A team of Service biologists prepared this status 
review for the Bi-State DPS. The team included biologists from the 
Service's Nevada Fish and Wildlife Office, Ventura Fish and Wildlife 
Office, Pacific Southwest Regional Office, Mountain-Prairie Regional 
Office, and national Headquarters Office. The Species Report represents 
a compilation of the best scientific and commercial data available 
concerning the status of the Bi-State DPS, including the past, present, 
and future threats to this DPS. The Species Report and other materials 
relating to this proposal (e.g., references cited, maps, management 
documents) can be found at http://www.regulations.gov under Docket No. 
FWS-R8-ES-2013-0072, the Pacific Southwest Regional Office Web site 
(http://www.fws.gov/cno/), and two Fish and Wildlife Office Web sites 
(http://www.fws.gov/nevada/ and http://www.fws.gov/ventura/).

Species Information

    As stated above, the Bi-State DPS of greater sage-grouse is 
genetically unique and markedly separated from the rest of the species' 
range. The species as a whole is long-lived, reliant on sagebrush, 
highly traditional in areas of seasonal habitat use, and particularly 
susceptible to habitat fragmentation and alterations in its environment 
(see the ``Seasonal Habitat Selection and Life History 
Characteristics'' section of the Species Report (Service 2013a, pp. 10-
14)). Sage-grouse annually exploit numerous habitat types in the 
sagebrush ecosystem across broad landscapes to successfully complete 
their life cycle, thus spanning ecological and political boundaries. 
Populations are slow-growing due to low reproductive rates (Schroeder 
et al. 1999 pp. 11, 14; Connelly et al. 2000a, pp. 969-970), and they 
exhibit natural, cyclical variability in abundance (see ``Current 
Range/Distribution and Population Estimates/Annual Lek Counts'' section 
of the Species Report (Service 2013a, pp. 17-29)).
    For the purposes of this proposed rule, we discuss the Bi-State DPS 
populations, threats to those populations, and associated management 
needs or conservation actions as they relate to population management 
units (PMUs). Six PMUs were established in 2001 as management tools for 
defining and monitoring sage-grouse distribution in the Bi-State area 
(Sage-Grouse Conservation Planning Team 2001, p. 31). The PMU 
boundaries are based on aggregations of leks, known seasonal habitats, 
and telemetry data, which represent generalized subpopulations or local 
breeding complexes. The six PMUs include: Pine Nut, Desert Creek-Fales, 
Bodie, Mount Grant, South Mono, and White Mountains PMUs. These six 
PMUs represent a total of four to eight demographically independent 
populations with a combined total of approximately 43 active leks (see 
Table 1 below; Service 2013a, pp. 17-20). Leks are considered either 
active (i.e., two or more strutting males during at least 2 years in a 
5-year period), inactive (i.e., surveyed three or more times during one 
breeding season with no birds detected and no sign (e.g., droppings) 
observed), historical (i.e., no strutting activity for 20 years and 
have been checked according to State protocol at least intermittently), 
or unknown (i.e., sign was observed, and one or no strutting males 
observed, or a lek that had activity the prior year but was surveyed 
under unsuitable conditions during the current year and reported one or 
no strutting males).

[[Page 64362]]



 Table 1--Bi-State DPS Population Management Units (PMUs), PMU Size, Estimated Range in Population Size, Number
              of Active Leks, and Reported Range in Total Males Counted on All Leks Within Each PMU
----------------------------------------------------------------------------------------------------------------
                                      Total size     Estimated population  Current number   Lek count (number of
                PMU                    hectares       size range  (2002-   of active leks   males) range  (2002-
                                       (acres) *           2012) **              **               2012) **
----------------------------------------------------------------------------------------------------------------
Pine Nut..........................         232,440  50-331...............               1  6-22
                                         (574,373)
Desert Creek-Fales................         229,858  317-1,268............               8  30-190
                                         (567,992)
Mount Grant.......................         282,907  85-1,412.............               8  12->140
                                         (699,079)
Bodie.............................         141,490  522-2,400............              13  124-510
                                         (349,630)
South Mono........................         234,508  859-2,005............              11  204-426
                                         (579,483)
White Mountains...................         709,768  Data not available...              2+  Data not available
                                       (1,753,875)
                                   -----------------------------------------------------------------------------
    Total (all PMUs combined).....       1,830,972  1,833-7,416..........              43  376-1,288
                                       (4,524,432)
----------------------------------------------------------------------------------------------------------------
* Bi-State Local Planning Group (2004, pp. 11, 32, 63, 102, 127, 153)
** CDFW (2012, unpublished data); NDOW (2012a, unpublished data).

    Each sage-grouse population in the Bi-State area is relatively 
small and below theoretical minimum criteria for long-term persistence, 
as is the entire DPS on average, which is estimated at 1,833 to 7,416 
individuals (formerly California Department of Fish and Game (CDFG), 
now known as California Department of Fish and Wildlife (CDFW)) 2012, 
unpublished data; Nevada Department of Wildlife (NDOW) 2012a, 
unpublished data). The two largest populations exist in the Bodie 
(Bodie Hills population) and South Mono (Long Valley population) PMUs. 
The remaining PMUs contain much smaller populations. Sage-grouse 
abundance declines and sagebrush habitat reductions within the Bi-State 
area are both estimated to exceed 50 percent, with losses historically 
greater on the periphery of the DPS (Service 2013a, p. 135). Overall, 
the remaining habitat is reduced in quality (see various Impact 
Analysis discussions in the Species Report including, but not limited 
to, the ``Infrastructure,'' ``Nonnative and Native Plants,'' and 
``Wildfires and Altered Fire Regime'' sections (Service 2013a, pp. 33-
113)) and, thereby, sage-grouse carrying capacity is also reduced. 
Thus, reductions in sage-grouse abundance proportionally exceed habitat 
loss (in other words, because sage-grouse habitat quality and quantity 
is reduced by greater than 50 percent as compared to historical 
information, the expected sage-grouse population numbers (or abundance) 
are reduced by more than 50 percent). The residual limited connectivity 
of populations and habitats within and among the PMUs also continues to 
slowly erode (Service 2013a, pp. 17-29, 34, 51-52, 55, 65, 73-74, 105-
108, 135).
    Declining Bi-State DPS population trends continue for the Pine Nut, 
Desert Creek-Fales, and Mount Grant PMUs, with an unknown trend for the 
White Mountains PMU (Service 2013a, pp. 21-29). These trends are of 
critical concern at the DPS level because fluctuations in these small, 
less secure populations are likely to result in extirpations and loss 
of population redundancy within the DPS. Historical extirpations 
outside the existing boundaries of the six PMUs present a similar 
pattern of lost peripheral populations (see ``Historical Range/
Distribution'' section of the Species Report) (Service 2013a, pp. 16-
17)). Two range-wide assessments investigating patterns of sage-grouse 
population persistence confirm that PMUs on the northern and southern 
extents of the Bi-State DPS (i.e., Pine Nut, Desert Creek-Fales, and 
White Mountains PMUs) are similar to extirpated sites elsewhere within 
the range of greater sage-grouse, while the central PMUs (i.e., South 
Mono, Bodie, and Mount Grant PMUs) are similar to extant sites 
(Aldridge et al. 2008, entire; Wisdom et al. 2011, entire). In other 
words, these assessments suggest that the sage-grouse populations 
within the Pine Nut, Desert Creek-Fales, and White Mountains PMUs have 
an increased risk of extirpation in the near future as compared to the 
other PMUs that currently harbor larger populations.
    The Bodie and South Mono PMUs form the central core of the Bi-State 
DPS. The Bodie Hills and Long Valley populations are the largest sage-
grouse populations within the Bi-State area and encompass approximately 
70 percent of existing Bi-State DPS individuals (Service 2013a, pp. 24-
27). These populations are relatively stable at present (estimates 
range from approximately 522 to 2,400 individuals in the Bodie PMU and 
859 to 2,005 individuals in the South Mono PMU), and the scope and 
severity of known impacts are comparatively less than in other PMUs. 
Although populations currently are relatively stable with overall fewer 
impacts as compared to the other four PMUs, the Bodie and South Mono 
PMUs have experienced prior habitat losses, population declines, and 
internal habitat fragmentation. Significant connectivity between the 
populations within these two PMUs is currently lacking (Service 2013a, 
p. 26, 135), and both PMUs (as well as the other four PMUs) are 
increasingly vulnerable to the effects of cheatgrass invasion (Service 
2013a, pp. 65-67, 69) and wildfire impacts (Service 2013a, pp. 69-76).
    Together, the Bodie and South Mono PMUs represent less than 20 
percent of the historical range for the Bi-State DPS (historically, the 
DPS occurred throughout most of Mono, eastern Alpine, and northern Inyo 
Counties, California (Hall et al. 2008, p. 97), and portions of Carson 
City, Douglas, Esmeralda, Lyon, and Mineral Counties, Nevada (Gullion 
and Christensen 1957, pp. 131-132; Espinosa 2006)). While both the 
Bodie and South Mono PMUs (which harbor the two largest populations) 
are projected by sage-grouse experts to have moderate to high 
probabilities of persistence into the future (Aldridge et al. 2008, 
entire; Wisdom et al. 2011, entire), the Bodie PMU has fluctuated with 
positive and

[[Page 64363]]

negative population growth over the past 40 years with no discernible 
long-term trend (Service 2013a, pp. 24-26). In addition, the Bodie PMU 
is expected to fall below 500 breeding adults within the next 30 years 
(Garton et al. 2011, p. 310). The long-term population trend for the 
South Mono PMU has been stable (Service 2013a, p. 26-27), but sage-
grouse experts predict an 80 percent chance of the population declining 
to fewer than 500 breeding adults in 30 years (Garton et al. 2011, p. 
310).
    In summary, the Service anticipates a greater risk of sage-grouse 
population loss for four of the six PMUs in the Bi-State DPS (i.e., 
Pine Nut, Desert Creek-Fales, Mount Grant, and White Mountains PMUs) as 
compared to the PMUs that harbor the central core or largest 
populations (i.e., Bodie and South Mono PMUs). Additionally, the core 
population in the Bodie PMU is likely to have reduced viability within 
30 years, and the two populations in the South Mono PMU (including one 
of two core populations--Long Valley) will likely persist but exhibit 
reduced population viability in the next 30 years.
    Following are brief accounts of each PMU. Primary threats are 
introduced in these summaries and described in more detail in the 
Summary of Factors Affecting the Species section below, and fully 
evaluated and described in the ``Impact Analysis'' section of the 
Species Report (Service 2013a, pp. 33-127).
    (1) The Pine Nut PMU has the smallest number of sage-grouse of all 
Bi-State DPS PMUs (i.e., 1 population ranging in size from 50 to 331 
individuals based on data collected between 2002 and 2012 (Table 1, 
above). This population represents approximately 5 percent of the DPS. 
The population in the Pine Nut PMU has some level of connectivity with 
the Desert Creek-Fales PMU and potentially also with the Bodie and 
Mount Grant PMUs. Urbanization, grazing management, wildfire, invasive 
species, infrastructure, and mineral development are affecting this 
population, and the scope and severity of most of these impacts are 
likely to increase into the future based on the proximity of the PMU to 
expanding urban areas, agricultural operations, road networks, and 
power lines; altered fire regimes; new mineral entry proposals; and 
increasing recreational off-highway vehicle (OHV) use on public lands. 
Because of the current small population size and the ongoing and 
potential future magnitude of habitat impacts, the sage-grouse 
population in the Pine Nut PMU (i.e., the northern-most population 
within the range of the Bi-State DPS) is at a greater risk of 
extirpation than other PMUs within the Bi-State area.
    (2) The Desert Creek-Fales PMU straddles the Nevada-California 
border and contains two populations, one in each State. The two 
populations have ranged in size from 317 to 1,268 individuals between 
2002 and 2012 (Table 1, above). The populations in the Desert Creek-
Fales PMU have some level of connectivity with the Pine Nut PMU and 
potentially also with the Bodie and Mount Grant PMUs. The most 
significant impacts in this PMU are wildfire, invasive species 
(specifically conifer encroachment), infrastructure, and urbanization. 
Private land acquisitions in California and conifer removal in Nevada 
and California have mitigated some of the impacts locally within this 
PMU. However, urbanization and woodland succession remain a concern 
based on the lack of permanent protection for important brood-rearing 
(summer) habitat that occurs primarily on irrigated private pasture 
lands and continued pinyon-juniper encroachment that is contracting 
distribution of the populations and connectivity between populations. 
While some of these impacts are more easily alleviated than others 
(e.g., conifer encroachment), the existing condition is likely to 
worsen in the future (Bi-State TAC 2012, pp. 24-25). The PMU has seen 
episodic sage-grouse population declines in the past, and current 
conditions indicate declines may continue. Long-term persistence of the 
sage-grouse populations in the Desert Creek-Fales PMU is unlikely 
without successful implementation of additional conservation measures.
    (3) The Mount Grant PMU contains one population, with population 
estimates between 2002 and 2012 ranging from 85 to 1,412 individuals 
(Table 1, above). The population in the Mount Grant PMU has some level 
of connectivity with the Bodie PMU and potentially also with the Desert 
Creek-Fales and Pine Nut PMUs. Habitat impact sources in this PMU 
include woodland encroachment, renewable energy and mineral 
development, infrastructure, and the potential for wildfire. Woodland 
encroachment, mineral development, and infrastructure currently 
fragment habitat in this PMU and, in the future, these as well as 
wildfire (if it occurs) may reduce or eliminate connectivity to the 
sage-grouse population in the adjacent Bodie PMU. Long-term persistence 
of the sage-grouse population in the Mount Grant PMU is less likely 
than in the other PMUs that currently harbor larger populations of 
sage-grouse in the Bi-State area without successful implementation of 
additional conservation measures.
    (4) The Bodie PMU contains one population (Bodie Hills), which is 
one of the two core (largest) populations for the Bi-State DPS. 
Population estimates for this PMU over the past decade range from 552 
to 2,400 individuals (Table 1, above). This PMU typically has the 
highest number of active leks (i.e., 13) of all the PMUs. The 
population in the Bodie PMU has some level of connectivity with the 
Mount Grant PMU and potentially also with the Desert Creek-Fales and 
Pine Nut PMUs. Woodland succession is estimated to have caused a 40 
percent reduction in sagebrush habitat throughout the Bodie PMU, and 
encroachment into sagebrush habitat is expected to continue both from 
woodland edge expansion and infilling. The potential of future wildfire 
(largely unrealized) and subsequent widespread habitat loss by 
conversion to annual grasses is of greatest concern based on the 
increased understory presence of cheatgrass, specifically Wyoming big 
sagebrush (Artemisia tridentata spp. wyomingensis) communities within 
the Bodie PMU (e.g., Bodie Hills). In addition, the potential for 
additional loss (largely restricted to date) of sage-grouse habitat to 
exurban development (i.e., development of a small, usually prosperous 
community situated beyond the suburbs of a city) on unprotected private 
lands in the Bodie PMU is also a concern because these lands provide 
summer and winter use areas and connectivity among the Bodie, Mount 
Grant, and Desert Creek-Fales PMUs. Current impacts posed by 
infrastructure, grazing, and mineral extraction are of minimal severity 
in the Bodie PMU, but additional future impacts are anticipated.
    (5) The South Mono PMU contains two populations (Long Valley and 
Parker Meadows). The Long Valley population is one of the two largest 
(core) populations for the Bi-State DPS. Population estimates for this 
PMU over the past decade range from 859 to 2,005 individuals (Table 1). 
The South Mono PMU has typically had the highest estimated population 
size of all the PMUs. This PMU is considered to be largely isolated 
from the other PMUs. Currently, the most significant impacts in the 
South Mono PMU are infrastructure and recreation, with the potential 
for increased wildfire. An important indirect impact of infrastructure 
to the sage-grouse population in Long Valley is predation, likely 
associated with the local landfill. Predation (primarily from ravens)

[[Page 64364]]

appears to reduce sage-grouse nest success in Long Valley, although the 
population appears stable. The Parker Meadows population currently has 
one active lek and is quite small; from 2002 to 2010, male sage-grouse 
counts have ranged between 3 and 17. This population has the lowest 
reported genetic diversity in the Bi-State area, and it is experiencing 
high nest failure rates due to nonviable eggs (Gardner 2009, entire), 
potentially indicative of genetic challenges.
    (6) The White Mountains PMU contains one population. No recent 
population estimate for this southern-most PMU is available, and, 
overall, information on population status and impacts is limited. The 
area is remote and difficult to access, and most data are from periodic 
observations rather than comprehensive surveys. The population in the 
White Mountains PMU is considered to be largely isolated from the other 
PMUs. Current impacts such as exurban development (e.g., Chiatovich 
Creek area (Bi-State Lek Surveillance Program 2012, p. 38)), grazing, 
recreation, and invasive species may be influencing portions of the 
population and are likely to increase in the future, but current 
impacts are considered minimal due to the remote locations of most 
known sage-grouse use areas. Potential future impacts from 
infrastructure (power lines, roads) and mineral developments could lead 
to the loss of the remote, contiguous nature of the habitat. Because 
the population in the White Mountains PMU is small and on the periphery 
of the range of the Bi-State DPS, it is vulnerable to extirpation if 
future impacts increase.

Summary of Factors Affecting the Species

    Under the Act, we can determine that a species is an endangered or 
threatened species based on any of five factors: (A) The present or 
threatened destruction, modification, or curtailment of its habitat or 
range; (B) overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence.
    A threats analysis for the Bi-State DPS is included in the Species 
Report (Service 2013a, entire) associated with this proposed rule (and 
available at http://www.regulations.gov under Docket No. FWS-R8-ES-
2013-0072, http://www.fws.gov/cno/, http://www.fws.gov/nevada/, and 
http://www.fws.gov/ventura/). All potential threats of which we are 
aware that are acting upon the Bi-State DPS currently or in the future 
(and consistent with the five listing factors identified above) were 
evaluated and addressed in the Species Report, and are summarized in 
the following paragraphs.
    Many of the impacts to sage-grouse populations and sagebrush 
habitats in the Bi-State DPS are present throughout the range, and, 
while they currently affect the DPS to varying degrees, these impacts 
are likely to continue into the future. The populations and habitat in 
the northern extent of the Bi-State area, including the Pine Nut, 
Desert Creek-Fales, and Mount Grant PMUs, are now and will continue to 
be most at risk from the various threats acting upon the Bi-State DPS 
and its habitat. We anticipate loss of some populations and contraction 
of the ranges of others in these three PMUs (see Species Information 
section above and ``Bi-State DPS Population Trends'' section of the 
Species Report), which will leave them susceptible to extirpation from 
stochastic events such as wildfire, drought, and disease. We expect 
that only two isolated populations in the Bodie and South Mono PMUs 
(i.e., the Bodie Hills and Long Valley populations, respectively) may 
remain in 30 years (Aldridge et al. 2008, entire; Garton et al. 2011, 
p. 310; Wisdom et al. 2011, entire).
    The impacts that are of high current or future scope and severity 
within the DPS (i.e., the most significant threats overall across the 
range of the Bi-State DPS) include those that are resulting in the 
present or threatened destruction, modification, or curtailment of its 
habitat or range, and other natural or manmade threats affecting the 
DPS's continued existence. These significant threats include 
infrastructure (i.e., fences, power lines, and roads) (Factors A and 
E); grazing and rangeland management (Factors A, C, and E); nonnative 
and native, invasive plants (e.g., pinyon-juniper encroachment, 
cheatgrass) (Factors A and E); wildfires and altered fire regime 
(Factors A and E); and the small size of the DPS (both the number of 
individual populations and their size), which increases the risk of 
extinction (Factor E). In addition, the small number, size, and 
isolation of the populations may magnify the effects of other less 
significant impacts that are currently acting upon the Bi-State DPS, 
including urbanization and habitat conversion, mining, renewable energy 
development, climate (including drought), overutilization, recreation, 
disease, and predation) (Factors A, B, C, and E). Many of these 
impacts, including those that are currently considered minor (as 
compared to significant), are also cumulatively acting upon the Bi-
State DPS and, therefore, increase the risk of extinction. Following a 
thorough analysis of the best available information, we determined that 
hunting, scientific and educational uses, pesticides and herbicides, 
and contaminants have negligible impacts to the Bi-State DPS at this 
time.
    The Bi-State DPS is experiencing multiple, identifiable interacting 
impacts (i.e., synergistic effects) to sage-grouse populations and 
sagebrush habitats that are ongoing (and expected to continue into the 
future) in many areas throughout the DPS's range; some of these threats 
are imminent in certain portions of the DPS's range. Individually, each 
of these impacts is unlikely to affect persistence across the entire 
Bi-State DPS, but each may act independently to affect persistence of 
individual populations. The scope, severity, and timing of these 
impacts vary at the individual PMU level. In particular, rangewide 
impacts resulting in fragmentation and the destruction, modification, 
or curtailment of the DPS's habitat or range are occurring through 
infrastructure; grazing and rangeland management; nonnative and native 
invasive species (e.g., cheatgrass, pinyon-juniper encroachment); and 
wildfire and an altered fire regime.
    While additional less significant impacts are not occurring 
everywhere across the DPS at this time (such as, but not limited to, 
urbanization, mining, renewable energy development, or West Nile virus 
(WNv) infections), where impacts are occurring, the risk they pose to 
the DPS could be exacerbated and magnified in the future due to the 
small number, size, and isolation of populations within the DPS. We are 
unaware of information that can be used to predict future locations 
where some impacts could manifest on the landscape (such as effects of 
climate change, or locations of wildfires that in turn could continue 
the spread of nonnative species such as cheatgrass within the Bi-State 
area). To the extent to which these impacts occur within habitat used 
by the Bi-State DPS, due to the low number of populations and their 
mostly small sizes, the effects to the DPS throughout its range could 
be magnified. Due to the scope of the impacts occurring throughout the 
range of the DPS, current and anticipated future habitat degradation, 
fragmentation and loss, and isolation of already small populations, the 
potential severity of impacts to the entire Bi-State DPS is considered 
high.
    Following are summary evaluations of 16 potential threats to the 
Bi-State DPS, including: Nonnative and native,

[[Page 64365]]

invasive species (Factor A and E); wildfires and altered fire regime 
(Factors A and E); infrastructure, including roads, power lines, 
fences, communication towers, and landfills (Factors A and E); grazing 
and rangeland management (Factors A, C, and E); small population size 
and population structure (Factor E); urbanization and habitat 
conversion (Factor A); mining (Factors A and E); renewable energy 
development and associated infrastructure (Factors A and E); disease or 
predation (Factor C); climate change, including drought (Factors A and 
E); recreation (Factors A and E); overutilization (including commercial 
and recreational hunting) (Factor B); scientific and educational uses 
(Factor B); pesticides and herbicides (Factor E); and contaminants 
(Factor E). The inadequacy of existing regulatory mechanisms was also 
evaluated (Factor D). Please see the Species Report (Service 2013a, pp. 
33-127) for a full evaluation, including but not limited to, an 
evaluation of the scope, severity, and timing of each potential threat 
(including many literature citations).

Nonnative and Native, Invasive Plants

    Nonnative, invasive plants negatively impact sagebrush ecosystems 
by altering plant community structure and composition, productivity, 
nutrient cycling, and hydrology (Vitousek 1990, p. 7) (Factor A), and 
may cause declines in native plant populations through competitive 
exclusion and niche displacement, among other mechanisms (Mooney and 
Cleland 2001, p. 5446) (Factor E). They can create long-term changes in 
ecosystem processes (Factor A), such as fire cycles (see Wildfires and 
Altered Fire Regime section below, and in the Species Report (Service 
2013a, pp. 69-76)) and other disturbance regimes that persist even 
after an invasive plant is removed (Zouhar et al. 2008, p. 33). A 
variety of nonnative annuals and perennials are invasive to sagebrush 
ecosystems (Connelly et al. 2004, pp. 7-107 to 7-108; Zouhar et al. 
2008, p. 144). Cheatgrass is considered most invasive in Wyoming 
sagebrush communities (which is a subspecies of sagebrush that occurs 
in the Bi-State area), while medusahead rye (Taeniatherum caput-medusae 
(L.) Nevski) fills a similar niche in more mesic communities with 
heavier clay soils (Connelly et al. 2004, p. 5-9).
    Some native tree species are also invading sagebrush habitat and 
impacting the suitability of the habitat for the various life processes 
of the Bi-State DPS. Pinyon-juniper woodlands are a native vegetation 
community dominated by Pinus edulis (pinyon pine) and various Juniperus 
(juniper) species that can encroach upon, infill, and eventually 
replace sagebrush habitat (Factors A and E). Some portions of the Bi-
State DPS's range are also being adversely affected by Pinus jeffreyi 
(Jeffrey pine) encroachment. Woodland encroachment is causing 
significant, measurable habitat loss throughout the range of the Bi-
State DPS. While techniques to address this habitat impact are 
available and being implemented, the scale of such efforts is currently 
inadequate. Woodlands have expanded by an estimated 20,234 to 60,703 
hectares (ha) (50,000 to 150,000 acres (ac)) over the past decade in 
the Bi-State area, but woodland treatments have only been implemented 
on 6,475 ha (16,000 ac) (Service 2013b, unpublished data). Overall, 
forest or woodland encroachment into occupied sage-grouse habitat 
reduces, and likely eventually eliminates, sage-grouse use.
    Both nonnative and native, invasive plants are impacting the sage-
grouse and its habitat in the Bi-State area. In general, nonnative 
plants are not abundant in the Bi-State area, with the exception of 
cheatgrass, which occurs in all PMUs throughout the range of the DPS 
(although it is currently most extensive in the Pine Nut PMU). 
Cheatgrass will likely continue to expand across the entire Bi-State 
area in the future and increase the adverse impact that currently 
exists to sagebrush habitats and the greater sage-grouse through 
outcompeting beneficial understory plant species and altering the fire 
ecology of the area. Alteration of the fire ecology of the Bi-State 
area is of greatest concern. Land managers have had little success 
preventing cheatgrass invasion in the West, and elevational barriers to 
occurrence are becoming less restrictive (Miller et al. 2011, p. 161; 
Brown and Rowe in litt., entire). The best available data suggest that 
future conditions, mostly influenced by precipitation and winter 
temperatures, will be more hospitable for cheatgrass (Bradley 2009, p. 
201). Cheatgrass is a serious challenge to the sagebrush shrub 
community and its spread will be detrimental to sage-grouse in the Bi-
State area. In addition, the encroachment of native woodlands 
(particularly pinyon-juniper) into sagebrush habitats is occurring 
throughout the Bi-State area, and continued isolation and reduction of 
suitable habitats will further adversely influence both short- and 
long-term persistence of sage-grouse. We predict that future woodland 
encroachment will continue across the entire Bi-State area, but 
recognize this is a potentially manageable threat through treatment and 
management actions. To date, woodland encroachment has outpaced 
management efforts.
    Overall, nonnative and native, invasive species occur throughout 
the entire Bi-State DPS's range and have a significant impact on the 
DPS both currently and in the future. This is based on the extensive 
amount of pinyon-juniper encroachment and cheatgrass invasion that is 
occurring throughout the range of the Bi-State DPS, and the interacting 
impact these invasions have on habitat quality (e.g., reduces foraging 
habitat, increases likelihood of wildfire) and habitat fragmentation. 
See the ``Nonnative and Native Invasive Species'' section of the 
Species Report for further discussion (Service 2013a, pp. 65-69).

Wildfires and Altered Fire Regime

    Wildfire is the principle disturbance mechanism affecting sagebrush 
communities, although the nature of historical fire patterns, 
particularly in Wyoming big sagebrush vegetation communities, is not 
well understood and historically infrequent (Miller and Eddleman 2000, 
p. 16; Zouhar et al. 2008, p. 154; Baker 2011, pp. 189, 196). The 
historical sagebrush systems likely consisted of extensive sagebrush 
habitat dotted by small areas of grassland that were maintained by 
numerous small fires with long interludes between fires, which 
accounted for little burned area, and that were punctuated by large 
fire events (Baker 2011, p. 197). In general, fire extensively reduces 
sagebrush within burned areas, and the most widespread species of 
sagebrush can take decades to re-establish and much longer to return to 
pre-burn conditions (Braun 1998, p. 147; Cooper et al. 2007, p. 13; 
Lesica et al. 2007, p. 264; Baker, 2011, pp. 194-195).
    When intervals between wildfire events become unnaturally long in 
sagebrush communities, woodlands have the ability to expand (allowing 
seedlings to establish and trees to mature (Miller et al. 2011, p. 
167)) when they are adjacent to or are present (in small quantities) 
within sagebrush habitat. Conifer woodlands have expanded into 
sagebrush ecosystems throughout the sage-grouse's range over the last 
century (Miller et al. 2011, p. 162). Alternatively, a shortened fire 
frequency interval within sagebrush habitat can result in the invasion 
of nonnative, invasive, annual grasses, such as cheatgrass and 
medusahead rye; once these nonnatives are established, wildfire 
frequency within sagebrush ecosystems can increase (Zouhar et al.

[[Page 64366]]

2008, p. 41; Miller et al. 2011, p. 167; Balch et al. 2013, p. 178).
    While multiple factors can influence sagebrush persistence, 
wildfire can cause large-scale habitat losses that lead to 
fragmentation and isolation of sage-grouse populations (Factors A and 
E). In addition to loss of habitat and its influence on sage-grouse 
population persistence, fragmentation and isolation of populations 
presents a higher probability of extirpation in disjunct areas (Knick 
and Hanser 2011, p. 395; Wisdom et al. 2011, p. 469). As areas become 
isolated through disturbances such as wildfire, populations are exposed 
to additional threats (or threats already present but to a minor or 
negligible degree) and the Bi-State DPS's persistence may be hampered 
by the limited ability of individuals to disperse into areas that are 
otherwise not self-sustaining. Thus, while direct loss of habitat due 
to wildfire is a significant factor associated with population 
persistence for sage-grouse (Beck et al. 2012, p. 452), the indirect 
effect from loss of connectivity among populations may greatly expand 
the influence of this threat beyond the physical fire perimeter.
    Wildfire is considered a relatively high risk across all the PMUs 
in the Bi-State area due to its ability to affect large landscapes in a 
short period of time (Bi-State Technical Advisory Committee (TAC) 2012, 
pp. 19, 26, 32, 37, 41, 49). Furthermore, the future risk of wildfire 
is exacerbated by the presence of people, invasive species, and climate 
change. While dozens of wildfires have occurred in the Pine Nut, Desert 
Creek-Fales, Bodie, and South Mono PMUs (fewer in the Mount Grant and 
White Mountains PMUs) over the past 20 years, to date there have been 
relatively few large-scale events. In general, although current data do 
not indicate an increase of wildfires in the Bi-State DPS, based on 
continuing habitat conditions, we predict an increase in wildfires over 
time. Furthermore, cheatgrass is increasing within the Bi-State area, 
particularly in the Pine Nut PMU where several recent fires have 
occurred, which appears to mirror the damaging fire and invasive 
species cycle that affects sagebrush habitat across much of the 
southern Great Basin.
    Changes in fire ecology over time have resulted in an altered fire 
regime in the Bi-State area, presenting future wildfire risk in all 
PMUs (Bi-State TAC 2012, pp. 19, 26, 32, 37, 41, 49). A reduction in 
fire occurrence has facilitated the expansion of woodlands into montane 
sagebrush communities in all PMUs (see Nonnative and Native, Invasive 
Plants, above). Meanwhile, a pattern of overabundance in wildfire 
occurrence in sagebrush communities is apparent in the Pine Nut PMU. 
Each of these alterations to wildfire regimes has contributed to 
fragmentation of habitat and the isolation of the sage-grouse 
populations (Bi-State Local Planning Group 2004, pp. 95-96, 133).
    The loss of habitat due to wildfire across the West is anticipated 
to increase due to the intensifying, synergistic interactions among 
fire, people, invasive species, and climate change (Miller et al. 2011, 
p. 184). The recent past- and present-day fire regimes across the sage-
grouse's range (i.e., beyond the range of the Bi-State DPS) have 
changed with a demonstrated increase of wildfires in the more arid 
Wyoming big sagebrush communities and a decrease of wildfire across 
many mountain sagebrush (Artemisia tridentata ssp. vaseyana) 
communities (Miller et al. 2011, pp. 167-169). Both altered fire regime 
scenarios have caused losses to sage-grouse habitat through 
facilitating nonnative, invasive weed encroachment at lower elevations 
and conifer expansion at high-elevation interfaces (Miller et al. 2011, 
pp. 167-169).
    In the face of climate change, both scenarios are anticipated to 
worsen (Baker 2011, p. 200; Miller et al. 2011, p. 179), including in 
the Bi-State area. Predicted changes in temperature, precipitation, and 
carbon dioxide (see ``Climate Change'' section of the Species Report 
(Service 2013a, pp. 76-83)) are all anticipated to influence vegetation 
dynamics and alter fire patterns resulting in the increasing loss and 
conversion of sagebrush habitats (Neilson et al. 2005, p. 157). Many 
climate scientists suggest that in addition to the predicted change in 
climate toward a warmer and generally dryer Great Basin, variability of 
interannual and interdecadal wet-dry cycles will likely increase and 
act in concert with fire, disease, and invasive species to further 
stress the sagebrush ecosystem (Neilson et al. 2005, p. 152). See the 
Synergistic Effects section below and the ``Overall Summary of Species 
Status and Impacts'' section of the Species Report (Service 2013a, pp. 
135-147) for further discussion of synergistic effects. The anticipated 
increase in suitable conditions for wildland fire will likely further 
be influenced by people and infrastructure. Human-caused fires have 
increased and are correlated with road presence across the sage-
grouse's range, and a similar pattern may exist in the Bi-State area 
(Miller et al. 2011, p. 171).
    Fire is one of the primary factors linked to population declines of 
sage-grouse across the West because of long-term loss of sagebrush and 
frequent conversion to monocultures of nonnative, invasive grasses 
(Connelly and Braun 1997, p. 7; Johnson et al. 2011, p. 424; Knick and 
Hanser 2011, p. 395). Within the Bi-State area, the Bureau of Land 
Management (BLM) and U.S. Forest Service (USFS) currently manage the 
area to limit the loss of sagebrush habitat given adequate resources 
(BLM 2012, entire; USFS 2012, entire). Based on the best available 
information, historical wildfire events have not removed a significant 
amount of sagebrush habitat across the Bi-State area, and conversion of 
sagebrush habitat to a nonnative invasive vegetation community has been 
restricted (except for the Pine Nut PMU). It does appear that a lack of 
historical fire has facilitated the establishment of woodland 
vegetation communities and loss of sagebrush habitat. Both the ``too-
little'' and ``too-much'' fire scenarios present challenges for the Bi-
State DPS. The former influences the current degree of connectivity 
among sage-grouse populations in the Bi-State area and the extent of 
available sagebrush habitat, likely affecting sage-grouse population 
size and persistence as a result of habitat modification (such as 
through conifer encroachment). The latter, under current conditions, 
now has the potential to quickly alter a large portion of remaining 
sagebrush habitat.
    Restoration of altered sagebrush communities following fire is 
difficult, requires many years, and may be ineffective in the presence 
of nonnative, invasive grass species. Additionally, sage-grouse are 
slow to recolonize burned areas even if structural features of the 
shrub community have recovered (Knick et al. 2011, p. 233).
    While it is not currently possible to predict the extent or 
location of future fire events in the Bi-State area, and historical 
wildfire events have not removed a significant amount of sagebrush 
habitat across Bi-State area to date, we anticipate fire frequency to 
increase in the future due to the increasing presence of cheatgrass and 
people, and the projected effects of climate change. Given the 
fragmented nature and small size of the populations within the Bi-State 
DPS, increasing wildfires in sagebrush habitats would likely have a 
significant adverse effect on the overall viability of the DPS.
    Overall, this threat of wildfire and the existing altered fire 
regime occurs throughout the Bi-State DPS's range, and has a 
significant impact on the DPS both currently and in the future. This is 
based on a continued fire frequency that

[[Page 64367]]

exacerbates pinyon-juniper encroachment into sagebrush habitat in some 
locations, but also an increased fire frequency in other locations that 
promotes the spread of cheatgrass and other invasive species that in 
turn can hamper recovery of sagebrush habitat. See the ``Wildfires and 
Altered Fire Regime'' section of the Species Report for further 
discussion (Service 2013a, pp. 69-76).

Infrastructure

    Infrastructure is described in the Species Report (Service 2013a, 
pp. 38-52) to include features that assist or are required for the 
pursuit of human-initiated development or an associated action. Five 
infrastructure features are impacting the Bi-State DPS: three linear 
features (roads, power lines, and fences) and two site-specific 
features (landfills and communication towers). While there may be other 
features that could be characterized as infrastructure (such as 
railroads or pipelines), these are not present in the Bi-State area, 
and we are unaware of any information suggesting they would impact the 
Bi-State DPS in the future.
    In the Bi-State area, linear infrastructure impacts each PMU both 
directly and indirectly to varying degrees. Existing roads, power 
lines, and fences degrade and fragment sage-grouse habitat (such as 
Braun 1998, pp. 145, 146) (Factor A), and contribute to direct 
mortality through collisions (such as Patterson 1952, p. 81) (Factor 
E). In addition, roads, power lines, and fences deter the sage-grouse's 
use of otherwise suitable habitats adjacent to current active areas, 
and increase predators and invasive plants (such as Forman and 
Alexander 1998, pp. 207-231 and Connelly et al. 2000a, p. 974).
    The impact to the Bi-State DPS caused by indirect effects extends 
beyond the immediate timeframe associated with the infrastructure 
installation (i.e., the existence of an extended road system, power 
lines, and fencing already likely limit our ability to recover the Bi-
State DPS in various areas). We do not have consistent and comparable 
information on miles of existing roads, power lines, or fences, or 
densities of these features within PMUs or for the Bi-State area as a 
whole. However, given current and future development (based on known 
energy resources), the Mount Grant, Desert Creek-Fales, Pine Nut, and 
South Mono PMUs are likely to be the most directly influenced by new 
power lines and associated infrastructure. Wisdom et al. (2011, p. 463) 
reported that across the entire range of the greater sage-grouse, the 
mean distance to highways and transmission lines for extirpated 
populations was approximately 5 kilometers (km) (3.1 miles (mi)) or 
less. In the Bi-State area, between 35 and 45 percent of annually 
occupied leks are within 5 km (3.1 mi) of highways, and between 40 and 
50 percent are within this distance to existing transmission lines 
(Service 2013b, unpublished data). Therefore, the apparent similarity 
between existing Bi-State conditions and extirpated populations 
elsewhere suggests that persistence of substantial numbers of leks 
within the Bi-State DPS will likely be negatively influenced by these 
anthropogenic features.
    The geographic extent, density, type, and frequency of linear 
infrastructure disturbance in the Bi-State area have changed over time. 
While substantial new development of some of these features (e.g., 
highways) is unlikely, other infrastructure features are likely to 
increase (secondary roads, power lines, fencing, and communication 
towers). Furthermore, improvements to existing roads are possible, and 
traffic volume will likely increase, which may be a bigger impact than 
road development itself. For example, with the proliferation of OHV 
usage within the range of the Bi-State DPS, the potential impact to the 
sage-grouse and its habitat caused by continued use of secondary or 
unimproved roads may become of greater importance as traffic volume 
increases rates of disturbance and the spread of nonnative invasive 
species in areas that traditionally have been traveled relatively 
sporadically.
    Other types of non-road infrastructure (e.g., cellular towers and 
landfills) also appear to be adversely impacting the Bi-State DPS. At 
least eight cellular tower locations are currently known to exist in 
occupied habitat (all PMUs) in the Bi-State area. Wisdom et al. (2011, 
p. 463) determined that presence of cellular towers likely contribute 
to population extirpation, and additional tower installations will 
likely occur in the near future as development continues. The landfill 
facility in Long Valley (within the South Mono PMU) is likely 
influencing sage-grouse population demography in the area, as nest 
success is comparatively low and subsidized avian nest predator numbers 
are high (Kolada et al. 2009, p. 1,344). While this large population of 
sage-grouse (i.e., one of two core populations in the Bi-State area) 
currently appears stable, recovery following any potential future 
perturbations affecting other vital rates (i.e., brood survival and 
adult survival) will be limited by nesting success.
    Overall, infrastructure occurs in various forms throughout the Bi-
State DPS's range and has adversely impacted the DPS. These impacts are 
expected to continue or increase in the future and result in habitat 
fragmentation; limitations for sage-grouse recovery actions due to an 
extensive road network, power lines, and fencing; and a variety of 
direct and indirect impacts, such as loss of individuals from 
collisions or structures that promote increased potential for 
predation. Collectively, these threats may result in perturbations that 
influence both demographic vital rates of sage-grouse (e.g., 
reproductive success and adult sage-grouse survival) and habitat 
suitability in the Bi-State area. See the ``Infrastructure'' section of 
the Species Report for further discussion (Service 2013a, pp. 38-52).

Grazing and Rangeland Management

    Livestock grazing continues to be the most widespread land use 
across the sagebrush biome (Knick et al. 2003, p. 616; Connelly et al. 
2004, p. 7-29; Knick et al. 2011, p. 219), including within the Bi-
State area. However, links between grazing practices and population 
levels of sage-grouse are not well-studied (Braun 1987, p. 137; 
Connelly and Braun 1997, p. 231). Domestic livestock management has the 
potential to result in sage-grouse habitat degradation (Factor A). 
Grazing can adversely impact nesting and brood-rearing habitat by 
decreasing vegetation used for concealment from predators (Factors A 
and C). Grazing also compacts soils; decreases herbaceous abundance; 
increases soil erosion; and increases the probability of invasion of 
nonnative, invasive plant species (Factor A). Livestock management and 
associated infrastructure (such as water developments and fencing) can 
degrade important nesting and brood rearing habitat, reduce nesting 
success, and facilitate the spread of WNv (Factors A, C, and E). 
However, despite numerous documented negative impacts, some research 
suggests that under specific conditions, grazing domestic livestock can 
benefit sage-grouse (Klebenow 1982, p. 121). Other research conducted 
in Nevada found that cattle grazing can be used to stimulate forbs 
important as sage-grouse food (Neel 1980, entire; Klebenow 1982, 
entire; Evans 1986, entire).
    Similar to domestic livestock, grazing and management of feral 
horses have the potential to negatively affect sage-grouse habitats by 
decreasing grass cover, fragmenting shrub canopies, altering soil 
characteristics, decreasing plant diversity, and increasing the 
abundance of invasive cheatgrass (Factor A). Native ungulates (mule 
deer (Odocoileus hemionus) and pronghorn antelope (Antilocapra 
americana)) co-

[[Page 64368]]

exist with sage-grouse in the Bi-State area, but we are not aware of 
significant impacts from these species on sage-grouse populations or 
sage-grouse habitat. However, the impacts from different ungulate taxa 
may have an additive negative influence on sage-grouse habitats (Beever 
and Aldridge 2011, p. 286). Cattle, horses, mule deer, and pronghorn 
antelope each use the sagebrush ecosystem somewhat differently, and the 
combination of multiple ungulate species may produce a different result 
than a single species.
    There are localized areas of habitat degradation in the Bi-State 
area attributable to past grazing practices that indirectly and, 
combined with other impacts, cumulatively affect sage-grouse habitat. 
In general, upland sagebrush communities in the Pine Nut and Mount 
Grant PMUs deviate from desired conditions for sage-grouse due to lack 
of understory plant species, while across the remainder of the PMUs 
localized areas of meadow degradation are apparent, and these 
conditions may influence sage-grouse populations through altering 
nesting and brood-rearing success. Currently, there is little direct 
evidence linking grazing effects and sage-grouse population responses. 
Analyses for grazing impacts at the landscape scales important to sage-
grouse are confounded by the fact that almost all sage-grouse habitat 
has at one time been grazed, and thus, no ungrazed control areas exist 
for comparisons (Knick et al. 2011, p. 232). Across the Bi-State area, 
we anticipate rangeland management will continue into the future, and 
some aspects (such as feral horses) will remain difficult to manage. 
Remaining impacts caused by historical practices will linger as 
vegetation communities and disturbance regimes recover. Change will 
likely occur slowly, and alterations to climate and drought cycles will 
present additional stress on vegetation resources as well as the nature 
and extent of recovery to sage-grouse and its habitat.
    Overall, impacts from past grazing and rangeland management occur 
within localized areas throughout the Bi-State DPS's range (i.e., all 
PMUs, although it is more pronounced in some PMUs than others). These 
impacts have resulted in ongoing habitat degradation that significantly 
affect sage-grouse habitat indirectly and cumulatively in the Bi-State 
area, resulting in an overall reduction in aspects of habitat quality 
(e.g., fragmentation, lack of understory plants, increased presence of 
nonnative plant species), especially in the Pine Nut and Mount Grant 
PMUs. See the ``Grazing and Rangeland Management'' section of the 
Species Report for further discussion (Service 2013a, pp. 58-64).

Small Population Size and Population Structure

    Sage-grouse have low reproductive rates and high annual survival 
(Schroeder et al. 1999, pp. 11, 14; Connelly et al. 2000a, pp. 969-
970), resulting in a long recovery period due to slower potential or 
intrinsic population growth rates than is typical of other game birds. 
Also, as a consequence of their site fidelity to seasonal habitats 
(Lyon and Anderson 2003, p. 489), measurable population effects may lag 
behind negative habitat impacts (Wiens and Rotenberry 1985, p. 666). 
Sage-grouse populations have been described as exhibiting multi-annual 
fluctuations, meaning that some mechanism or combination of mechanisms 
is causing populations to fluctuate through time. In general, while 
various natural history characteristics would not limit sage-grouse 
populations across large geographic scales under historical conditions 
of extensive habitat, they may contribute to local population declines 
or extirpations when populations are small or when weather patterns, 
habitats, or mortality rates are altered (Factor E).
    The Bi-State DPS is comprised of approximately 43 active leks 
representing 4 to 8 relatively discrete populations (see Species 
Information, above, and the ``Current Range/Distribution and Population 
Estimates/Annual Lek Counts'' section of the Species Report (Service 
2013a, pp. 17-29)). Fitness and population size within the Bi-State DPS 
are strongly correlated and smaller populations are more subject to 
environmental and demographic stochasticity (Keller and Waller 2002, 
pp. 239-240; Reed 2005, p. 566). When coupled with mortality stressors 
related to human activity (e.g., infrastructure, recreation) and 
significant fluctuations in annual population size, long-term 
persistence of small populations (in general) is unlikely (Traill et 
al., 2010, entire). The Pine Nut PMU has the smallest number of sage-
grouse of all Bi-State area PMUs (usually fewer than 100 individuals, 
and ranging from 50 to 331 individuals as observed from data collected 
between 2002 and 2012 (Table 1, above), representing approximately 5 
percent of the DPS). However, each population in the Bi-State DPS is 
relatively small and below theoretical minimum threshold (as 
interpreted by sage-grouse experts and not statistically proven 
(Aldridge and Brigham 2003, p. 30; Garton et al. 2011, pp. 310, 374) 
for long-term persistence, as is the entire DPS on average (estimated 
1,833 to 7,416 individuals).
    Overall, small population size and population structure occur 
throughout the Bi-State DPS's range and have a significant impact on 
the DPS both currently and likely in the future. This is based on our 
understanding of the overall DPS population size and the apparent 
isolation among populations contained within the DPS, as inferred from 
demographic and genetic investigations (e.g., Casazza et al. 2009, 
entire; Oyler-McCance and Casazza 2011, p. 10; Tebenkamp 2012, p. 66). 
This, combined with the collective literature (Franklin and Frankham 
1998, entire; Lynch and Lande 1998, entire; Reed 2005, entire; Traill 
et al., 2010, entire) available that demonstrates both long-term 
population persistence and evolutionary potential, is challenged in 
small populations. Some literature (i.e., Franklin and Frankham 1998, 
entire; Traill et al. 2010, entire) suggest that greater than 5,000 
individuals are required for a population to have an acceptable degree 
of resilience in the face of environmental fluctuations and 
catastrophic events, and for the continuation of evolutionary process. 
According to the best available information presented in our analysis 
for the Bi-State area (Service 2013a, Table 1, pp. 20-31), the largest 
estimated populations (based on data from 2002 through 2012) are within 
the Bodie PMU (522 to 2,400 individuals) and South Mono PMU (859 to 
2,005 individuals). See additional discussion the ``Small Population 
Size and Population Structure'' section of the Species Report for 
further discussion (Service 2013a, pp. 105-110).

Urbanization and Habitat Conversion

    Historical and recent conversion of sagebrush habitat on private 
lands for agriculture, housing, and associated infrastructure (Factor 
A) within the Bi-State area has negatively affected sage-grouse 
distribution and population extent in the Bi-State DPS, thus limiting 
current and future conservation opportunities in the Bi-State area. 
These alterations to habitat have been most pronounced in the Pine Nut 
and Desert Creek-Fales PMUs and to a lesser extent the Bodie, Mount 
Grant, South Mono, and White Mountains PMUs. Although only 14 percent 
of suitable sage-grouse habitat occurs on private lands in the Bi-State 
area, and only a subset of that could potentially be developed, 
conservation actions on adjacent public lands could be compromised due 
to the high percentage (up to approximately 75 percent (Service 2013b, 
unpublished data)) of late brood-rearing habitat that

[[Page 64369]]

occurs on the private lands. Sage-grouse display strong site fidelity 
to traditional seasonal habitats and loss of specific sites (such as 
mesic meadow or spring habitats that typically occur on potentially 
developable private lands in the Bi-State area) can have pronounced 
population impacts (Connelly et al. 2000a, p. 970; Atamian et al. 2010, 
p. 1533). The influence of land development and habitat conversion on 
the population dynamics of sage-grouse is greater than a simple measure 
of spatial extent because of the indirect effects from the associated 
increases in human activity, as well as the disproportionate importance 
of some seasonal habitat areas, such as mesic areas for brood-rearing.
    Although not currently considered a significant threat, 
urbanization and habitat conversion is not universal across the Bi-
State area, but localized areas of impacts have been realized 
throughout the DPS's range, and additional future impacts are 
anticipated. At this time, we are concerned because of the high 
percentage of late brood-rearing habitat that could be impacted on 
these private lands. See the ``Urbanization and Habitat Conversion'' 
section of the Species Report for further discussion (Service 2013a, 
pp. 33-38).

Mining

    Surface and subsurface mining for mineral resources (gold, silver, 
aggregate, and others) results in direct loss of habitat if occurring 
in sagebrush habitats (Factor A). The direct impact from surface mining 
is usually greater than it is from subsurface mining, and habitat loss 
from both types of mining can be exacerbated by the storage of 
overburden (soil removed to reach subsurface resource) in otherwise 
undisturbed habitat. Sage-grouse and nests with eggs could be directly 
affected by crushing or vehicle collision (Factor E). Sage-grouse also 
could be impacted indirectly from an increase in human presence, land 
use practices, ground shock, noise, dust, reduced air quality, 
degradation of water quality and quantity, and changes in vegetation 
and topography (Moore and Mills 1977, entire; Brown and Clayton 2004, 
p. 2) (Factor E).
    Currently, operational surface and subsurface mining activities are 
not impacting the two largest (core) populations within the Bi-State 
DPS (although areas in multiple PMUs are open to mineral development, 
and mining operations are currently active in the Mount Grant, Bodie, 
South Mono, and Pine Nut PMUs, including some occupied habitat areas). 
In addition, existing inactive mine sites and potential future 
developments could impact important lek complexes and connectivity 
areas between, at minimum, the Bodie and Mount Grant PMUs. If 
additional mineral developments occur in sagebrush habitats within any 
PMU, this could negatively influence the distribution of sage-grouse 
and the connectivity among breeding complexes. There is potential for 
additional mineral developments to occur in the Bi-State area in the 
future based on known existing mineral resources and recent permit 
request inquiries with local land managers. While all six PMUs have the 
potential for mineral development, based on current land designations 
and past activity, the Pine Nut and Mount Grant PMUs are most likely to 
see new and additional activity.
    Overall, mining currently occurs in limited locations within four 
PMUs, including small-scale activities such as gold and silver 
exploration (Pine Nut, Bodie, and South Mono PMUs), and two open pit 
mines (Mount Grant PMU). These existing activities may be impacting one 
large lek in the Bodie PMU; four leks in the Mount Grant PMU, including 
the Aurora lek complex, which is the largest remaining lek in this PMU; 
and an undetermined number (although likely few) leks in the South Mono 
PMU. Additionally, new proposals being considered for mining activity 
in the Pine Nut PMU could, if approved, impact the single active lek 
remaining in the north end of the Pine Nut PMU. In general, potential 
exists for operations to expand both currently and into the future. By 
itself, mining is not considered a significant impact at this time, but 
is a concern based on existing impacts to sage-grouse and its habitat 
outside of the two largest (core) populations, the potential for mining 
activities to impact important lek complexes and connectivity areas 
between (at minimum) the Bodie and Mount Grant PMUs in the future, and 
the likely synergistic effects occurring when this threat is combined 
with other threats acting on the Bi-State DPS currently and in the 
future. See the ``Mining'' section of the Species Report for further 
discussion (Service 2013a, pp. 52-54).

Renewable Energy Development

    Renewable energy facilities (including geothermal facilities, wind 
power facilities, and solar arrays) require structures such as power 
lines and roads for construction and operation, and avoidance of such 
features by sage-grouse (Factor E) and other prairie grouse is 
documented (Holloran 2005, p. 1; Pruett et al. 2009, p. 6; see 
discussions regarding roads and power lines in the ``Infrastructure'' 
section of the Species Report (Service 2013a, pp. 40-47)). Renewable 
energy development and expansion could result in direct loss of habitat 
and indirect impacts affecting population viability (e.g., 
fragmentation and isolation) (Factor A).
    Minimal direct habitat loss has occurred in the Bi-State DPS due to 
renewable energy development, specifically from the only operational 
geothermal facility in the Bi-State area, which is within the South 
Mono PMU. However, the likelihood of additional renewable energy 
facility development, especially geothermal, in the Bi-State area is 
high based on current Federal leases. Inquiries by energy developers 
(geothermal, wind) have increased in the past several years (Dublino 
2011, pers. comm.). There is strong political and public support for 
energy diversification in Nevada and California, and the energy 
industry considers the available resources in the Bi-State area to 
warrant investment (Renewable Energy Transmission Access Advisory 
Committee 2007, p. 8). Based on our current assessment of development 
probability, the Mount Grant PMU and to a lesser degree the Desert 
Creek-Fales PMU are most likely to be negatively affected by renewable 
energy development. However, interest by developers of renewable energy 
changes rapidly, making it difficult to predict potential outcomes.
    Overall, renewable energy development has impacted one location in 
the South Mono PMU to date, and could potentially result in impacts 
throughout the Bi-State DPS's range in the future based on current 
leases. The best available data indicate that several locations in the 
Bi-State area (Pine Nut and South Mono PMUs) have suitable wind 
resources based on recent leasing and inquiries by facility developers 
(although no active leases currently occur), and it appears the Mount 
Grant PMU and to a lesser degree the Desert Creek-Fales PMU are likely 
to be most negatively affected. We are uncertain of the probability of 
seeing future inquires or development of wind energy in the Bi-State 
area. By itself, renewable energy development is not considered a 
significant impact at this time, but is a concern based on a 
combination of current activity, existing leases, the strong political 
and private support for energy diversification, the probability of new 
or expanding development in most likely a minimum of two PMUs, and the 
likely synergistic effects occurring when this threat is combined with 
other threats acting on the Bi-State DPS

[[Page 64370]]

currently and in the future. See the ``Renewable Energy Development'' 
section of the Species Report for further discussion (Service 2013a, 
pp. 54-58).

Disease

    Sage-grouse are hosts for a variety of parasites and diseases 
(Factor C) including macroparasitic arthropods, helminths (worms), and 
microparasites (protozoa, bacteria, viruses, and fungi) (Thorne et al. 
1982, p. 338; Connelly et al. 2004, pp. 10-4 to 10-7; Christiansen and 
Tate 2011, p. 114), which can have varying effects on populations. 
Connelly et al. (2004, p. 10-6) note that, while parasitic 
relationships may be important to the long-term ecology of sage-grouse, 
they have not been shown to be significant to the immediate population 
status across the range of the DPS. However, Connelly et al. (2004, p. 
10-3) and Christiansen and Tate (2011, p. 126) suggest that diseases 
and parasites may limit isolated sage-grouse populations as they 
interact with other demographic parameters such as reproductive success 
and immigration, and thus, the effects of emerging diseases require 
additional study.
    Viruses (such as coronavirus and WNv) are serious diseases that are 
known to cause death in grouse species, potentially influencing 
population dynamics (Petersen 2004, p. 46) (Factor C). Efficacy and 
transmission of WNv in sagebrush habitats is primarily regulated by 
environmental factors including temperature, precipitation, and 
anthropogenic water sources, such as stock ponds and coal-bed methane 
ponds that support mosquito vectors (Reisen et al. 2006, p. 309; Walker 
and Naugle 2011, pp. 131-132). WNv can be a threat to some sage-grouse 
populations, and its occurrence and impacts are likely underestimated 
due to lack of monitoring. The impact of this disease in the Bi-State 
DPS is likely currently limited by ambient temperatures that do not 
allow consistent vector and virus maturation. Predicted temperature 
increases associated with climate change may result in this threat 
becoming more consistently prevalent. We have no indication that other 
diseases or parasites are impacting the Bi-State DPS.
    Overall, multiple diseases have the potential to occur in the Bi-
State area, although WNv appears to be the only identified disease that 
warrants concern for sage-grouse in the Bi-State area. By itself it is 
not considered a significant impact at this time because it is 
currently limited by ambient temperatures that do not allow consistent 
vector and virus maturation. However, WNv remains a potential threat 
and concern for the future based on predicted temperature increases 
associated with climate change that could result in this threat 
becoming more consistently prevalent. See the disease discussion under 
the ``Disease and Predation'' section of the Species Report for further 
discussion (Service 2013a, pp. 93-99).

Predation

    Predation of sage-grouse as a food item is the most commonly 
identified cause of direct mortality during all life stages (Schroeder 
et al. 1999, p. 9; Connelly et al. 2000b, p. 228; Casazza et al. 2009, 
p. 45; Connelly et al. 2011, p. 65) (Factor C). However, sage-grouse 
have co-evolved with a variety of predators, and their cryptic plumage 
and behavioral adaptations have allowed them to persist (Schroeder et 
al. 1999, p. 10; Coates 2008, p. 69; Coates and Delehanty 2008, p. 635; 
Hagen 2011, p. 96). Predation of sage-grouse can occur at all life 
cycle stages. Within the Bi-State DPS, predation facilitated by habitat 
fragmentation (fences, power lines, and roads) and other human 
activities may be altering natural population dynamics in specific 
areas of the Bi-State DPS. Data suggest certain populations are 
exhibiting deviations in vital rates below those anticipated (Koloda et 
al. 2009, p. 1344; Sedinger et al. 2011. p. 324). For example, in Long 
Valley (South Mono PMU) nest predators associated with a county 
landfill may be lowering nesting success. In addition, low adult 
survival estimates for the Desert Creek-Fales PMU suggest predators may 
be influencing population growth there. However, we generally consider 
habitat alteration as the root cause of these results; teasing apart 
the interaction between predation rate and habitat condition is 
difficult.
    Overall, predation is currently known to occur throughout the Bi-
State DPS's range. It is facilitated by habitat fragmentation (fences, 
power lines, and roads) and other human activities that may be altering 
natural population dynamics in specific areas throughout the Bi-State 
DPS's range. By itself it is not considered a significant impact at 
this time, but is a concern currently and in the future based on data 
suggesting certain populations are exhibiting deviations in vital rates 
below those anticipated, including potential impacts to the Long Valley 
population, which is one of the two largest (core) populations for the 
Bi-State DPS. See the predation discussion under the ``Disease and 
Predation'' section of the Species Report for further discussion 
(Service 2013a, pp. 99-105).

Climate

    Climate change projections in the Great Basin suggest a hotter and 
stable-to-declining level of precipitation and a shift in precipitation 
events to the summer months; fire frequency is expected to accelerate, 
fires may become larger and more severe, and fire seasons will be 
longer (Brown et al. 2004, pp. 382-383; Neilson et al. 2005, p. 150; 
Chambers and Pellant 2008, p. 31; Global Climate Change Impacts in the 
United States 2009, p. 83). With these projections, drought (which is a 
natural part of the sagebrush ecosystem) is likely to be exacerbated. 
Drought reduces vegetation cover (Milton et al. 1994, p. 75; Connelly 
et al. 2004, p. 7-18), potentially resulting in increased soil erosion 
and subsequent reduced soil depths, decreased water infiltration, and 
reduced water storage capacity (Factor A). Drought can also exacerbate 
other natural events such as defoliation of sagebrush by insects 
(Factor A). These habitat component losses can result in declining 
sage-grouse populations due to increased nest predation and early brood 
mortality (Factor E) associated with decreased nest cover and food 
availability (Braun 1998, p. 149; Moynahan et al. 2007, p. 1781).
    Climate change will potentially act synergistically with other 
impacts to the Bi-State DPS, further diminishing habitat (Factor A) and 
increasing isolation of populations (Factor E), making them more 
susceptible to demographic and genetic challenges or disease. 
Predicting the impact of global climate change on sage-grouse 
populations is challenging due to the relatively small spatial extent 
of the Bi-State area. It is likely that vegetation communities will not 
remain static and the amount of sagebrush shrub habitat will decrease. 
Further, increased variation in drought cycles due to climate change 
will likely place additional stress on the populations. While sage-
grouse evolved with drought, drought has been correlated with 
population declines and has shown to be a limiting factor to population 
growth in areas where habitats have been compromised.
    In the Bi-State area, drought is a natural part of the sagebrush 
ecosystem, and we are unaware of any information to suggest that 
drought has influenced population dynamics of sage-grouse under 
historical conditions. There are known occasions, however, where 
reduced brood-rearing habitat conditions due to drought have resulted

[[Page 64371]]

in little to no recruitment within certain PMUs (Bodie and Pine Nut 
PMUs (Gardner 2009)). Given the relatively small and restricted extent 
of this population, if these conditions were to persist longer than the 
typical adult life span, drought could have significant ramifications 
on population persistence. Further, drought impacts on the sage-grouse 
may be exacerbated when combined with other habitat impacts that reduce 
cover and food (Braun 1998, p. 148).
    Based on the best available scientific and commercial information, 
the threat of climate change is not known to currently impact the Bi-
State DPS to such a degree that the viability of the DPS is at stake. 
However, while it is reasonable to assume the Bi-State area will 
experience vegetation changes into the future (as presented above), we 
do not know with precision the nature of these changes or ultimately 
the effect this will have on the Bi-State DPS. A recent analysis 
conducted by NatureServe, which incorporates much of the information 
presented above, suggests a substantial contraction of both sagebrush 
and sage-grouse range in the Bi-State area by 2060 (Comer et al. 2012, 
pp. 142, 145). Specifically (for example), this analysis suggests the 
current extent of suitable shrub habitat will decrease because a less 
suitable climate condition for sagebrush may improve suitability for 
woodland and drier vegetation communities, which are not favorable to 
the Bi-State DPS.
    In addition, it is reasonable to assume that changes in atmospheric 
carbon dioxide levels, temperature, precipitation, and timing of 
snowmelt will act synergistically with other threats (such as wildfire 
and invasive, nonnative species) to produce yet unknown but likely 
negative effects to sage-grouse populations in the Bi-State area. As a 
result of these predictions, it is reasonable to assume that the 
impacts of climate change (acting both alone and in concert with 
impacts such as disease and nonnative, invasive species) could be 
pervasive throughout the range of the Bi-State DPS, potentially 
degrading habitat to such a degree that all populations would be 
negatively affected. Therefore, given the scope and potential severity 
of climate change when interacting with other threats in the future, 
the overall impact of climate change to the Bi-State DPS at this time 
is considered moderate.
    Overall, this threat occurs (i.e., drought) and potentially occurs 
(i.e., climate change) throughout the Bi-State DPS's range. By itself 
it is not considered a significant impact at this time, but is a 
concern based on its scope and potential severity when interacting with 
other threats. See the ``Climate'' section of the Species Report for 
further discussion (Service 2013a, pp. 76-83).

Recreation

    Non-consumptive recreational activities (such as fishing, hiking, 
horseback riding, and camping as well as more recently popularized 
activities, such as OHV use and mountain biking) occur throughout the 
range of the greater sage-grouse, including throughout the Bi-State DPS 
area. These activities can degrade wildlife resources, water, and land 
by distributing refuse, disturbing and displacing wildlife, increasing 
animal mortality, and simplifying plant communities (Boyle and Samson 
1985, pp. 110-112) (Factor E). For example, disruption of sage-grouse 
during vulnerable periods at leks, or during nesting or early brood 
rearing, could affect reproduction and survival (Baydack and Hein 1987, 
pp. 537-538). In addition, indirect effects to sage-grouse from 
recreational activities include impacts to vegetation and soils, and 
the facilitation of the spread of invasive species (Factor A). Impacts 
caused by recreational activities may be affecting sage-grouse 
populations in the Bi-State area, and there are known localized habitat 
impacts.
    Overall, recreation occurs throughout the Bi-State DPS's range, 
although we do not have data on the severity of these impacts. By 
itself recreation is not considered a significant impact at this time, 
but some forms of recreation could become a concern based on 
anticipated increases of recreation use within the Bi-State area in the 
future. Populations of sage-grouse in the South Mono PMU are exposed to 
the greatest degree of pedestrian recreational activity, although they 
appear relatively stable at present. See the ``Recreation'' section of 
the Species Report for further discussion (Service 2013a, pp. 87-90).

Overutilization Impacts

    Potential overutilization impacts include recreational hunting 
(Factor B). Sage-grouse have not been commercially harvested in the Bi-
State area since the 1930s, and they are not expected to be 
commercially harvested in the future. Limited recreational hunting, 
based on the concept of compensatory mortality, was allowed across most 
of the DPS's range with the increase of sage-grouse populations by the 
1950s (Patterson 1952, p. 242; Autenrieth 1981, p. 11). In recent 
years, hunting as a form of compensatory mortality for upland game 
birds (which includes sage-grouse) has been questioned (Connelly et al. 
2005, pp. 660, 663; Reese and Connelly 2011, p. 111).
    Recreational hunting is currently limited in the Bi-State DPS and 
within generally accepted harvest guidelines. In the Nevada portion of 
the Bi-State area, NDOW regulates hunting of sage-grouse. Most hunting 
of sage-grouse in the Nevada portion of the Bi-State area is closed. 
NDOW closed the shotgun and archery seasons for sage-grouse in 1997, 
and the falconry season in 2003 (NDOW 2012b, in litt., p. 4). Hunting 
of sage-grouse may occur on tribal allotments located in the Pine Nut 
PMU where the Washoe Tribe of Nevada and California has authority. 
There are anecdotal reports of harvest by tribal members, but currently 
the Washoe Tribe Hunting and Fishing Commission does not issue harvest 
permits for greater sage-grouse (Warpea 2009). In the California 
portion of the Bi-State area, CDFW regulates hunting of sage-grouse. 
Hunting historically occurred and continues to occur in the Long Valley 
(South Mono PMU) and Bodie Hills (Bodie PMU) areas (known as the South 
Mono and North Mono Hunt Units, respectively). As a result of work by 
Gibson (1998, entire) and documented population declines in the Bi-
State DPS, CDFW has significantly reduced the number of permits issued 
(Service 2004, pp. 74-75; Gardner 2008).
    It is unlikely that the scope and severity of hunting impacts would 
act in an additive manner to natural mortality. In the Bi-State area, 
hunting is limited to such a degree that it is not apparently 
restrictive to overall population growth currently nor expected to 
become so in the future (CDFW 2012). Furthermore, we are unaware of any 
information to indicate that poaching or non-consumptive uses 
significantly impact Bi-State sage-grouse populations.
    Overall, sport hunting is currently limited and within generally 
accepted harvest guidelines. It is unlikely that hunting will ever 
reach levels again that would act in an additive manner to mortality. 
In the Bi-State area, hunting is limited to such a degree that it is 
not apparently restrictive to overall population growth. Furthermore, 
we are unaware of any information indicating that overutilization is 
significantly impacting sage-grouse populations in the Bi-State area. 
Given the current level and location of harvest, and expected continued 
management into the future, the impact this factor has on population 
persistence appears negligible. See the ``Overutilization Impacts'' 
section of the Species Report for further discussion (Service 2013a, 
pp. 83-87).

[[Page 64372]]

Scientific and Educational Uses

    Mortality and behavioral impacts to sage-grouse may occur as a 
result of scientific research activities (Factor B). Sage-grouse in the 
Bi-State area have been subject to several scientific research efforts 
over the past decade involving capture, handling, and subsequent 
banding or radio-marking. Much remains unknown about the impacts of 
research on sage-grouse population dynamics. However, the available 
information indicates that very few individuals are disturbed or die as 
a result of handling and marking. Therefore, the potential impacts 
associated with scientific and educational uses are considered 
negligible to the Bi-State DPS at this time and are expected to remain 
so into the future. See the ``Scientific and Educational Uses'' section 
of the Species Report for further discussion (Service 2013a, pp. 90-
92).

Pesticides and Herbicides

    Although few studies have examined the effects of pesticides to 
sage-grouse, direct mortality of sage-grouse as a result of pesticide 
applications (such as insecticides and pesticides applied via cropland 
spraying) has been documented (Blus et al. 1989, p. 1142; Blus and 
Connelly 1998, p. 23) (Factor E). In addition, herbicide applications 
can kill sagebrush and forbs important as food sources for sage-grouse 
(Carr 1968, as cited in Call and Maser 1985, p. 14) (Factor E). 
Although pesticides and herbicides can result in direct and indirect 
mortality of individual sage-grouse, we are unaware of information that 
would indicate that the current usage or residue from past applications 
in the Bi-State area is having negative impacts on populations, nor do 
we anticipate that the levels of use will increase in the future. 
Therefore, the potential impacts associated with pesticide and 
herbicide use are considered negligible to the Bi-State DPS at this 
time, and are expected to remain so into the future. See the 
``Pesticides and Herbicides'' section of the Species Report for further 
discussion (Service 2013a, pp. 110-112).

Contaminants

    Sage-grouse exposure to various types of environmental contaminants 
(concentrated salts, petroleum products, or other industrial chemicals) 
may occur as a result of agricultural and rangeland management 
practices, mining, energy development and pipeline operations, and 
transportation of hazardous materials along highways and railroads. In 
the Bi-State area, exposure to contaminants associated with mining is 
the most likely to occur (see Mining, above). Exposure to contaminated 
water in wastewater pits or evaporation ponds could cause mortalities 
or an increased incidence of sage-grouse disease (morbidity) (Factor 
E). Within the Bi-State DPS, sage-grouse exposure to potential 
contaminants is currently limited and most likely associated with a few 
existing mining operations in the Pine Nut and Mount Grant PMUs. Future 
impacts from contaminants (if present) would most likely occur in these 
same PMUs due to their potential for future mineral development; 
however, at this time we are unaware of information to indicate that 
contaminants are a problem currently or in the future. Therefore, the 
potential impacts associated with contaminants are considered 
negligible to the Bi-State DPS at this time, and are expected to remain 
so into the future. See the ``Contaminants'' section of the Species 
Report for further discussion (Service 2013a, p. 113).

Existing Regulatory Mechanisms

    Bi-State sage-grouse conservation has been addressed in some local, 
State, and Federal plans, laws, regulations, and policies. An 
examination of regulatory mechanisms (Factor D) for both the Bi-State 
DPS and sagebrush habitats reveals that some mechanisms exist that 
either provide or have the potential to provide a conservation benefit 
to the Bi-State DPS, such as (but not limited to): Various County or 
City regulations outlined in General Plans; Nevada State Executive 
Order, dated September 26, 2008; Federal Land Policy and Management Act 
of 1976 (43 U.S.C. 1701 et seq.), which requires development of 
resource management plans for BLM lands; National Forest Management Act 
(16 U.S.C. 1600 et seq.), which requires land and resource management 
plans for U.S. Forest Service lands; and the Sikes Act Improvement Act 
of 1997 (16 U.S.C. 670a et seq.), which requires integrated natural 
resources management plans for military installations (see ``Existing 
Regulatory Mechanisms'' section of the Species Report (Service 2013a, 
pp. 113-127)). However, supporting documents for some of these are many 
years old and have not been updated, calling into question their 
consistency with our current understanding of the DPS's life-history 
requirements, reaction to disturbances, and the DPS's conservation 
needs. In addition, the conservation actions that have been implemented 
to date according to the existing regulatory mechanisms vary across the 
Bi-State area, although managing agencies are beginning to work more 
collaboratively across jurisdictional boundaries. The degree to which 
these existing regulatory mechanisms conserve the DPS is largely 
dependent on current and future implementation, which can vary 
depending on factors such as the availability of staff and funding.
    The Bi-State area is largely comprised of federally managed lands. 
Existing land use plans, as they pertain to sage-grouse, are typically 
general in nature and afford relatively broad latitude to land 
managers. This latitude influences whether measures available to affect 
conservation of greater sage-grouse are incorporated during decision 
making, and implementation is prone to change based on managerial 
discretion. While we recognize the benefits of management flexibility, 
we also recognize that such flexibility with regard to implementation 
of land use plans can result in land use decisions that negatively 
affect the Bi-State DPS. Therefore, we consider most existing Federal 
mechanisms offer limited certainty as to managerial direction 
pertaining to sage-grouse conservation, particularly as the Federal 
mechanisms relate to addressing the threats that are significantly 
impacting the Bi-State DPS (i.e., nonnative and native, invasive 
plants; wildfire and altered wildfire regime; infrastructure; and 
rangeland management), and other impacts (such as, but not limited to, 
renewable energy development). Regulations in some counties identify 
the need for natural resource conservation and attempt to minimize 
impacts of development through zoning restrictions, but to our 
knowledge these regulations neither preclude development nor do they 
provide for monitoring of the loss of sage-grouse habitats. Similarly, 
State laws and regulations are general in nature and provide 
flexibility in implementation, and do not provide specific direction to 
State wildlife agencies, although they can occasionally afford 
regulatory authority over habitat preservation (e.g., creation of 
habitat easements and land acquisitions).

Synergistic Impacts

    Many of the impacts described here and in the accompanying Species 
Report may cumulatively or synergistically affect the Bi-State DPS 
beyond the scope of each individual stressor. For example, the future 
loss of additional significant sagebrush habitat due to wildfire in the 
Bi-State DPS is anticipated because of the intensifying synergistic 
interactions among fire, people and infrastructure, invasive

[[Page 64373]]

species, and climate change. Predation may also increase as a result of 
the increase in human disturbance and development. These are just two 
scenarios of the numerous threats that are likely acting cumulatively 
to further contribute to the challenges faced by many Bi-State DPS 
populations now and into the future.
    In summary, we have determined that the threats causing the most 
significant impacts on the Bi-State DPS currently and in the future are 
urbanization and habitat conversion (Factor A); infrastructure (Factors 
A and E); mining (Factors A and E); renewable energy development and 
associated infrastructure (Factors A and E); grazing (Factors A, C, and 
E); nonnative and native, invasive species (e.g., cheatgrass, pinyon-
juniper encroachment) (Factors A and E); wildfires and altered fire 
regime (Factors A and E); and small population size and population 
structure (Factor E). Other threats impacting the DPS across its range 
currently and in the future, but to a lesser degree than those listed 
above, include climate change, including drought (Factors A and E); 
recreation (Factors A and E); and disease and predation (Factor B). 
Existing regulatory mechanisms are inadequate to protect the Bi-State 
DPS against these threats (Factor D). Numerous threats are likely 
acting cumulatively to further contribute to the challenges faced by 
several Bi-State DPS populations now and into the future.

Determination

    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to the Bi-State DPS. We considered the five factors identified in 
section 4(a)(1) of the Act in determining whether the Bi-State DPS 
meets the Act's definition of an endangered species (section 3(6)) or 
threatened species (section 3(20)).
    Multiple threats impacting the Bi-State DPS and its habitat are 
interacting synergistically and resulting in increasingly fragmented 
habitat for this long-lived habitat specialist. Woodland encroachment 
is causing significant, measurable habitat loss throughout the range of 
the Bi-State DPS. While techniques to address this habitat impact are 
available and being implemented, the scale of such efforts is currently 
inadequate. Woodlands have expanded by an estimated 20,234 to 60,703 ha 
(50,000 to 150,000 ac) over the past decade in the Bi-State area, but 
woodland treatments have only been implemented on 6,475 ha (16,000 ac) 
(Service 2013b, unpublished data). Meanwhile, the existing and 
potential near-term impacts of cheatgrass and wildfire are steadily 
increasing and will likely escalate further with climate change, 
providing conditions that will likely result in rapid loss of 
significant quantities of suitable habitat. Similarly, impacts from 
infrastructure, urbanization, and recreation on already fragmented 
habitat and small populations within the Bi-State area are expected to 
gradually increase.
    Taken cumulatively, the ongoing and future habitat-based impacts in 
all PMUs will likely act to fragment and further isolate populations 
within the Bi-State DPS. Current or future impacts caused by wildfire, 
urbanization, grazing, infrastructure, recreation, woodland succession, 
and climate change will likely persist and interact in the near-term 
and most significantly influence the Pine Nut, Desert Creek-Fales, and 
Mount Grant PMUs. The Bodie and South Mono PMUs are larger and more 
stable, and generally have fewer habitat pressures. The level of 
impacts within the White Mountains PMU remains largely unknown; the 
population is likely relatively small, and it is on the southern 
periphery of the DPS. While the South Mono, White Mountains, and Pine 
Nut PMUs appear to be largely isolated entities, the Bodie PMU 
interacts with the Mount Grant PMU and to a lesser degree the Desert 
Creek-Fales PMU, and the potential erosion of habitat suitability in 
these latter PMUs may influence the population dynamics and persistence 
of the breeding population in the Bodie PMU.
    When existing and future impacts such as predation, disease, 
recreation, and climate change (vegetation changes, drought) are 
considered in conjunction with other habitat stressors, it appears that 
preservation of sage-grouse populations in the northern half of the Bi-
State area will be difficult. Given the Bi-State DPS's relatively low 
rate of growth and strong site fidelity, recovery and repopulation of 
extirpated areas will be slow and infrequent, making future recovery of 
extirpated populations within the Bi-State area challenging. 
Translocation of sage-grouse is difficult, and given the limited number 
of source individuals within the range of the Bi-State DPS, 
translocation efforts, if needed, will be logistically complicated. 
Within the next several decades, it is possible that sage-grouse in the 
Bi-State area will persist in two of the potentially eight populations 
in the Bi-State area, specifically two populations located in the South 
Mono PMU (Long Valley) and the Bodie PMU (Bodie Hills). These two 
populations could also become increasingly further isolated from one 
another as a result of the potential for loss of habitat connectivity 
due to exurban development on private lands in the Bodie PMU, as well 
as future habitat fragmentation from potential pinyon-juniper 
encroachment, wildfire, and cheatgrass impacts. If further isolated, it 
is likely that both these populations would be at greater risk to 
stochastic events.
    In summary, we believe the Bi-State DPS is likely to become 
endangered within the foreseeable future throughout all or a portion of 
its range based on the following:
    (1) A reduction of historical range, and a reduction in habitat of 
greater than 50 percent with a concurrent reduction from historical 
abundance of greater than 50 percent. The current trend in habitat loss 
is slow and expected to continue at this slow pace, further reducing 
range and habitat. The current trend in abundance is unknown, but it is 
expected to gradually decrease for at least five of the six PMUs. This 
is of critical concern to the Bi-State DPS because fluctuations in the 
four small, less secure PMUs are likely to result in extirpations and 
loss of population redundancy within the DPS.
    (2) All six PMUs include poor connectivity within and among PMUs; 
the current trend in connectivity is slowly deteriorating, and this is 
of critical concern to the Bi-State DPS because it increases the risk 
of loss of individual PMUs via stochastic events.
    (3) Remaining habitat is increasingly fragmented in all six PMUs; 
the current trend in habitat fragmentation is a slow increase.
    (4) Trends for most leks are unknown, especially on periphery of 
the Bi-State DPS's range. This is of critical concern to the DPS 
because there is an existing pattern of historical extirpations of 
peripheral populations for the sage-grouse in the Bi-State area. Well 
known leks in the core of the DPS's range that have remained protected 
over time and have long-term monitoring data suggest stable population 
trends.
    (5) The size of the Bi-State population is generally below 
theoretical minimums for long-term persistence reported in literature; 
populations are especially small and increasingly isolated outside the 
two largest (core) populations in the South Mono and Bodie PMUs. Recent 
extensive and intensive surveys for the Bi-State population range-wide 
did not significantly increase the known number of leks or individuals.
    (6) Sage grouse are long-lived habitat specialists particularly 
susceptible to

[[Page 64374]]

habitat fragmentation caused by multiple, interacting threats, and 
there are multiple threats to habitat interacting synergistically 
throughout the Bi-State population.
    (7) Pinyon-juniper tree encroachment has caused significant habitat 
reduction; the current trend in pinyon-juniper encroachment is 
increasing, but mitigated partially by ongoing woodland removal 
projects.
    (8) Urbanization is documented to have caused significant habitat 
reduction; the current trend in urbanization is increasing but slowly.
    (9) Infrastructure development (e.g., roads, power lines, fences, 
communication towers) is documented to have caused significant habitat 
reductions (although some impacts are being mitigated by ongoing 
removal of potential avian predator roost sites and modification or 
removal of fencing); the current trend in this threat is increasing but 
slowly.
    (10) The fire-invasive species cycle destroys native plant 
communities and sage grouse habitat; the current trend in sagebrush 
habitat loss from fire and invasive species is increasing.
    (11) Small population size and meta-population isolation increases 
risk to sage-grouse; the current trend in the Bi-State area for small, 
isolated populations is gradually increasing. This is of critical 
concern to the Bi-State DPS because fluctuations in the four small, 
less secure PMUs are likely to result in extirpations and loss of 
population redundancy within the DPS.
    (12) Predation can locally impact sage-grouse in specific 
circumstances, such as that occurring in the South Mono PMU near a 
landfill, which is likely impacting one of the two largest, core 
populations for the Bi-State DPS; however, the current trend in 
predation is stable.
    (13) There is uncertainty over long-term threats from climate 
change and its effects on other factors like invasive species; it is 
probable that the threat of climate change will increase in the 
foreseeable future.
    The Act defines an endangered species as any species that is ``in 
danger of extinction throughout all or a significant portion of its 
range'' and a threatened species as any species ``that is likely to 
become endangered throughout all or a significant portion of its range 
within the foreseeable future.'' We consider foreseeable future in this 
proposed rule to be 30 years based on the probability of population 
persistence analyzed and described by Garton et al. (2011, entire), 
which conducted a trend analysis for the populations that occur in the 
Bodie, Desert Creek-Fales, and South Mono PMUs. Garton et al. (2011, 
entire) conclude that the probability of declining below a quasi-
extinction threshold (as defined by some scientific experts to be fewer 
than 50 males per population) was 15 percent over the next 30 years for 
the populations in Bodie and Desert Creek-Fales PMUs, and 0 percent for 
the populations in the South Mono PMU. In other words, populations in 
the Bodie, Desert Creek-Fales, and South Mono PMUs have a probability 
of persistence between 85 and 100 percent over the next 30 years. Data 
quality was inadequate or unavailable for the populations within the 
Pine Nut, Mount Grant, and White Mountains PMUs for Garton's (2011, 
entire) analysis for population persistence. Because populations for 
these PMUs harbor fewer individuals and thus smaller populations than 
those analyzed by Garton et al. (2011, entire), we expect the 
populations in these areas within the next 30 years to have an 
undetermined lower probability of persistence. Data quality was 
inadequate or unavailable on a longer time frame for all units.
    Based on the analysis presented in the Species Report (Service 
2013a, entire), and our discussion and rationale provided above, we 
find that the Bi-State DPS is not presently in danger of extinction 
throughout all of its range, but that it is likely to become endangered 
throughout all of its range in the foreseeable future. First, we find 
that the Bi-State DPS is not presently in danger of extinction based on 
the following:
    (1) The Bi-State DPS populations will likely persist in multiple 
areas within the range of the DPS into the foreseeable future (as 
defined above). Predictions indicate the Bodie, Desert Creek-Fales, and 
South Mono PMU populations have an 85 (Bodie and Desert Creek-Fales 
PMUs) to 100 (South Mono PMU) percent chance of persistence over the 
next 30 years. The Pine Nut, Mount Grant, and White Mountains 
populations have an undetermined lesser percent chance of persistence.
    (2) The best available data for the Bi-State DPS indicate stable or 
increasing trends for the two largest populations that represent the 
central core of the DPS.
    (3) Because the Bi-State DPS is characterized by multiple 
populations, some of which are likely to remain in place within the 
foreseeable future, these populations provide sufficient redundancy 
(multiple populations distributed across the landscape), resiliency 
(capacity for a species to recover from periodic disturbance), and 
representation (range of variation found in a species) such that the 
Bi-State DPS is not at immediate risk of extinction (i.e., within the 
foreseeable future). Although data are unavailable for accurately 
predicting persistence of populations within three of the six PMUs 
within the foreseeable future, our evaluation of the best available 
information leads us to believe that only one population (i.e., the 
smallest population within the Pine Nut PMU) might not persist into the 
foreseeable future.
    Second, we find that the Bi-State DPS is likely to become 
endangered throughout all of its range in the foreseeable future based 
on the following:
    (1) Multiple threats are significantly impacting all of the Bi-
State DPS populations (i.e., infrastructure; grazing and rangeland 
management; nonnative and native, invasive plants; wildfire and altered 
fire regime; and small population size).
    (2) Additive and synergistic effects due to the threats listed 
above as well as other multiple threats (i.e., urbanization and habitat 
conversion, mining, renewable energy development, climate (including 
drought), recreation, disease, and predation) are likely to continue 
and increase in the future. Of significant concern are the compounding 
impacts to the Bi-State DPS's habitat that are interacting and 
resulting in increasingly fragmented habitat, especially from pinyon-
juniper encroachment throughout the DPS's range.
    (3) Current or future impacts identified above will likely persist 
and interact in the near-term, most significantly affecting the 
populations and habitat in the Pine Nut, Desert Creek-Fales, and Mount 
Grant PMUs (while the level of impacts within the White Mountains PMU 
remains largely unknown). Thus, the potential exists for one or more of 
the populations in these PMUs to be lost or impacted to such a degree 
that recovery would be significantly challenged. The two largest (core) 
populations (i.e., the South Mono PMU (Long Valley) and the Bodie PMU 
(Bodie Hills)) could also become isolated from one another as a result 
of the potential for loss of habitat connectivity due to exurban 
development on private lands in the Bodie PMU, as well as future 
habitat fragmentation from potential pinyon-juniper encroachment, 
wildfire, and cheatgrass impacts. Once further isolated, it is likely 
that both core PMUs would be at greater risk to stochastic events.

[[Page 64375]]

    Therefore, on the basis of the best available scientific and 
commercial information, we propose listing the Bi-State DPS of greater 
sage-grouse as threatened in accordance with sections 3(20) and 4(a)(1) 
of the Act.
    The Bi-State DPS proposed for listing in this rule is highly 
restricted in its range and the threats occur throughout its range. 
Therefore, we assessed the status of the Bi-State DPS throughout its 
entire range. The threats to the survival of the DPS occur throughout 
its range and are not restricted to any particular significant portion 
of that range (see Significant Portion of the Range, below). 
Accordingly, our assessment and proposed determination applies to the 
Bi-State DPS throughout its entire range.

Significant Portion of the Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is endangered or threatened throughout all or a 
significant portion of its range. In determining whether a species is 
endangered or threatened in a significant portion of its range, we 
first identify any portions of the range of the species that warrant 
further consideration. The range of a species can theoretically be 
divided into portions an infinite number of ways. However, there is no 
purpose to analyzing portions of the range that are not reasonably 
likely to be both (1) significant and (2) endangered or threatened. To 
identify only those portions that warrant further consideration, we 
determine whether there is substantial information indicating that: (1) 
The portions may be significant, and (2) the species may be in danger 
of extinction there or likely to become so within the foreseeable 
future. In practice, a key part of this analysis is whether the threats 
are geographically concentrated in some way. If the threats to the 
species are essentially uniform throughout its range, no portion is 
likely to warrant further consideration. Moreover, if any concentration 
of threats applies only to portions of the species' range that are not 
significant, such portions will not warrant further consideration.
    If we identify portions that warrant further consideration, we then 
determine whether the species is endangered or threatened in these 
portions of its range. Depending on the biology of the species, its 
range, and the threats it faces, the Service may address either the 
significance question or the status question first. Thus, if the 
Service considers significance first and determines that a portion of 
the range is not significant, the Service need not determine whether 
the species is endangered or threatened there. Likewise, if the Service 
considers status first and determines that the species is not 
endangered or threatened in a portion of its range, the Service need 
not determine if that portion is significant. However, if the Service 
determines that both a portion of the range of a species is significant 
and the species is endangered or threatened there, the Service will 
specify that portion of the range as endangered or threatened under 
section 4(c)(1) of the Act.
    We evaluated the current range of the Bi-State DPS to determine if 
there is any apparent geographic concentration of threats. The Bi-State 
DPS is highly restricted in its range and the threats occur to varying 
degrees and in various combinations throughout its range. We considered 
the potential threats due to nonnative and native, invasive plants; 
wildfire and an altered fire regime; infrastructure (including roads, 
power lines, fences, communication towers, and landfills); grazing and 
rangeland management; small population size; urbanization and habitat 
conversion; mining; renewable energy development; disease; predation; 
climate change (including drought); recreation; overutilization; 
scientific and educational uses; pesticides and herbicides; 
contaminants; and potential inadequacy of existing regulatory 
mechanisms. However, we found no concentration of threats but rather 
that various combinations of multiple threats are present throughout 
the range of the Bi-State DPS.
    Given the sage-grouse populations in the Pine Nut, Mount Grant, and 
White Mountains PMUs are now and will continue to be most at risk from 
the various threats acting upon the birds and their habitat (see the 
foreseeable future discussion above in the Determination section), we 
identify this portion of the range for further consideration. The Pine 
Nut, Mount Grant, and (to the extent known) White Mountains PMUs 
comprise the least amount of birds and leks within the range of the Bi-
State DPS, with the Pine Nut PMU harboring the least number of birds 
and leks overall.
    We analyzed whether threats in these three PMUs (i.e., Pine Nut, 
Mount Grant, and White Mountains PMUs) rise to the level such that the 
sage-grouse is currently in danger of extinction, or ``endangered,'' in 
these three PMUs combined. We determined that none of the threats 
within these three PMUs either independently or collectively, is 
believed to be of the level that the threats have reduced, destroyed, 
or fragmented sagebrush habitat such that the DPS is currently in 
danger of extinction. We note that data do indicate that impacts from 
nonnative and native, invasive species, and thus the threat of 
wildfire, in the Pine Nut PMU are more extensive than in the Mount 
Grant and White Mountains PMUs. While these threats continue in the 
Pine Nut PMU and may increase, monitoring continues to document sage-
grouse in some historically occupied areas within the PMU. Also, the 
Pine Nut PMU currently holds the least number of birds and leks of all 
populations, and the potential loss of this already small population is 
not expected to impact the Bi-State DPS to the extent that the 
remaining two PMUs with the smallest populations (i.e., Mount Grant and 
White Mountains PMUs) or the DPS as a whole would be considered in 
danger of extinction.
    Because multiple sage-grouse are still observed through monitoring 
activities, and from one to eight active leks are present within each 
of these three smaller populations (within the Pine Nut, Mount Grant, 
and White Mountains PMUs), we do not believe the combined sage-grouse 
populations in all three of these PMUs are currently in danger of 
becoming extinct. Additionally, the threats acting upon these small 
populations are not geographically concentrated and exist in all six 
PMUs throughout the range of the Bi-State DPS. Rather, the combination 
of the small population size, isolation due to fragmented habitat, 
peripheral locations, and the presence of several threats to the 
populations in the Pine Nut, Mount Grant, and White Mountains PMUs 
makes these populations more vulnerable than the populations in the 
Bodie, Desert Creek-Fales, and South Mono PMUs but not to the degree 
that they are in danger of extinction.
    In conclusion, we find that the overall scope and significance of 
threats affecting the Bi-State DPS are essentially uniform throughout 
the DPS's range, indicating no other portion of the range of the DPS 
warrants further consideration of possible endangered status under the 
Act. Therefore, we find there is no significant portion of the Bi-State 
DPS's range that may warrant a different status.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness, and 
conservation by Federal, State, Tribal, and local

[[Page 64376]]

agencies; private organizations; and individuals. The Act encourages 
cooperation with the States and requires that recovery actions be 
carried out for all listed species. The protection required by Federal 
agencies and the prohibitions against certain activities are discussed, 
in part, below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species so that they no longer need the protective measures of 
the Act. Subsection 4(f) of the Act requires the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning includes the development of a recovery outline 
shortly after a species is listed and preparation of a draft and final 
recovery plan. The recovery outline guides the immediate implementation 
of urgent recovery actions and describes the process to be used to 
develop a recovery plan. Revisions of the plan may be done to address 
continuing or new threats to the species, as new substantive 
information becomes available. The recovery plan identifies site-
specific management actions that set a trigger for review of the five 
factors that control whether a species remains endangered or may be 
downlisted or delisted, and methods for monitoring recovery progress. 
Recovery plans also establish a framework for agencies to coordinate 
their recovery efforts and provide estimates of the cost of 
implementing recovery tasks. Recovery teams (composed of species 
experts, Federal and State agencies, nongovernmental organizations, and 
stakeholders) are often established to develop recovery plans. When 
completed, the recovery outline, draft recovery plan, and the final 
recovery plan will be available on our Web site (http://www.fws.gov/endangered), or from our Nevada Fish and Wildlife Office (see FOR 
FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    If this species is listed, funding for recovery actions will be 
available from a variety of sources, including Federal budgets, State 
programs, and cost share grants for non-Federal landowners, the 
academic community, and nongovernmental organizations. In addition, 
pursuant to section 6 of the Act, the States of Nevada and California 
would be eligible for Federal funds to implement management actions 
that promote the protection or recovery of the Bi-State DPS. 
Information on our grant programs that are available to aid species 
recovery can be found at: http://www.fws.gov/grants.
    Although the Bi-State DPS of greater sage-grouse is only proposed 
for listing under the Act at this time, please let us know if you are 
interested in participating in recovery efforts for this species. 
Additionally, we invite you to submit any new information on this 
species whenever it becomes available and any information you may have 
for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as an 
endangered or threatened species and with respect to its critical 
habitat, if any is designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any action that is likely to jeopardize the 
continued existence of a species proposed for listing or result in 
destruction or adverse modification of proposed critical habitat. If a 
species is listed subsequently, section 7(a)(2) of the Act requires 
Federal agencies to ensure that activities they authorize, fund, or 
carry out are not likely to jeopardize the continued existence of the 
species or destroy or adversely modify its critical habitat. If a 
Federal action may affect a listed species or its critical habitat, the 
responsible Federal agency must enter into consultation with the 
Service.
    Federal agency actions within the species' habitat that may require 
conference or consultation or both as described in the preceding 
paragraph include management and any other landscape-altering 
activities on Federal lands administered by the USFS, BLM, or 
Department of Defense (Hawthorne Army Depot and Marine Corps' Mountain 
Warfare Training Center); issuance of section 404 Clean Water Act (33 
U.S.C. 1251 et seq.) permits by the U.S. Army Corps of Engineers; and 
construction and maintenance of roads or highways by the Federal 
Highway Administration.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered and 
threatened wildlife. The prohibitions of section 9(a)(2) of the Act, 
codified at 50 CFR 17.21 for endangered wildlife, in part, make it 
illegal for any person subject to the jurisdiction of the United States 
to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, 
capture, or collect; or to attempt any of these), import, export, ship 
in interstate commerce in the course of commercial activity, or sell or 
offer for sale in interstate or foreign commerce any listed species. 
Under the Lacey Act (18 U.S.C. 42-43; 16 U.S.C. 3371-3378), it is also 
illegal to possess, sell, deliver, carry, transport, or ship any such 
wildlife that has been taken illegally. Certain exceptions apply to 
agents of the Service and State conservation agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered and threatened wildlife species under certain 
circumstances. Regulations governing permits are codified at 50 CFR 
17.22 for endangered species, and at 17.32 for threatened species. With 
regard to endangered wildlife, a permit must be issued for the 
following purposes: for scientific purposes, to enhance the propagation 
or survival of the species, and for incidental take in connection with 
otherwise lawful activities.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable at 
the time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of a proposed 
listing on proposed and ongoing activities within the range of species 
proposed for listing. The following activities could potentially result 
in a violation of section 9 of the Act; this list is not comprehensive:
    (1) Unauthorized collecting, handling, possessing, selling, 
delivering, carrying, or transporting of the species, including import 
or export across State lines and

[[Page 64377]]

international boundaries, except for properly documented antique 
specimens of these taxa at least 100 years old, as defined by section 
10(h)(1) of the Act.
    (2) Actions that would result in the loss of sagebrush overstory 
plant cover or height. Such activities could include, but are not 
limited to, the removal of native shrub vegetation by any means for any 
development or infrastructure construction project; direct conversion 
of sagebrush habitat to agricultural land use; habitat improvement or 
restoration projects involving mowing, brush-beating, disking, plowing, 
chemical treatments, or prescribed burning; and prescribed burning and 
fire suppression activities.
    (3) Actions that would result in the loss or reduction in native 
herbaceous understory plant cover or height, a reduction or loss of 
associated arthropod communities, or ground disturbance that would 
result in removal or depletion of surface and ground water resources 
that impact brood-rearing habitat. Such activities could include, but 
are not limited to: Livestock grazing; application of herbicides or 
insecticides; prescribed burning and fire suppression activities; 
seeding of nonnative plant species that would compete with native 
species for water, nutrients, and space; groundwater pumping; and water 
diversions for irrigation and livestock watering.
    (4) Actions that would result in the Bi-State DPS's avoidance of an 
area during one or more seasonal periods. Such activities could 
include, but are not limited to, the construction of vertical 
structures such as power lines, fences, communication towers, and 
buildings; motorized and non-motorized recreational use; and activities 
such as mining or well drilling, operation, and maintenance, which 
would entail significant human presence, noise, and infrastructure.
    Questions regarding whether specific activities would constitute a 
violation of section 9 of the Act should be directed to the Nevada Fish 
and Wildlife Office for activities in Nevada and to the Ventura Fish 
and Wildlife Office for activities in California (see FOR FURTHER 
INFORMATION CONTACT).

Proposed Special Rule

    Under section 4(d) of the Act, the Secretary of the Interior has 
discretion to issue such regulations as she deems necessary and 
advisable to provide for the conservation of threatened species. Our 
implementing regulations (50 CFR 17.31) for threatened wildlife 
generally incorporate the prohibitions of section 9 of the Act for 
endangered wildlife, except when a ``special rule'' is promulgated 
under section 4(d) of the Act with respect to a particular threatened 
species. In such a case, the general prohibitions at 50 CFR 17.31 would 
not apply to that species; instead, the special rule would define the 
specific take prohibitions and exceptions that would apply, and that we 
consider necessary and advisable to conserve, that particular 
threatened species. The Secretary also has the discretion to prohibit 
by regulation with respect to a threatened species any act prohibited 
by section 9(a)(1) of the Act. Exercising this discretion, which has 
been delegated to the Service by the Secretary, the Service has 
developed general prohibitions that are appropriate for most threatened 
wildlife at 50 CFR 17.31 and exceptions to those prohibitions at 50 CFR 
17.32.
    For the Bi-State DPS, we have determined that a 4(d) special rule 
may be appropriate. This 4(d) special rule is proposed for take 
incidental to activities conducted pursuant to either: (1) Conservation 
programs developed by or in coordination with the State agency or 
agencies responsible for the management and conservation of fish and 
wildlife within Nevada and California, or their agents, with a clear 
mechanism for application to lands occupied by the Bi-State DPS; or (2) 
routine livestock ranching activities conducted in a manner congruous 
with maintaining the local ecological integrity. Both conservation 
programs and maintenance of large blocks of intact habitat provide a 
conservation benefit to the Bi-State DPS. When making a determination 
as to whether a program would be covered pursuant to this 4(d) rule, we 
would consider the following:
    (1) Whether the program comprehensively addresses all the threats 
affecting the Bi-State DPS within the program area;
    (2) Whether the program establishes objective, measurable 
biological goals and objectives for population and habitat necessary to 
ensure a net conservation benefit, and provides the mechanisms by which 
those goals and objectives will be achieved;
    (3) Whether the program administrators demonstrate the capability 
and funding mechanisms for effectively implementing all elements of the 
conservation program, including enrollment of participating landowners, 
monitoring of program activities, and enforcement of program 
requirements;
    (4) Whether the program employs an adaptive management strategy to 
ensure future program adaptation as necessary and appropriate; and
    (5) Whether the program includes appropriate monitoring of 
effectiveness and compliance.
    As discussed elsewhere in this proposed rule, the Bi-State DPS 
faces many threats. Foremost among these is the continuing loss and 
degradation of habitat, which further fragment and isolate already 
small populations. The Service proposes this 4(d) special rule in 
recognition of the significant conservation planning efforts occurring 
throughout the range of the Bi-State DPS for the purpose of reducing or 
eliminating threats affecting the DPS. Multiple partners (including 
private citizens, nongovernmental organizations, and Federal and State 
agencies) are engaged in conservation efforts across the entire range 
of the DPS on public and private lands, and these efforts have provided 
and will continue to provide a conservation benefit to the DPS. Two 
recent examples of conservation programs in the Bi-State area are the 
Bi-State Action Plan, which was finalized on March 15, 2012, and 
addresses the entire range of the DPS on public and private lands; and 
the NRCS's Sage-Grouse Initiative (SGI). Efforts associated with both 
programs will facilitate conservation benefits in the Bi-State area, 
and these programs will continue to provide conservation benefits to 
the DPS into the future. Currently, existing programs do not yet fully 
address the suite of factors contributing to cumulative habitat loss 
and fragmentation, which is our primary concern across the Bi-State 
DPS's range. However, the Bi-State Action Plan, if completely refined 
and fully implemented, may result in the removal of threats to the Bi-
State DPS so that the protections of the Act may no longer be 
warranted, especially in combination with other actions, including 
Federal land management agencies' ongoing efforts to ensure regulatory 
mechanisms are adequate for the DPS.
    Conservation efforts occurring across the range of the Bi-State DPS 
include, but are not limited to:
     Limiting infrastructure development and human disturbance 
in sage-grouse habitat;
     Removing woodland plant species that encroach upon 
sagebrush habitats absent sufficient disturbance to maintain the 
sagebrush habitat;
     Managing wildfire and invasive species to limit the 
occurrence of large, high-intensity fire, and fire that facilitates the 
dominance of invasive species such as cheatgrass;

[[Page 64378]]

     Protecting private lands as sagebrush habitat through 
purchase or conservation easement;
     Managing feral horses in a manner that maintains natural 
ecosystem functions and avoids facilitating the dominance of 
cheatgrass;
     Managing and restoring wet meadow and upland habitats to 
provide important functions for all life stages of sage-grouse;
     Protecting against risks associated with small population 
size;
     Monitoring and addressing disease and predation threats; 
and
     Conducting research and monitoring actions, and adapting 
management accordingly.
    The proposed criteria presented here are meant to encourage the 
continued development and implementation of a coordinated and 
comprehensive effort to improve habitat conditions and the status of 
the Bi-State DPS across its entire range. For the Service to approve 
coverage of a conservation effort under this proposed 4(d) special 
rule, the program would have to provide a net conservation benefit to 
the Bi-State DPS populations. Conservation, as defined in section 3(3) 
of the Act, means ``to use and the use of all methods and procedures 
which are necessary to bring any endangered species or threatened 
species to the point at which the measures provided pursuant to the Act 
are no longer necessary.'' The program would also have to be 
periodically reviewed by the Service and determined to continue to 
provide a net conservation benefit to the Bi-State DPS. As a result of 
this proposed provision, the Service expects that rangewide 
conservation actions would be implemented with a high level of 
certainty that the program will lead to the long-term conservation of 
the Bi-State DPS.
    Conservation programs associated with restoring and improving 
natural ecological conditions have the potential to affect the Bi-State 
DPS. Some activities have the potential to positively affect the DPS 
(e.g., woodland and meadow treatments intended to maintain habitat 
condition in the absence of natural disturbance); however, some of 
these activities have the potential to negatively affect the DPS 
depending on when and where the activities are conducted (e.g., direct 
take from conducting research activities).
    While section 9 of the Act provides general prohibitions on 
activities that would result in take of a threatened species, the 
Service recognizes that the conservation efforts listed above, even 
those with the potential to incidentally take Bi-State DPS, may be 
necessary to restore the entire range of the DPS to a naturally 
functioning condition. The Service also recognizes that it is, in the 
long term, a benefit to the Bi-State DPS to maintain, as much as 
possible, those aspects of the landscape that can aid in the recovery 
of the DPS. We believe this proposed 4(d) special rule would further 
conservation of the DPS by enabling restoration and research activities 
and by minimizing further subdivision of privately owned lands with the 
intent to restore, understand, and protect the entire range of the DPS 
to an intact and naturally functioning state.

Conservation Activities To Be Exempted by the Proposed Special Rule

Infrastructure Development and Human Disturbance
    In some instances, it may be necessary to install various 
infrastructure features (such as, for example, fences to improve 
livestock management or a similar barrier to limit access by people 
into sensitive locations) in order to obtain management objectives that 
benefit the Bi-State DPS. While these developments may negatively 
affect the Bi-State DPS by providing perches for predators, increasing 
collision risk, and/or causing disturbance during installation, they 
have the potential to provide a net benefit to conservation by 
protecting sensitive habitats, such as upland meadows and strutting 
grounds. In these instances when habitat conservation is the goal, the 
Service recognizes the need to install small infrastructure features 
and is therefore including these activities in this proposed special 
rule. The Service encourages limiting the installation of new 
infrastructure in habitat used by the Bi-State DPS. Further, in 
instances when placement of these features outside of occupied habitat 
cannot occur because it will not achieve management objectives, we 
recommend the impact posed by these features be minimized to the 
greatest extent possible. This may include timing construction during 
periods of sage-grouse absence, using alternative fencing methods 
(e.g., let-down or electric fencing), marking fences with visual 
markers, and micro-sighting features to minimize impact.
Woodland Treatments
    Pinyon-juniper woodlands are a native vegetation community 
dominated by pinyon pine and various juniper species. These woodlands 
can encroach upon, infill, and eventually replace sagebrush habitat. 
The root cause of this conversion from shrubland to woodland is 
debatable but variously influenced by livestock grazing, fire 
suppression that has altered the natural fire disturbance regime, and 
changes in climate and levels of atmospheric carbon dioxide that 
influence sites' suitability to tree establishment and tree 
competitiveness. Some portions of the Bi-State DPS's range are also 
impacted by Pinus jeffreyi (Jeffrey pine) encroachment. Regardless of 
the type of woodland encroachment, sage-grouse response is negative, 
and forest or woodland encroachment into occupied sage-grouse habitat 
reduces (and likely eventually eliminates) sage-grouse use (Commons et 
al. 1999, p. 238; Doherty et al. 2008, p. 187; Freese 2009, pp. 84-85, 
89-90).
    Treatment of sites currently supporting trees with the intent of 
restoring the location to a condition dominated by a sagebrush 
vegetation community may potentially negatively affect the Bi-State DPS 
by disturbing or displacing birds utilizing adjacent habitats or by 
disturbing remaining shrub and herbaceous vegetation and soils. The 
Service recognizes that it is, in the long-term, a benefit to the DPS 
to maintain, as much as possible, those locations currently trending 
toward a woodland vegetation community in a shrub-dominated condition. 
The Service also recognizes that, in the course of conducting this 
conservation program, take of Bi-State DPS may occur. However, the 
Service believes the net benefit gained through these actions would 
provide significant conservation benefit for the DPS, and is therefore 
including these activities in this proposed special rule. The Service 
recommends that potential impacts caused by these activities be 
minimized by conducting actions during periods when birds are not 
present and by using methods that minimize understory disturbance 
(e.g., chainsaw) and incorporate appropriate measures to improve native 
understory vegetation composition.
Fire and Nonnative Invasive Species Management
    Both lightning-caused and human-caused fire in sagebrush ecosystems 
is one of the primary risks to the greater sage-grouse, especially as 
part of the positive feedback loop between nonnative, invasive annual 
grasses and fire frequency. As the replacement of native perennial 
bunchgrass communities by invasive annuals is a primary contributing 
factor to increasing fire frequencies in the sagebrush ecosystem, every 
effort must be made to retain and improve this native plant community.
    Fire management activities (i.e., preventing, suppressing, and 
restoring) may have a beneficial effect (e.g.,

[[Page 64379]]

limiting amount of sagebrush habitat burned), neutral effect (e.g., 
staging equipment outside of suitable habitat), or negative effect 
(e.g., removal of sagebrush to create fire breaks) on the Bi-State DPS. 
In order to prevent or minimize the spread of wildfires in rangelands, 
there may be a need to construct fire breaks or conduct treatments of 
invasive species. If these activities occur in sagebrush habitat, the 
potential for take of the Bi-State DPS may occur due to loss of habitat 
or displacement of sage-grouse. However, the Service recognizes the 
critical importance of fire management in native shrublands, and is 
therefore including activities associated with wildfire prevention, 
suppression, and restoration in this proposed special rule.
Conservation Easement
    A conservation easement is an agreement between a private land 
conservation organization or government entity to constrain (in a 
specific location) the exercise of rights otherwise held by a landowner 
so as to achieve a conservation objective. This tool is being employed 
in the Bi-State area, and, typically, the rights constrained are 
associated with development and water. For example, a landowner could 
agree not to subdivide their property for housing development and not 
sell their water rights for offsite use.
    Private lands in the Bi-State area are important to the Bi-State 
DPS due to the high percentage (up to approximately 75 percent (Service 
2013b, unpublished data)) of late brood-rearing habitat that occurs on 
private lands, and the importance of maintaining these lands in a 
naturally functioning condition for the conservation of the DPS. The 
Service recognizes the critical importance of maintaining large, 
contiguous patches of sagebrush habitat for the Bi-State DPS and is 
including activities associated with procuring conservation easements 
in this proposed special rule.
Feral Horse Management
    Feral horse presence may negatively affect sagebrush vegetation 
communities and habitat suitability for the Bi-State DPS. Feral horses 
have utilized sagebrush communities since they were brought to North 
America at the end of the 16th century (Wagner 1983, p. 116; Beever 
2003, p. 887). Horses are generalists, but seasonally their diets can 
be almost entirely grasses (Wagner 1983, pp. 119-120). Areas without 
horse grazing can have 1.9 to 2.9 times more grass cover and higher 
grass density (Beever et al. 2008, p. 176), whereas sites with horse 
grazing have less shrub cover and more fragmented shrub canopies 
(Beever et al. 2008, p. 176), less plant diversity, altered soil 
characteristics, and 1.6 to 2.6 times greater abundance of cheatgrass 
(Beever et al. 2008, pp. 176-177). Therefore, feral horse presence may 
negatively affect sagebrush vegetation communities and habitat 
suitability for sage-grouse by decreasing grass cover, fragmenting 
shrub canopies, altering soil characteristics, decreasing plant 
diversity, and increasing the abundance of invasive cheatgrass.
    In order to minimize the impact feral horses have on the local 
landscape, land-managing agencies (on occasion) remove and relocate 
feral horses. These activities may potentially take individual sage-
grouse within the range of the Bi-State DPS. For example, helicopters 
used during feral horse round-up and removal activities may disturb and 
displace sage-grouse in the immediate vicinity of these activities. 
However, the Service recognizes the importance of maintaining feral 
horse numbers at appropriate levels such that degradation of habitat is 
not realized. Therefore, we are including this conservation program in 
this proposed special rule.
Meadow and Upland Restoration
    Meadow, riparian, and other mesic habitats are an important 
seasonal component in the annual life cycle of sage-grouse. These 
locations are used by sage-grouse during the summer and fall, and are a 
critical component in population dynamics as they play a significant 
role in facilitating recruitment of juvenile birds into the population. 
Loss and degradation of these habitats has occurred across the range of 
the Bi-State DPS and restoration of these areas will be of significant 
importance affecting the conservation of the DPS.
    A variety of methods (e.g., mechanical, chemical) may be employed 
in the act of restoring these types of habitats depending on the 
associated cause of degradation. For example, the hydrologic function 
of a site may be compromised due to down-cutting of stream or creek 
beds and a meadow (in the absence of disturbance) may become dominated 
by shrubs and lose the herbaceous diversity critical to sage-grouse. 
Restoration activities associated with these examples may require use 
of heavy machinery, mowing, or use of herbicides to remove shrubs. 
These activities may potentially take individual sage-grouse within the 
Bi-State DPS through disturbance or displacement of birds adjacent to 
the activity. However, the Service recognizes the importance of 
restoring and maintaining mesic sites such that loss of habitat is not 
realized, and we are therefore including this conservation program in 
this proposed special rule.
    Similarly, restoration efforts for the Bi-State DPS targeting 
upland sites may require methods that could displace or disturb sage-
grouse adjacent to the activity. These activities may include 
restoration efforts following a fire, or restoration in areas degraded 
by grazing or recreational use. However, as with other restoration 
activities, the Service recognizes the long-term benefit of these 
actions to the conservation of the DPS and is including this 
conservation program in this proposed special rule.
Small Population Maintenance and Scientific Research and Monitoring
    Within the range of the Bi-State DPS, there are populations of 
sage-grouse for which persistence may be challenged, in part due to the 
limited number of sage-grouse present. In order to improve redundancy 
and distributional extent across the range of the Bi-State DPS, it may 
become necessary to capture and relocate sage-grouse in order to 
repopulate an extirpated location or to augment a small population. The 
capture and relocation of sage-grouse may potentially take individuals 
due to capture-related mortality. However, the Service recognizes the 
importance of multiple, well-distributed populations across the range 
of the Bi-State DPS in order to ensure the conservation of the DPS. 
Therefore, we consider the potential conservation benefit gained 
through this effort, should it become necessary, to be a net gain and 
are therefore including this conservation effort in this proposed 
special rule.
    Similarly, scientific research and monitoring activities of the Bi-
State DPS have the potential to take sage-grouse through capture and 
handling mortalities or through disturbing or displacing breeding sage-
grouse on leks. During a 3-year study in the Bi-State area in which 145 
sage-grouse were radio-marked, the deaths of 4 birds were attributed to 
handling (Casazza et al. 2009, p. 45). Across the West, the mortality 
rate associated with capture, handling, and subsequent marking was 
estimated at 2.7 percent in 2005 (see 75 FR 13910 on March 23, 2010, 
pp. 13965-13966). While direct mortality of sage-grouse can occur, the 
Service considers the level of impact to be negligible and further 
considers the information gained through these efforts to be a 
significant benefit to the conservation of the DPS. We are therefore 
including scientific

[[Page 64380]]

investigations (including annual lek monitoring activity) in this 
proposed special rule.
Routine Livestock Ranching and Agricultural Activities
    Livestock ranching is a dynamic process, which requires the ability 
to adapt to changing environmental and economic conditions. However, 
many of the activities essential to successful ranching are considered 
routine and are undertaken at various times and places throughout the 
year as need dictates. Although this proposed special rule is not 
intended to provide a comprehensive list of those ranching activities 
considered routine, examples include (but are not limited to): Grazing 
management; planting, harvest, and rotation of forage crops; 
maintenance and construction of corrals, ranch buildings, fences, and 
roads; discing of field sections for fire prevention management; 
control of noxious weeds by prescribed fire or by herbicides; placement 
of mineral supplements and water developments; and removal of trees in 
rangelands.
    Routine activities associated with livestock ranching have the 
potential to affect the Bi-State DPS. Some routine activities have the 
potential to positively affect the DPS (e.g., maintaining irrigated 
pasture, brood-rearing habitats), while other activities may be neutral 
with respect to the DPS (e.g., constructing ranch buildings in areas 
unsuitable for sage-grouse foraging or movement). However, other 
routine ranching activities have the potential to negatively affect the 
DPS depending on when and where the activities are conducted (e.g., 
direct take from harvesting pasture hay).
    While section 9 of the Act provides general prohibitions on 
activities that would result in take of a threatened species, the 
Service recognizes that routine ranching activities, even those with 
the potential to incidentally take the Bi-State DPS, may be necessary 
components of livestock operations. The Service also recognizes that it 
is, in the long term, a benefit to the Bi-State DPS to maintain (as 
much as possible) those aspects of the ranching landscape that can aid 
in the recovery of the DPS. We believe this proposed special rule would 
further conservation of the Bi-State DPS by discouraging further 
conversions of the ranching landscape into habitats entirely unsuitable 
for the DPS, and encouraging landowners and ranchers to continue 
managing the remaining landscape in ways that meet the needs of their 
operation and that provide suitable habitat for the Bi-State DPS.

Routine Livestock Ranching Activities That Would Be Exempted by the 
Proposed Special Rule

    The activities mentioned above and discussed below are merely 
examples of routine ranching activities that would be exempted by the 
proposed special rule. Routine activities may vary from one ranching 
operation to another, and vary with changing environmental and economic 
conditions. Routine ranching activities include the activities 
described below and any others that a rancher may undertake to maintain 
a sustainable ranching operation. Our premise for not attempting to 
regulate routine activities is that, ultimately, we believe that a 
rancher acting in the best interest of maintaining a sustainable 
ranching operation also is providing incidental but significant 
conservation benefits for the Bi-State DPS.
    In this proposed special rule, we describe and recommend best 
management practices for carrying out routine ranching activities in 
ways that would minimize take of the Bi-State DPS, but we would not 
require these practices. Overall, we believe that minimizing the 
regulatory restrictions on routine ranching activities would increase 
the likelihood that more landowners would voluntarily allow the Bi-
State DPS to persist or increase on their private lands, and that the 
benefits of maintaining a rangeland landscape where sage-grouse can 
coexist with a ranching operation far outweigh the impacts to the DPS 
from such activities.
    Sustainable Livestock Grazing. The act of grazing livestock on 
rangelands in a sustainable manner (i.e., is consistent with and 
maintains local ecological conditions) has the potential for take of 
the Bi-State DPS. Grazing livestock in areas occupied by sage-grouse 
may cause nest destruction or abandonment, or influence nesting success 
by removing cover surrounding a nest site (Hagen et al. 2007, p. 46; 
Coates et al. 2008, pp. 425-426). Unmanaged livestock grazing 
(overgrazing) also compacts soils, decreases herbaceous abundance, 
increases soil erosion, and increases the probability of invasion of 
nonnative, invasive plant species (Braun 1998, p. 147; Dobkin et al. 
1998, p. 213; Reisner et al. 2013, p. 10). Livestock management and 
associated infrastructure (such as water developments and fencing) can 
degrade important nesting and brood-rearing habitat for the Bi-State 
DPS, as well as facilitate the spread of WNv.
    By contrast, sustainable grazing can be neutral or even beneficial 
to the Bi-State DPS in several ways. Grazing by sheep and goats has 
been used strategically in sage-grouse habitat to control invasive 
weeds (Merritt et al. 2001, p. 4; Olsen and Wallander 2001, p. 30; 
Connelly et al. 2004, p. 7-49) and woody plant encroachment (Riggs and 
Urness 1989, p. 358). Furthermore, Evans (1986, p. 67) reported that 
sage-grouse used grazed meadows significantly more during late summer 
because grazing had stimulated the regrowth of forbs, and Klebenow 
(1982, p. 121) noted that sage-grouse used openings in meadows created 
by cattle. Also, in the absence of natural meadow habitat, sage-grouse 
utilize irrigated pasture during late summer/brood-rearing period; 
these created habitats are of significant importance to population 
persistence in the Nevada portion of the Bi-State area.
    The greatest benefit to the Bi-State DPS provided by working 
ranches is likely found in the retention of large, contiguous blocks of 
native shrubland. Frequently, as ranch properties are sold, these 
native shrublands are divided and converted to nonagricultural uses, 
such as low density housing developments. This has and continues to 
occur in the Bi-State area, most notably in the Pine Nut and Desert 
Creek-Fales PMUs. Therefore, we consider the potential benefits of 
sustainable livestock grazing, according to normally acceptable and 
established levels of intensity to prevent overgrazing, to provide 
justification for including this routine activity in this proposed 
special rule.
Planting, Harvest, and Rotation of Forage Crops
    In the Bi-State area, irrigated pasture associated with livestock 
operations is the principle form of agricultural land conversions. 
Producers plant and harvest these sites periodically from early summer 
to early fall. During the course of the activities, take of the Bi-
State DPS may potentially occur if sage-grouse are killed by farm 
machinery or disturbed and displaced from the field. However, in some 
portions of the Bi-State DPS's range, these irrigated pastures play an 
important role in the sage-grouse's annual life cycle as these 
locations, at times, act as brood-rearing habitat in the absence of 
natural meadows. Therefore, the Service considers maintenance of these 
sites a net benefit for the DPS, and we are therefore including 
activities associated with maintaining pastures in this proposed 
special rule.
    As these irrigated pastures may be used by young-of-the-year sage-
grouse within the Bi-State area, and potentially at a time when birds 
are still incapable of flight, we recommend that timing of harvest 
activity be delayed to the

[[Page 64381]]

greatest extent practicable until such time as the sage-grouse are more 
mobile. In practice, this period of time within the Bi-State area is 
from approximately mid-May to late June. Further, we suggest that 
harvesting occur from the inside of the field working outward to ensure 
that sage-grouse have the ability to move away from machinery and into 
adjacent cover.
Maintenance and Construction of Corrals, Ranch Buildings, Fences, and 
Roads
    Maintenance and construction of infrastructure associated with 
routine livestock practices can potentially negatively affect the Bi-
State DPS and may potentially lead to take of the DPS by direct 
mortality due to collision or through facilitating predation and the 
spread of nonnative, invasive species. However, these activities may 
also prove beneficial by improving operations and ultimately range 
condition. Therefore, the Service is including activities associated 
with the maintenance and construction of small infrastructure features 
in this proposed special rule.
    The Service encourages limiting the installation of new 
infrastructure in habitat used by the Bi-State DPS. Further, in 
instances when placement of these features outside of the DPS's 
occupied habitat cannot occur because it will not achieve ranch 
objectives, we recommend the impact posed by these features be 
minimized to the greatest extent possible. This may include (but it not 
limited to): Timing construction during periods of sage-grouse absence; 
using alternative fencing methods (e.g., let-down or electric fencing); 
marking fences with visual markers; micro-sighting features to minimize 
impact; and conducting routine monitoring and treatment of noxious 
weeds.
Control of Noxious Weeds
    Controlling noxious weeds through a variety of methods (i.e., 
chemical, mechanical, or fire) can be an important action affecting 
conservation of the Bi-State DPS because these nonnative species can 
alter sagebrush habitats and render them unsuitable to sage-grouse. 
However, these actions may potentially cause take of the DPS by 
disturbance, displacement, or direct mortality. Regardless, the Service 
considers the benefit gained through active weed suppression to 
outweigh potential negative consequences to the Bi-State DPS, and is 
therefore including these activities in this proposed special rule.
    The Service encourages these activities to be minimized to the 
greatest extent practicable, but, in instances when the action is 
considered necessary, and depending on the method used, appropriate 
minimization measures may be employed. This may include altering timing 
of application to minimize disturbance or probability of prescribed 
fire escape. Further, effort should be taken to minimize collateral 
damage to shrubs and desirable herbaceous species when applying 
herbicide(s).
Mineral Supplements and Water Developments
    Mineral supplements and water developments can negatively affect 
the Bi-State DPS's habitat through facilitating the spread of 
nonnative, invasive species; facilitating disease transmission; or 
potentially causing direct mortality of sage-grouse through drowning. 
However, these developments may also have a beneficial effect on the 
DPS by dispersing livestock use and ultimately improving range 
condition. Therefore, the Service is including this activity in this 
proposed special rule.
    The Service encourages that mineral supplements and water 
developments be minimized to the greatest extent practicable to achieve 
ranch objectives, but, in instances when the action is considered 
necessary, appropriate minimization and maintenance measures may be 
employed. These should include maintaining native meadows surrounding 
springs, placing wildlife escape ramps in watering facilities to 
prevent drowning, and periodically treating noxious weeds to prevent 
establishment. Furthermore, it may be prudent to periodically change 
the location of these facilities in conjunction with weed treatments to 
minimize the extent to which a single location is overly used and 
ultimately degraded.
Additional Routine Livestock Ranching Activities
    Additional routine ranching activities may include woodland 
treatment to improve degraded shrub habitats or the creation of fire 
breaks to prevent the loss of home or property. As discussed above, 
these activities can negatively affect the Bi-State DPS and may cause 
take of the DPS. However, the Service considers these actions to 
produce a net gain to the conservation of the DPS, when conducted in an 
appropriate manner, and we are therefore including these activities in 
this proposed special rule.
    This provision of the proposed 4(d) special rule for agricultural 
activities would promote conservation of the Bi-State DPS by 
encouraging landowners and ranchers to continue managing the remaining 
landscape in ways that meet the needs of their operation while 
simultaneously providing suitable habitat for the DPS.
Provisions of the Proposed Special Rule
    Section 4(d) of the Act states that ``the Secretary shall issue 
such regulations as [s]he deems necessary and advisable to provide for 
the conservation'' of species listed as a threatened species. 
Conservation is defined in the Act as, ``to use and the use of all 
methods and procedures which are necessary to bring any endangered 
species or threatened species to the point at which the measures 
provided pursuant to [the] Act are no longer necessary.'' Additionally, 
section 4(d) of the Act states that the Secretary, ``may by regulation 
prohibit with respect to any threatened species any act prohibited 
under section 9(a)(1).''
    The courts have recognized the extent of the Secretary of the 
Interior's discretion under this standard to develop rules that are 
appropriate for the conservation of a species. For example, the 
Secretary may find that it is necessary and advisable not to include a 
taking prohibition, or to include a limited taking prohibition. See 
Alsea Valley Alliance v. Lautenbacher, 2007 U.S. Dist. Lexis 60203 (D. 
Or. 2007); Washington Environmental Council v. National Marine 
Fisheries Service, and 2002 U.S. Dist. Lexis 5432 (W.D. Wash. 2002). In 
addition, as affirmed in State of Louisiana v. Verity, 853 F.2d 322 
(5th Cir. 1988), the rule need not address all the threats to the 
species. As noted by Congress when the Act was initially enacted, 
``once an animal is on the threatened list, the Secretary has an almost 
infinite number of options available to him with regard to the 
permitted activities for those species. [S]he may, for example, permit 
taking, but not importation of such species,'' or the Secretary may 
choose to forbid both taking and importation but allow the 
transportation of such species, as long as the measures will ``serve to 
conserve, protect, or restore the species concerned in accordance with 
the purposes of the Act'' (H.R. Rep. No. 412, 93rd Cong., 1st Sess. 
1973).

[[Page 64382]]

    Section 9 prohibitions make it illegal for any person subject to 
the jurisdiction of the United States to take (including harass, harm, 
pursue, hunt, shoot, wound, kill, trap, capture, or collect; or attempt 
any of these), import or export, ship in interstate commerce in the 
course of commercial activity, or sell or offer for sale in interstate 
or foreign commerce any wildlife species listed as an endangered 
species, without written authorization. It also is illegal under 
section 9(a)(1) of the Act to possess, sell, deliver, carry, transport, 
or ship any such wildlife that is taken illegally. Prohibited actions 
consistent with section 9 of the Act are outlined for threatened 
species at 50 CFR 17.31(a) and (b). We are proposing a 4(d) special 
rule for the Bi-State DPS that would apply all of the prohibitions set 
forth at 50 CFR 17.31(a) and (b) to the Bi-State DPS with the 
exceptions detailed above and summarized below.
    First, we propose that none of the provisions at 50 CFR 17.31 would 
apply to actions associated with a conservation program developed by or 
in coordination with the State agency or agencies responsible for the 
management and conservation of fish and wildlife within the affected 
State(s), or their agent(s), and that the Service determines provides a 
net conservation benefit for the Bi-State DPS, as described earlier in 
this Proposed Special Rule section. The proposed 4(d) special rule 
identifies a set of criteria the Service proposes to use to evaluate 
such programs. Among additional considerations, the approval criteria 
would require that the program provide the Bi-State DPS populations and 
habitat targets necessary to ensure a net conservation benefit for the 
DPS across the program area, in addition to mechanisms for achieving 
those targets. In this way, actions in the program would ultimately 
contribute to the conservation of the DPS. If this provision of the 
proposed special rule is adopted, the Service expects that rangewide 
conservation actions would be implemented with a high level of 
certainty that the program would lead to the long-term conservation of 
the Bi-State DPS.
    Second, we also propose that none of the provisions in 50 CFR 17.31 
would apply to routine livestock ranching activities conducted in a 
sustainable manner, as described earlier in this Proposed Special Rule 
section. According to the proposed listing rule, the primary factors 
supporting the proposed threatened status for the Bi-State DPS are the 
impacts of cumulative habitat loss and fragmentation. Allowing the 
continuation of existing ranching and agricultural operations 
consistent with these criteria would encourage landowners to continue 
managing the remaining landscape in ways that meet the needs of their 
operations while simultaneously providing suitable habitat for the Bi-
State DPS.
    Based on the rationale above, the provisions included in this 
proposed 4(d) special rule are necessary and advisable to provide for 
the conservation of the Bi-State DPS. Nothing in this proposed 4(d) 
special rule changes in any way the recovery planning provisions of 
section 4(f) of the Act, consultation requirements under section 7 of 
the Act, or the ability of the Service to enter into partnerships for 
the management and protection of the Bi-State DPS.

Required Determinations

Clarity of the Rule

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

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be 
prepared in connection with listing a species as an endangered or 
threatened species under the Endangered Species Act. We published a 
notice outlining our reasons for this determination in the Federal 
Register on October 25, 1983 (48 FR 49244).

References Cited

    A complete list of references cited in this rulemaking is available 
on the Internet at http://www.regulations.gov under Docket No. FWS-R8-
ES-2013-0072 and upon request from the Nevada Fish and Wildlife Office 
(see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this proposed rule are the staff members of 
the Service's Nevada Fish and Wildlife Office and Region 8 Regional 
Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--[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, unless 
otherwise noted.

0
2. Amend Sec.  17.11(h) by adding an entry for ``Sage-grouse, greater 
(Bi-State DPS)'' to the List of Endangered and Threatened Wildlife in 
alphabetical order under BIRDS to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 64383]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
              Birds
 
                                                                      * * * * * * *
Sage-grouse, greater (Bi-State     Centrocercus          U.S.A. (CA, NV)....  Entire.............  T               ...........           NA     17.41(d)
 DPS).                              urophasianus.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

0
3. Amend Sec.  17.41 by adding paragraph (d) to read as follows:


Sec.  17.41  Special rules--birds.

    (d) Bi-State DPS of Greater Sage-grouse (Centrocercus 
urophasianus).
    (1) Prohibitions. Except as noted in paragraphs (d)(2)(i) and 
(d)(2)(ii) of this section, all prohibitions and provisions of 
Sec. Sec.  17.31 and 17.32 apply to the Bi-State distinct population 
segment (DPS) of greater sage-grouse.
    (2) Exemptions from prohibitions. Incidental take of the Bi-State 
DPS of greater sage-grouse will not be considered a violation of 
section 9 of the Act if the take results from any of the following:
    (i) Implementation of a comprehensive conservation program for the 
Bi-State DPS of greater sage-grouse that:
    (A) Was developed by or in coordination with State agency or 
agencies, or their agent(s), responsible for the management and 
conservation of fish and wildlife within the affected State(s).
    (B) Is intended to conserve the Bi-State DPS of greater sage-grouse 
by:
    (1) Addressing threats affecting the DPS within the program area;
    (2) Implementing objective, measurable biological goals and 
objectives for the populations and habitat necessary to ensure a net 
conservation benefit, and providing the mechanisms by which those goals 
and objectives would be achieved;
    (3) Ensuring the establishment of funding mechanisms to effectively 
implement all elements of the conservation program;
    (4) Employing an adaptive management strategy to ensure future 
program adaptation as necessary and appropriate; and
    (5) Including appropriate monitoring of effectiveness and 
compliance.
    (C) Is reviewed by the Service as meeting the objectives for which 
it was originally established under paragraph (d)(2)(i)(B) of this 
section.
    (ii) Conservation practices on privately owned lands that:
    (A) Are carried out in accordance with a conservation plan that 
meets the requirements of paragraph (d)(2)(i) of this section; and
    (B) Involve the following types of conservation activities:
    (1) Installing infrastructure features that allow land managers to 
meet management objectives that benefit the Bi-State DPS of greater 
sage-grouse.
    (2) Treating woodland sites that have encroached upon, infilled, 
and replaced sagebrush habitat, and restoring the location to a 
condition dominated by a sagebrush vegetation community.
    (3) Conducting fire management activities (i.e., preventing, 
suppressing, and restoring) to prevent or minimize the spread of 
wildfires in rangelands.
    (4) Conducting activities that constrain development and water 
rights related to procuring conservation easements.
    (5) Conducting land management activities that minimize the impact 
of feral horses on the local landscape in the Bi-State area.
    (6) Conducting restoration and maintenance activities (e.g., 
mechanical or chemical treatments) in meadow, riparian, and other mesic 
habitats that are used by the Bi-State DPS of greater sage-grouse to 
facilitate recruitment of juvenile greater sage-grouse, as well as 
restoration activities in upland sites that are degraded by grazing or 
recreational use.
    (7) Performing population maintenance activities, and conducting 
scientific research and monitoring. These activities may include 
disturbing, displacing, or capturing and relocating greater sage-grouse 
in order to repopulate an extirpated location.
    (8) Conducting routine livestock ranching and agricultural 
activities (i.e., sustainable livestock grazing) that adapt to changing 
environmental and economic conditions and provide a long-term 
conservation benefit to the Bi-State DPS of greater sage-grouse by 
maintaining (as much as possible) those aspects of the ranching 
landscape that can aid in the recovery of the Bi-State DPS of greater 
sage-grouse.
    (9) Planting, harvesting, and rotating forage crops in irrigated 
pastures associated with livestock operations, specifically in 
locations where these irrigated pastures serve as brood-rearing habitat 
for greater sage-grouse in the absence of natural meadows.
    (10) Maintaining and constructing infrastructure (i.e., corrals, 
ranch buildings, fences, and roads) associated with routine livestock 
practices when these actions provide a long-term conservation benefit 
to the Bi-State DPS of greater sage-grouse by improving operations and 
ultimately range conditions, thereby aiding in the recovery of the Bi-
State DPS of greater sage-grouse.
    (11) Controlling noxious weeds (i.e., nonnative plant species) 
through a variety of methods (i.e., chemical, mechanical, or fire) to 
prevent or minimize alteration of sagebrush habitats, which can render 
affected areas unsuitable for the Bi-State DPS of greater sage-grouse.
    (12) Installing water developments and using mineral supplements 
(only when necessary) by employing appropriate minimization and 
maintenance measures. Exemption applies only when installing these 
water development features or using mineral supplements results in 
long-term maintenance of native meadows surrounding springs, avoidance 
of sage-grouse drowning by placing wildlife escape ramps in watering 
facilities, periodic treatment of noxious weeds to prevent 
establishment, or relocation of these facilities to minimize the extent 
to which a single location becomes overly used and degraded.

[[Page 64384]]

    (13) Conducting routine ranching activities not described in this 
paragraph (d)(2)(ii)(B) that include woodland treatments to improve 
degraded shrub habitats or create fire breaks, which in turn prevent 
the loss of home or property, and produce a net gain to the 
conservation of the Bi-State DPS of greater sage-grouse.
* * * * *

    Dated: September 17, 2013.
Daniel M. Ashe,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2013-24307 Filed 10-25-13; 8:45 am]
BILLING CODE 4310-55-P