[Federal Register Volume 78, Number 245 (Friday, December 20, 2013)]
[Rules and Regulations]
[Pages 76995-77005]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-30164]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket Nos. FWS-R1-ES-2012-0017; FWS-R1-ES-2013-0012; 4500030113]
RIN 1018-AX72; 1018-AZ54


Endangered and Threatened Wildlife and Plants; Threatened Status 
for Eriogonum codium (Umtanum Desert Buckwheat) and Physaria douglasii 
subsp. tuplashensis (White Bluffs Bladderpod) and Designation of 
Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule; revision.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service, affirm our 
determination to list Eriogonum codium (Umtanum desert buckwheat) and 
Physaria douglasii subsp. tuplashensis (White Bluffs bladderpod) as 
threatened under the Endangered Species Act of 1973, as amended (Act). 
This affirmation of a previously published final rule implements the 
Federal protections provided by the Act for these species. We also 
affirm our designation of critical habitat for Umtanum desert buckwheat 
and revise our designation of critical habitat for White Bluffs 
bladderpod under the Act. In total, approximately 344 acres (139 
hectares) are designated as critical habitat for Umtanum desert 
buckwheat in Benton County, Washington, and

[[Page 76996]]

approximately 2,033 acres (823 hectares) are designated as critical 
habitat for White Bluffs bladderpod in Franklin County, Washington.

DATES: This rule is effective December 20, 2013. This document also 
confirms that the listing rule that published at 78 FR 23984 on April 
23, 2013, and the critical habitat rule for Umtanum desert buckwheat 
and White Bluffs bladderpod that published at 78 FR 24008 on April 23, 
2013 (which is amended by this rule), are effective December 20, 2013.

ADDRESSES: This affirmation and revision, comments and materials 
received on the proposed rule, as well as some of the supporting 
documentation used in preparing this document, are available on the 
Internet at http://www.regulations.gov and at http://www.fws.gov/wafwo/HanfordPlants. All of the documents are also available for public 
inspection, by appointment, during normal business hours, at U.S. Fish 
and Wildlife Service, Washington Fish and Wildlife Office, 510 Desmond 
Drive SE., Suite 102, Lacey, WA 98503-1263; (360) 753-9440 (telephone); 
(360) 753-9008 (facsimile).
    The coordinates or plot points or both from which the maps are 
generated are included in the administrative record for this critical 
habitat designation and are available at http://www.fws.gov/wafwo/Hanford_Plants/FLFCH.html, at http://www.regulations.gov at Docket No. 
FWS-R1-ES-2013-0012, and at the Washington Fish and Wildlife Office 
(see FOR FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Ken S. Berg, Manager, U.S. Fish and 
Wildlife Service, Washington Fish and Wildlife Office, 510 Desmond 
Drive, Suite 102, Lacey, Washington 98503-1263, by telephone (360) 753-
9440, or by facsimile (360) 753-9405. Persons who use a 
telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at (800) 877-8339.

SUPPLEMENTARY INFORMATION:

Background

    This document is an affirmation of the listing of Eriogonum codium 
(Umtanum desert buckwheat) and Physaria douglasii subsp. tuplashensis 
(White Bluffs bladderpod) as threatened species and a final revised 
rule to designate critical habitat for Umtanum desert buckwheat and 
White Bluffs bladderpod under the Endangered Species Act of 1973, as 
amended (16 U.S.C. 1531 et seq.) (ESA or Act). Under the Act, a species 
warrants protection through listing if it is currently, or is likely to 
become, in danger of extinction throughout all or a significant portion 
of its range and any species that is determined to be an endangered or 
threatened species requires that critical habitat be designated, to the 
maximum extent prudent and determinable. Listing a species as an 
endangered or threatened species and designations and revisions of 
critical habitat can be completed only by issuing a rule.
    We previously published final rules to list Umtanum desert 
buckwheat and White Bluffs bladderpod (78 FR 23984) and designate 
critical habitat for both species (78 FR 24008) on April 23, 2013, with 
effective dates of May 23, 2013. However, on May 23, 2013, we delayed 
the effective dates of the final rules until November 22, 2013 (78 FR 
30772). On November 22, 2013, we further delayed the effective dates of 
the final rules until December 20, 2013 (78 FR 70001). The delay in 
effective dates was necessary to allow us time to follow proper 
procedure in accordance with 16 U.S.C. 1533(b)(5).
    In fulfilling that responsibility, we decided to accept and 
consider additional public comments on the rules. Accordingly, on May 
23, 2013, we also announced the reopening of the public comment period 
(78 FR 30839) on the May 15, 2012, proposed listing and designation of 
critical habitat for the Umtanum desert buckwheat and White Bluffs 
bladderpod (77 FR 28704). Newspaper notices inviting general public 
comment were published in the Tri-City Herald and Walla Walla Union in 
Washington during the reopening of the public comment period. On June 
28, 2013, we published a notice announcing two public hearings (78 FR 
38895). We held one public hearing in Kennewick, Washington, and one in 
Pasco, Washington, on July 11, 2013. The second comment period closed 
July 22, 2013. Since the reopening of the comment periods, we have 
taken the necessary actions required by 16 U.S.C. 1533(b)(5).

Purpose of This Document

    This document describes the public comments received during the 
second public comment period, which opened May 23, 2013, and closed 
July 22, 2013 (78 FR 30839), and affirms our previous listing 
determination (78 FR 23984). This document also affirms the April 23, 
2013, final critical habitat rule for the Umtanum desert buckwheat and 
revises the April 23, 2013, final critical habitat rule for the White 
Bluffs bladderpod (78 FR 24008). A revised map of our critical habitat 
designation for White Bluffs bladderpod based on new information that 
we received during the second public comment period and additional 
analysis of the areas previously identified as critical habitat is 
included in this rule.
    In this document, we will discuss only those topics directly 
relevant to comments received during the second public comment period 
and the information that we used to update the map of the White Bluffs 
bladderpod critical habitat designation. Additional information on both 
species may be found in the Candidate Notice of Review, which was 
published October 26, 2011 (76 FR 66370); the proposed rule, which was 
published May 15, 2012 (77 FR 28704); and the final rule, which was 
published April 23, 2013 (78 FR 23984). Additional information 
regarding the critical habitat designations for Umtanum desert 
buckwheat and White Bluffs bladderpod may be found in the April 23, 
2013, final critical habitat rule (78 FR 24008).

Listing Affirmation

    Under the Act, we can determine that a species is an endangered or 
threatened species based on any of five factors: (A) Destruction, 
modification, or curtailment of its habitat or range; (B) Overuse; (C) 
Disease or predation; (D) Inadequate existing regulations; or (E) Other 
natural or manmade factors. We have determined that Umtanum desert 
buckwheat is threatened by wildfire, nonnative plants, seed predation, 
small population size, limited geographic range, and low recruitment. 
White Bluffs bladderpod is threatened by wildfire, excess groundwater-
induced landslides and slope failure, harm by recreational activities 
and off-road vehicle use, nonnative plants, small population size, and 
limited geographic range.

Peer Review and Public Comment

    We previously sought comments from independent specialists to 
ensure that our listing determination is based on scientifically sound 
data, assumptions, and analyses. We invited these peer reviewers to 
comment on our May 15, 2012, proposed rule (77 FR 28704), and we 
summarized their comments in the final rule published April 23, 2013 
(78 FR 23984). We also considered all comments and information received 
during the first public comment period and summarized these comments in 
the final rule published April 23, 2013 (78 FR 23984). We sought 
additional comments and information during the second public comment 
period and have summarized these comments in this final rule.

[[Page 76997]]

Summary of Comments and Recommendations

    During the reopened comment period for the proposed rule, we 
received 8 comment letters directly addressing the proposed listing of 
Umtanum desert buckwheat with threatened status and 87 comment letters 
directly addressing the proposed listing of White Bluffs bladderpod 
with threatened status. We also received a comment letter from one 
Federal agency regarding the proposed listing of White Bluffs 
bladderpod. We did not receive any State agency comments. During the 
July 11, 2013, public hearings, 40 individuals or organizations made 
comments on the proposed rule. We received 2 comments in support of the 
rule, 67 comments in opposition to the rule, and several comments that 
did not express support or opposition to the rule. All substantive 
information provided during the comment periods is addressed below.
Federal Agency Comments
    (1) Comment: The Bureau of Reclamation in addition to several other 
commenters questioned whether irrigation is the primary cause of 
landslides that have been identified as a primary threat to the White 
Bluffs bladderpod. The Bureau of Reclamation believes uncertainty 
remains concerning whether irrigation is a primary threat.
    Our Response: As we previously discussed under Factor A in the 
final listing rule (78 FR 23984), our review of the literature from 
1972 to 2010 indicates that the science is clear regarding the role of 
excess groundwater in facilitating landslides and slumping in the White 
Bluffs area. No evidence was found in the literature to dispute or cast 
doubt on this relationship. Due to the siting of the Hanford nuclear 
complex, this area has undergone extensive hydrogeologic and seismic 
research, which supports our conclusion.
    (2) Comment: The Bureau of Reclamation requested that efforts to 
minimize groundwater contribution to the White Bluffs be considered in 
an appropriate historical and technical context with respect to threats 
from the current projects related to irrigation facilities, operations, 
and practices.
    Our Response: We considered all appropriate historical and 
technical data in our analysis of threats to the White Bluffs 
bladderpod in the final rule (78 FR 23984). Our response to comment 
(3), below, contains an accounting of the efforts of the Bureau of 
Reclamation to reduce the threat to the subspecies.
    (3) Comment: The Bureau of Reclamation and two irrigation districts 
stated that the proposed rule does not adequately acknowledge the 
extensive system of surface and subsurface drains in the irrigated 
lands near the White Bluffs that have been installed to capture, 
manage, and redirect excess runoff water to reduce the threat of 
landslides caused by seepage. The Bureau of Reclamation recommended 
that this information on the existing drainage system and practices 
should be fully considered and incorporated in the final rule.
    Our Response: We agree. Although we were aware of and considered 
this information, we did not acknowledge these actions in the proposed 
rule. These actions represent a sizeable contribution to water 
conservation and a potential reduction of groundwater-related threats 
to the White Bluffs bladderpod. The Bureau of Reclamation has installed 
a system of surface and buried drains designed to intercept excess 
irrigation water and seepage from irrigation conveyances. This system 
is known to provide some underground drainage and movement of 
subsurface waters that could potentially reduce the amount of water 
that impacts soils and land near the bluffs. Although estimates are 
available for the quantities of water recovered and reused, the amount 
of total groundwater budget affected remains unknown. Thus, we are 
unable to quantify the potential contribution this system may have 
towards reducing the threat of excess groundwater-induced slides to the 
White Bluffs bladderpod. We do not have sufficient information at this 
time to conclude that this system sufficiently removes the threat (see 
our discussion of groundwater-related threats under Summary of Factors: 
White Bluffs bladderpod in the final rule).
Public Comments
    (4) Comment: A couple of commenters believed our proposed 
determination to list both species as threatened was not consistent 
with the differences in their assigned Listing Priority Number (i.e., 
LPN 2 for the Umtanum desert buckwheat and LPN 9 for the White Bluffs 
bladderpod).
    Our Response: A Listing Priority Number (LPN) is a species risk 
assessment that estimates the imminence and magnitude of the threats to 
a species. The LPN is used to assist in the identification of species 
that should receive priority review for listing. The determination of 
threatened or endangered status is based on the best scientific and 
commercial data available at the time we conduct our status review. 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.'' In our final rule we found that the Umtanum 
desert buckwheat and the White Bluffs bladderpod are each likely to 
become endangered throughout all or a significant portion of its range 
within the foreseeable future but are not in imminent danger of 
extinction. We have, therefore, determined that listing as threatened 
is appropriate for both species.
    (5) Comment: One commenter provided us a recent unpublished genetic 
analysis titled ``Sequence Variation Among Physaria douglasii 
Isolates,'' authored by C.L. Anderson, Ph.D., with the University of 
Idaho Laboratory for Evolutionary, Ecological and Conservation 
Genetics. A number of commenters asserted that this new analysis 
establishes that the White Bluffs bladderpod is not a distinct 
subspecies of Physaria douglasii.
    Our Response: The genetic analysis (Anderson 2013) used DNA 
sequence data to investigate the taxonomic status of the White Bluffs 
bladderpod and concluded that the findings presented in the report did 
not indicate that Physaria douglasii ssp. tuplashensis is a distinct 
subspecies. However, the report states that these results cannot be 
considered definitive or final due to sampling constraints (Anderson 
2013, p. 9). The Service had the genetic analysis report (Anderson 
2013) externally peer reviewed given its potential significance to our 
final listing determination. We requested peer review from five subject 
and related field experts and received comments from all five 
reviewers. Their unanimous, independent conclusion was that this 
analysis was insufficient to warrant a change to the current taxonomic 
status of White Bluffs bladderpod. All five peer reviewers indicated 
that this study was inconclusive as to the taxonomic status of 
tuplashensis. Peer reviewers stated that the genetic markers selected 
for this study were insufficient for determining differences between 
closely related taxa in the genus Physaria. In addition, all peer 
reviewers stated that too few samples were collected to adequately 
characterize genetic diversity and compare tuplashensis and douglasii 
under the study design. We find the peer reviewers' critiques of 
Anderson 2013 to be well-reasoned. Anderson examined only three samples 
of White Bluffs bladderpod, and he acknowledged that there were ``too 
few samples for statistical validity.''

[[Page 76998]]

Therefore, the Service, consistent with the currently accepted 
taxonomic status, affirms its previous determination that the White 
Bluffs bladderpod is a distinct subspecies.
    (6) Comment: Several commenters stated that our current knowledge 
of the distribution and habitat preferences of White Bluffs bladderpod 
is uncertain, such that the Service does not have enough information to 
assert that this subspecies' range is restricted to a single narrow 
location less than 11 miles in length. Some of these commenters further 
stated that there is no updated or more current information to indicate 
how much of the population still remains on private lands.
    Our Response: We disagree that our knowledge of the overall 
distribution (range) and habitat preferences of the White Bluffs 
bladderpod is uncertain. In our final rule (78 FR 23984), we provided a 
detailed description of the habitat preferences of the subspecies, 
which includes specific geology, soil type, and commonly associated 
plant species. The areas where these habitat conditions occur were 
comprehensively surveyed in 1997 by Beck and Caplow (Beck and Caplow 
1997) after the discovery of the subspecies in 1994, and we are 
confident in our defined range for the White Bluffs bladderpod.
    We acknowledge some uncertainty regarding whether the White Bluffs 
bladderpod still occurs on all of the sites identified as occupied in 
surveys by Beck and Caplow in 1997. On Federal lands, occupancy on a 
number of sites has been reconfirmed and these sites are part of an 
ongoing annual monitoring effort for White Bluffs bladderpod on the 
Hanford Reach National Monument. However, we agree that no survey data 
since 1997 are available for private lands. We acknowledge that 
uncertainty regarding current occupancy is likely highest on sites in 
the southern part of the White Bluffs bladderpod distribution due to 
the current threats and condition of the habitat at and adjacent to 
these sites. Additionally, we have identified several examples of 
previously occupied sites in this part of the distribution that became 
unoccupied in the time period between the surveys conducted in 1995 and 
1997 by Beck and Caplow (Beck and Caplow 1995, 1997).
    Due to this uncertainty, we reassessed all of the sites that were 
determined to be occupied in 1997 and determined that some of these 
sites on Federal land, and all of the sites on State and private lands, 
were likely no longer occupied at the time of listing. However, this 
conclusion does not alter the threatened status for White Bluffs 
bladderpod in our final listing determination. This revised 
determination regarding occupancy is also reflected in our revised 
final critical habitat designation for White Bluffs bladderpod.
    (7) Comment: Several commenters said our proposed rule failed to 
include discussion of other causes of bluff instability (e.g., 
burrowing by birds or mammals, location in a seismically active part of 
the State, presence of natural springs). Other commenters suggested 
that slope instability is not a threat to White Bluffs bladderpod since 
the subspecies has historically survived natural slope failure or 
landslides prior to the introduction of irrigation to the area, and 
given that the White Bluffs are the boundary to the Columbia River.
    Our Response: In our review of literature associated with White 
Bluffs bladderpod, we did not find any documented loss or disturbance 
of individual plants or habitat attributable to burrowing by wildlife. 
The literature clearly indicates that the White Bluffs were slumping 
prior to the advent of irrigation. Some larger landslides occurred 
during or immediately following Ice Age floods, but most slumping of 
the White Bluffs has been documented in the last 30-40 years and the 
rate of slumping and quantity of groundwater seeping from the cliffs 
has increased significantly since the arrival of irrigation to the 
area. White Bluffs bladderpod plants have not been observed in areas 
that have undergone contemporary landslides, whether moderate or 
severe. In very large events of rotational slumping or landslides, 
parts of the original surface horizon may remain somewhat undisturbed 
on the crest of the slumped block, preserving White Bluffs bladderpod 
plants, at least for the short term. See our discussion of this threat 
in the final rule under Summary of Factors: White Bluffs bladderpod (78 
FR 23984).
    (8) Comment: A couple of commenters believe the threat of off-road 
vehicle (ORV) use has been eliminated due to the prohibition of ORVs on 
the Hanford Reach National Monument and given that much of the area is 
fenced off. Another commenter asked whether the Service has 
documentation of the level of ORV use on private lands to support the 
statement in our proposed rule that this activity occurs more commonly 
on private lands.
    Our Response: Steps have been taken by the Hanford Reach National 
Monument to minimize ORV use and close historical points of access. 
Although some boundary fencing is in place, access by ORVs from outside 
Federal lands remains possible from adjoining non-Federal ownerships. 
Our review of June 2013 aerial photos reveals numerous roads and trails 
connecting Federal and non-Federal lands. We presume these non-Federal 
lands are used more frequently by ORVs than on the monument because ORV 
use is currently prohibited on the monument.
    (9) Comment: A couple of commenters inferred the Service had 
identified the use of pesticides and herbicides on agricultural lands 
as a threat to the White Bluffs bladderpod and were concerned about 
potential restrictions.
    Our Response: In our final listing rule, we determined, based on 
the best available information, that the agricultural use of pesticides 
and herbicides on lands adjacent to White Bluffs bladderpod is not a 
threat (see Summary of Factors: White Bluffs bladderpod in our final 
rule (78 FR 23984)). We have no information that would change that 
conclusion.
    (10) Comment: One commenter asserted that the Washington State 
Growth Management Act's (GMA) designation of geologically hazardous 
areas as ``critical areas'' would provide adequate protection for the 
White Bluffs bladderpod without the intervention of the Endangered 
Species Act. Given the nature of the bluffs, the commenter suggested 
that it is highly unlikely that any engineering analysis would enable 
the construction of structures on the bluff. The commenter further 
asserted that Franklin County's Critical Area Ordinance (CAO), which 
relies upon Federal or State-listed endangered, threatened, and 
sensitive species in designating ``Fish and Wildlife Conservation 
Areas'' under the CAO, will provide protections for the White Bluffs 
bladderpod above and beyond the Endangered Species Act because these 
protections apply directly to private property. The commenter further 
stated that, under the CAO, once a ``Fish and Wildlife Conservation 
Area'' has been identified on private property, the landowner is 
required to prepare and submit a habitat management and mitigation 
plan.
    Our Response: Although some protections may be provided to the 
White Bluffs bladderpod by Washington's GMA and Franklin County's CAO, 
this protection is not adequate to conserve the subspecies or 
facilitate recovery because these regulations do not address all the 
threats identified for this subspecies, such as excess groundwater-
induced landslides, ORV use, and introduction of nonnative species. The 
Service considered the effect of the Washington State GMA and

[[Page 76999]]

Franklin County's CAO in preparation of the final rule and determined 
that these regulations do not supply protection sufficient to preclude 
the listing of the White Bluffs bladderpod.
    (11) Comment: Several commenters asserted that including the 
effects of climate change as a significant threat to the White Bluffs 
bladderpod was inappropriate given that the subspecies has been exposed 
to and persisted through a range of climatic conditions over thousands 
of years.
    Our Response: Predicting future climate scenarios for specific 
locations on the landscape remains uncertain. In our final rule we 
acknowledged this uncertainty and identified climate change as a 
potential threat based on the available information and determined that 
more thorough investigations are needed to determine the degree to 
which climate change may be affecting the subspecies. In our search of 
the relevant literature, we were not able to document the occupancy of 
White Bluffs bladderpod during previous climatic periods.

Determination

    We have carefully assessed the comments and additional information 
provided during the second public comment period. We affirm our finding 
that Umtanum desert buckwheat and White Bluffs bladderpod are each 
likely to become endangered throughout all or a significant portion of 
their ranges within the foreseeable future, based on the immediacy and 
scope of the threats described in the final rule published on April 23, 
2013 (78 FR 23984), and, therefore, meet the definition of threatened 
species under the Act. Consequently, on the basis of the best available 
scientific and commercial information, we are affirming the listing of 
Umtanum desert buckwheat and White Bluffs bladderpod as threatened in 
accordance with sections 3(20) and 4(a)(1) of the Act.

Critical Habitat Affirmation and Revision

Economic Analysis

    Section 4(b)(2) of the Act states that the Secretary shall 
designate critical habitat on the basis of the best available 
scientific and commercial data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
critical habitat areas we are designating in this rule constitute our 
current best assessment of the areas that meet the definition of 
critical habitat for Umtanum desert buckwheat and White Bluffs 
bladderpod. Here we are designating a total of approximately 2,377 
acres (ac) (962 hectares (ha)) of Federal land as critical habitat for 
the two species: 2,033 ac (823 ha) for the bladderpod and 344 ac (139 
ha) for the buckwheat.
    In order to consider economic impacts, we prepared an analysis of 
the economic impacts of the critical habitat designations and related 
factors. We announced the availability of the draft economic analysis 
(DEA) in the May 15, 2012, proposed rule (77 FR 28704), allowing the 
public to provide comments on our analysis. We announced the 
availability of the final economic analysis in the April 23, 2013, 
final rule (78 FR 24008). We received no comments in response to the 
DEA during the first public comment period. We sought additional 
comments and information during the second public comment period on the 
DEA and have summarized these comments in this document.

Peer Review and Public Comment

    We previously sought comments from independent specialists to 
ensure that our critical habitat designation is based on scientifically 
sound data, assumptions, and analyses. We invited these peer reviewers 
to comment on our critical habitat proposal, and we summarized their 
comments in the final rule of April 23, 2013 (78 FR 24008). We also 
considered all comments and information received during the first 
public comment period and summarized these comments in that final rule. 
We sought additional comments and information during the second public 
comment period on the critical habitat proposal and have summarized 
these comments in this document. We received no substantive comments on 
the Umtanum desert buckwheat critical habitat designation and, 
therefore, reaffirm the designation we initially made on April 23, 2013 
(78 FR 24008). The final designation for Umtanum desert buckwheat is 
entirely on Federal lands (344 ac (139 ha)).

Summary of Comments and Recommendations

    We received public comments on the DEA and proposed critical 
habitat designation during the second public comment period, which was 
open from May 23, 2013, to July 22, 2013 (78 FR 30839), and during the 
two public hearings held on July 11, 2013 (78 FR 38895). We received 9 
comment letters directly addressing the proposed critical habitat for 
the Umtanum desert buckwheat and 57 comment letters directly addressing 
the proposed critical habitat for the White Bluffs bladderpod. We did 
not receive any State or Federal agency comments. During the July 22, 
2013, public hearings, 40 individuals or organizations made comments on 
the proposed listing and critical habitat rules. We received 2 comments 
in support of the rule, 54 comments in opposition to the critical 
habitat rule, and several comments that did not express support or 
opposition to the rule. All substantive information provided during the 
comment periods has either been incorporated directly into this final 
determination or is addressed below.
Public Comments
    (12) Comment: Several commenters believed some lands included in 
the proposed designation for the White Bluffs bladderpod were not 
habitat for the species or did not contain the primary constituent 
elements (PCEs). In addition, two irrigation districts commented that 
critical habitat for the White Bluffs bladderpod should not be 
designated on any Federal rights-of-way used for irrigation because 
they do not have the PCEs due to past, current, and future types of 
operation and maintenance activities that occur in these rights-of-way.
    Our Response: Section 4 of the ESA requires that we designate 
critical habitat to the maximum extent prudent and determinable, based 
on the basis of the best scientific data available. Under the first 
prong of the ESA's definition of critical habitat, areas within the 
geographical area occupied by the species at the time it is listed are 
included in a critical habitat designation if they contain physical or 
biological features: (1) Which are essential to the conservation of the 
species, and (2) which may require special management considerations or 
protection. For these areas, critical habitat designations identify, to 
the extent known using the best scientific data available, those 
physical or biological features that are essential to the conservation 
of the species (such as space, food, cover, and protected habitat). In 
identifying those physical and biological features within an area, we 
focus on the principal PCEs, such as geological formation, specific 
soil types, vegetation type, and plant pollinators that are essential 
to the conservation of the species (50 CFR 424.12(b)). Under the second 
prong of the ESA's definition of critical habitat, we can designate 
critical habitat in areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination by the Secretary 
that such areas are essential for the conservation of the species.

[[Page 77000]]

    Based on more recent information collected or received during the 
reopened comment period, we have reanalyzed the proposed designation. 
Our reanalysis determined that some areas proposed as occupied by the 
species in our previous final critical habitat rule could not be 
confirmed to be occupied and did not contain the physical or biological 
features essential to the conservation of the White Bluffs bladderpod. 
Because these areas do not meet the definition of critical habitat, 
they are not included in our final revised critical habitat 
designation. For more information about how we determined which areas 
to include in this revised critical habitat designation, please see our 
discussion below in the Revisions to Critical Habitat for White Bluffs 
Bladderpod).
    We also agree that the Federal irrigation rights-of-way do not 
contain the physical or biological features essential to the 
conservation of the White Bluffs bladderpod critical habitat and we 
have removed the rights-of-way, when feasible, from the final 
designation. For those rights-of-way that we were unable to remove from 
the map due to practical mapping issues, we do not consider them 
critical habitat. As stated in the April 23, 2013, final critical 
habitat rule, critical habitat does not include irrigated private lands 
or manmade structures (such as buildings, pavement, or other 
structures) and the land on which they are located (see Criteria Used 
to Identify Critical Habitat and the regulatory text in our final 
critical habitat rule (78 FR 24008)). Therefore, access roads, 
irrigation canals, and their related infrastructure are not considered 
critical habitat.
    (13) Comment: A couple of commenters questioned whether the Service 
properly evaluated the need to designate unoccupied critical habitat 
for the White Bluffs bladderpod. One commenter believed the Service 
should reexamine its assumptions about pollinators to determine if it 
is appropriate to designate unoccupied critical habitat based on so 
little knowledge about their interaction with the White Bluffs 
bladderpod.
    Our Response: Under the second prong of the Act's definition of 
critical, we can designate critical habitat in areas outside the 
geographical area occupied by the species at the time it is listed, 
upon a determination by the Secretary that such areas are essential for 
the conservation of the species. As stated in our April 23, 2013, final 
rule (78 FR 24008), our evaluation of the best available science 
indicates that White Bluffs bladderpod is insect-pollinated. To ensure 
this species' reproduction, it is necessary to maintain sufficient 
habitat to sustain an active pollinator community. As such, we consider 
the designated unoccupied critical habitat essential for the 
conservation of the species because the areas support the habitat 
requirements of the pollinator species required by White Bluffs 
bladderpod.
    (14) Comment: One commenter asserted that private lands were not 
necessary to conserve the White Bluffs bladderpod given the extensive 
Federal lands proposed in the designation. One commenter asked whether 
the Service evaluated the benefits of excluding private property from 
the designation for White Bluffs bladderpod. Another commenter stated 
that a private land owner would consider establishing a conservation 
easement for the White Bluffs bladderpod if the lands were excluded 
from the final critical habitat designation.
    Our Response: We have reassessed our critical habitat designation 
for the White Bluffs bladderpod based on new information received 
during the public comment period and the revised designation does not 
include private lands. Because this revised critical habitat 
designation no longer includes private lands, comments regarding 
exclusion of private lands from the designation are no longer relevant; 
however, a detailed explanation of how we determined which areas to 
include in this revised designation is provided below in the Revisions 
to Critical Habitat for White Bluffs Bladderpod.
Comments on Economic Analysis
    (15) Comment: A number of commenters stated that more current land 
and crop valuation data should have been used in our economic analysis 
and, therefore, asserted that the economic impacts of the designation 
were underestimated.
    Our Response: The agricultural information we used in our DEA was 
from the 2009 USDA Census of Agriculture (Census). We must use the best 
available scientific and commercial information available. The 2009 
Census, which is based on data collected during 2007, remains the best 
source of information available. The Census database, where we obtained 
this information, is recognized as a national data standard by the 
USDA. While we understand economic conditions may have changed, the new 
(2012) Census data have not been released for use by agencies or the 
public.
    (16) Comment: Two irrigation districts stated that the economic 
analysis failed to evaluate the economic impacts of designating 
critical habitat for the White Bluffs bladderpod on Federal rights-of-
way used for irrigation. By designating critical habitat on these 
rights-of-way, the potential economic impact would expand to the 
operation of irrigation and drainage facilities.
    Our Response: As we previously discussed under comment (12), we are 
not aware of critical habitat for the White Bluffs bladderpod existing 
within Federal rights-of-way. As stated in the April 23, 2013, final 
rule, critical habitat does not include irrigated private lands or 
manmade structures (such as buildings, pavement, or other structures) 
and the land on which they are located (78 FR 24008). We have further 
refined our maps to remove these areas when feasible. Our best 
available information indicates that these rights-of-way are linear in 
nature, disturbed, and generally support nonnative vegetation. As a 
result, they do not contain the physical and biological features 
essential to the conservation of the species. Additionally, they are 
not considered unoccupied critical habitat essential for the 
conservation of the species because they do not provide native shrub-
steppe habitat for pollinators of the White Bluffs bladderpod. These 
areas, therefore, do meet the definition of critical habitat and are 
not included in the designation. See the Revisions to Critical Habitat 
for White Bluffs Bladderpod section for more information about how we 
determined what areas to designate as critical habitat.
    Section 7 consultation would be required for Bureau of Reclamation 
irrigation-related activities that may affect White bluffs bladderpod 
or its critical habitat. When consulting under section 7(a)(2) of the 
Act, independent analyses are conducted for jeopardy to the species and 
adverse modification of critical habitat. Section 7 consultation could 
identify certain conservation actions needed to ensure that any action 
authorized, funded, or carried out by the Bureau of Reclamation is not 
likely to jeopardize the continued existence of White bluffs 
bladderpod. Conservation actions triggered by the designation of 
critical habitat alone would be incremental to the listing 
determination to ensure the Federal action is not likely to result in 
the destruction or adverse modification of critical habitat.
    For Umtanum desert buckwheat and White Bluffs bladderpod, any 
adverse modification determination would in most cases result in a 
jeopardy determination for the same Federal action because of the 
species' restricted range, and the geographical/ecological relationship 
between areas proposed as

[[Page 77001]]

occupied and unoccupied critical habitat. As such, project 
modifications that may be needed to minimize impacts to the species 
would also minimize impacts to the associated critical habitat. 
Accordingly, although theoretically possible, it is unlikely that an 
analysis would identify a difference between measures needed to avoid 
the destruction or adverse modification of critical habitat from 
measures needed to avoid jeopardizing the species. As a result, based 
on the best available scientific and commercial information, all 
economic impacts related to conservation efforts to avoid adverse 
modification or destruction of critical habitat would be, for the most 
part, indistinguishable from those related to the listing of these 
species. Any incremental costs would be limited to additional 
administrative costs to Federal agencies associated with critical 
habitat section 7 consultations.
    (17) Comment: One commenter stated that the economic analysis did 
not incorporate the economic impacts of possible restrictions and 
constraints related to the use of pesticides and herbicides or the 
conduct of other activities on lands adjacent to the critical habitat 
designation for the White Bluffs bladderpod.
    Our Response: As stated in our April 23, 2013, final listing rule 
(78 FR 23984), the current use of pesticides and herbicides has not 
been determined to be a threat to the species. Therefore, we do not 
anticipate restrictions on the use of pesticides and herbicides. 
Modifications to other activities on land adjacent to the critical 
habitat designation may be needed to minimize impacts to critical 
habitat; however, these modifications would also be needed to minimize 
impacts to the species. Accordingly, it is unlikely that an analysis 
would identify a difference between measures needed to avoid the 
destruction or adverse modification of critical habitat from measures 
needed to avoid jeopardizing the species. As a result, economic impacts 
related to conservation efforts to avoid adverse modification or 
destruction of critical habitat would be, for the most part, 
indistinguishable from those related to the listing of these species. 
Any incremental costs would be limited to additional administrative 
costs to Federal agencies associated with critical habitat section 7 
consultations.

New Information Considered

    No new information was collected or received for the Umtanum desert 
buckwheat during the reopened comment period. Therefore, our 
designation of critical habitat for Umtanum desert buckwheat remains 
unchanged from the April 23, 2013, final rule (78 FR 24008).
    For the White Bluffs bladderpod, more recent imagery from the 
National Agricultural Imagery Program (NAIP) became available for the 
area encompassing the range of the White Bluffs bladderpod on June 30, 
2013. We also received public comment from a number of landowners 
indicating that habitat or PCEs for the White Bluffs bladderpod were 
not present on their land. We conducted site visits to assess presence 
of habitat for the White Bluffs bladderpod on and adjacent to private 
parcels at the permission of the landowner. In addition, we used the 
2013 Franklin County parcel data in place of the previously used 2009 
Major Public Lands data for more precise ownership data. We found that 
the new, more precise parcel data did result in some changes to the 
original distribution of ownerships within our April 23, 2013, final 
designation. Additionally, we found that we made an error in 
calculating our acreages reflected in Table 4 of the April 23, 2013, 
final critical habitat designation (78 FR 24008); we erroneously 
included 33 ac (13 ha) in the table that were not within the mapped 
critical habitat designation. The correct total acreage that was 
previously designated as critical habitat in our map for the White 
Bluffs bladderpod is 2,828 ac (1,144 ha). The correct distribution of 
land ownerships depicted on that map is: Federal lands, 2,447 ac (990 
ha); State lands, 66 ac (27 ha), and private lands, 315 ac (127 ha).

Revisions to Critical Habitat for White Bluffs Bladderpod

    In response to public comment and new information, we have 
reevaluated our designation of critical habitat for the White Bluffs 
bladderpod. With these considerations in mind, and using new imagery 
(NAIP 2013), digitized survey information (USFWS 2011), and new limited 
site visit information that has become available to us since the 
publication of the April 23, 2013, final critical habitat rule, we have 
carefully reassessed all areas within the designation to determine: (1) 
Whether areas identified in the final rule as occupied at the time of 
listing were in fact occupied by the species, and if so, whether such 
areas contain the physical and biological features essential to the 
conservation of the species that may require special management 
considerations or protection; and (2) whether areas identified as 
unoccupied at the time of listing are truly essential for the 
conservation of the species. Our regulations (50 CFR 424.12(e)) specify 
that the Service will designate critical habitat outside the 
geographical area presently occupied by a species only when a 
designation limited to its present range would be inadequate to ensure 
the conservation of the species. Therefore, we give highest priority in 
our designation to those areas currently occupied by the species, and 
only designate critical habitat in areas that are currently unoccupied 
if the designation of those occupied areas is deemed inadequate to 
provide for the conservation and recovery of the species.
    Our reassessment of the critical habitat for the White Bluffs 
bladderpod across all land ownerships has led us to conclude, as 
documented in our record, that some areas identified as critical 
habitat in the April 23, 2013, designation do not meet the definition 
of critical habitat. Upon closer inspection, based on new information 
in our record, we concluded that some areas designated as occupied 
habitat do not contain the physical and biological features essential 
to the conservation of White Bluffs bladderpod. The new information 
shows that these areas have been cleared of native vegetation; have 
extensive invasive, nonnative vegetation; or have experienced recent 
landslides and associated erosion; and, therefore, the primary 
constituent elements of critical habitat are no longer present in these 
areas. Also, based upon our consideration of new information, and 
reanalysis of existing survey data, we concluded that some areas we 
initially believed to be occupied at the time of listing were not 
likely occupied. Using the new information in our record, we determined 
that a number of survey sites identified as occupied habitat patches in 
1997 were not likely to be occupied at the time of listing based on our 
assessment of the current habitat conditions at these sites and the 
surrounding areas. These areas do not meet the definition of critical 
habitat and have, therefore, been removed from the designation.
    In addition, as directed by our implementing regulations at 50 CFR 
424.12(e), we carefully reconsidered whether all unoccupied areas that 
we initially considered to be essential in our proposed rule are in 
fact integral to maintaining a sufficient community of pollinators to 
provide the essential life-history functions for the White Bluffs 
bladderpod. Upon reexamination, based on new information in our record, 
we conclude that some areas identified as unoccupied critical habitat 
in the previous designation were not pollinator habitat (e.g., gravel 
mining,

[[Page 77002]]

cleared of native vegetation, extensive nonnative vegetation) or of 
such poor condition (fragmented, low quality, and/or disconnected) that 
their ability to maintain a sufficient community of pollinators of the 
White Bluffs bladderpod is compromised, and we have determined that 
these areas are not essential for the conservation of the species. None 
of these areas were included in this final revised designation.
    Within the remaining unoccupied critical habitat in our April 23, 
2013, designation, the largest contiguous area of high-quality native 
habitat available for pollinators is present on the Federal lands that 
are adjacent to or nearby habitat that we have determined is currently 
occupied by the White Bluffs bladderpod. We have concluded that these 
Federal lands within the areas designated as unoccupied critical 
habitat, combined with the areas of occupied critical habitat, which 
also support pollinators, comprise sufficient habitat to sustain a 
community of pollinators to provide for the essential life-history 
functions for the White Bluffs bladderpod. Thus, we have included only 
the unoccupied Federal lands in this revised final designation of 
critical habitat for the White Bluffs bladderpod, based upon the 
Secretary's determination that such lands are essential for the 
conservation of the species.
    As a result of this revision to the White Bluffs bladderpod 
critical habitat designation, as discussed above, the following 
acreages have been determined not to meet the definition of critical 
habitat: Federal lands 414 ac (167 ha); State lands 66 ac (27 ha); and 
private lands 315 ac (127 ha). The revised total acreage designated as 
critical habitat is 2,033 ac (823 ha), all of which are on Federal 
land.

Final Critical Habitat Designations

    In our final critical habitat rule of April 23, 2013 (78 FR 24008), 
we provided background information on the designation of critical 
habitat and the criteria we used to identify critical habitat for 
Umtanum desert buckwheat and White Bluffs bladderpod. We also 
identified the PCEs of the physical and biological features essential 
to the conservation of each species in our final rule (78 FR 24008). We 
received no new information or comments during the second open comment 
period to suggest that our PCEs for either of these species should be 
modified from what was described in our final rule. We reaffirm these 
PCEs as determined in the final rule (78 FR 24008). Additionally, in 
our April 23, 2013, final critical habitat rule, we assessed whether 
the areas designated as critical habitat may require special management 
considerations and protections. We also reaffirm our assessment of 
special management considerations and protections provided in the final 
rule. We have not changed the critical habitat designation for Umtanum 
desert buckwheat identified in the final critical habitat rule (78 FR 
24008), and, therefore, we are reaffirming our previous designation for 
Umtanum desert buckwheat.
    We are designating one unit each as critical habitat for the 
Umtanum desert buckwheat and White Bluffs bladderpod populations. The 
revised designation for White Bluffs bladderpod is reflected in the map 
included in the rule portion of this document. The approximate sizes 
and ownerships of the White Bluffs bladderpod critical habitat unit are 
identified in Table 1.

                                            Table 1--Designated Critical Habitat for White Bluffs Bladderpod
                   [Area estimates reflect all land within critical habitat unit boundaries; values are rounded to the nearest tenth]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      Occupied         Unoccupied
                                                                                  critical habitat  critical habitat     Percent by      Total hectares
                   Unit name                             Land ownership              in hectares       in hectares        ownership          (acres)
                                                                                       (acres)           (acres)
--------------------------------------------------------------------------------------------------------------------------------------------------------
White Bluffs, WA..............................  Federal.........................      46.5 (115.0)   776.3 (1,918.4)               100   822.9 (2,033.4)
                                                                                 -----------------------------------------------------------------------
    Unit Total................................  ................................      46.5 (115.0)   776.3 (1,918.4)               100   822.9 (2,033.4)
--------------------------------------------------------------------------------------------------------------------------------------------------------

Required Determinations

    Required determinations were made in the final listing rule 
published on April 23, 2013 (78 FR 23984); we affirm those previous 
determinations in this document. We also made required determinations 
in the final critical habitat rule that was published on April 23, 2013 
(78 FR 24008); we reaffirm these previous determinations as applicable 
to this final rule and provide additional explanation, if necessary, 
below.

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

    In our final critical habitat rule of April 23, 2013 (78 FR 24008), 
we certified and provided our rationale for certification that the 
critical habitat designation for White Bluffs bladderpod, which at the 
time included private lands in the designation, will not have a 
significant economic impact on a substantial number of small entities 
and that, as explained below, an analysis is not relevant to Umtanum 
desert buckwheat, because this species occurs exclusively on Federal 
land. Our reassessment of the final critical habitat designation for 
the White Bluffs bladderpod has resulted in reductions to the total 
area designated as critical habitat and only Federal lands are included 
in the designation.
    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (5 U.S.C 801 et seq.), and following recent court decisions, 
Federal agencies are required only to evaluate the potential 
incremental impacts of rulemaking on those entities directly regulated 
by the rulemaking itself, and not the potential impacts to indirectly 
affected entities. The regulatory mechanism through which critical 
habitat protections are realized is section 7 of the Act, which 
requires Federal agencies, in consultation with the Service, to ensure 
that any action authorized, funded, or carried by the Agency is not 
likely to adversely modify critical habitat. Therefore, only Federal 
action agencies are directly subject to the specific regulatory 
requirement (avoiding destruction and adverse modification) imposed by 
critical habitat designation. Under these circumstances, it is our 
position that only Federal action agencies will be directly regulated 
by this designation. Therefore, because Federal agencies are not small 
entities, the Service may certify that the critical habitat rule will 
not have a significant economic impact on a substantial number of small 
entities.
    In this affirmation of the final rule to designate critical habitat 
for Umtanum desert buckwheat and revision to the final rule to 
designate critical habitat for

[[Page 77003]]

the White Bluffs bladderpod, the designation of critical habitat is 
entirely limited to Federal lands. Therefore, we believe that, based on 
our interpretation of directly regulated entities under the RFA and 
relevant case law, this designation of critical habitat will directly 
regulate only Federal agencies, which are not by definition small 
business entities. Based on the above reasoning and currently available 
information, we conclude that this rule will not result in a 
significant economic impact on a substantial number of small entities. 
Therefore, we are certifying that the designation of critical habitat 
for the Umtanum desert buckwheat and White Bluffs bladderpod will not 
have a significant economic impact on a substantial number of small 
entities, and a regulatory flexibility analysis is not required.

Takings--Executive Order 12630

    In our final critical habitat rule published on April 23, 2013 (78 
FR 24008), we concluded that the designation of critical habitat for 
Umtanum desert buckwheat and White Bluffs bladderpod does not pose a 
significant takings implication for lands within or affected by the 
designation. We did not receive any public comments on the draft 
economic analysis during the first comment period on our critical 
habitat proposal (77 FR 28704). Comments on our draft economic analysis 
received during the second comment period are addressed in this final 
rule. We have considered these comments and reaffirm our conclusion 
that the designation of critical habitat for Umtanum desert buckwheat 
and White Bluffs bladderpod does not pose a significant takings 
implication for lands within or affected by the designation.

References Cited

    A complete list of all references cited in this final rule is 
available on the Internet at http://www.regulations.gov, or upon 
request from the Manager, Washington Fish and Wildlife Office (see FOR 
FURTHER INFORMATION CONTACT section).

Author(s)

    The primary authors of this final rule are the staff members of the 
Washington Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    Accordingly, we hereby further amend part 17, subchapter B of 
chapter I, title 50 of the Code of Federal Regulations, as amended on 
April 23, 2013, at 78 FR 24008, 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. In Sec.  17.96, amend paragraph (a) by revising paragraph (5) and 
the map in the entry for ``Physaria douglasii subsp. tuplashensis 
(White Bluffs bladderpod)'' under Family Brassicaceae to read as 
follows:


Sec.  17.96  Critical habitat--plants.

    (a) Flowering plants.
* * * * *

Family Brassicaceae: Physaria douglasii subsp. tuplashensis (White 
Bluffs bladderpod)

* * * * *
    (5) Note: Map of critical habitat for Physaria douglasii subsp. 
tuplashensis (White Bluffs bladderpod) follows:
BILLING CODE 4310-55-P

[[Page 77004]]

[GRAPHIC] [TIFF OMITTED] TR20DE13.005


[[Page 77005]]


* * * * *

    Dated: December 12, 2013.
Rachel Jacobsen,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-30164 Filed 12-19-13; 8:45 am]
BILLING CODE 4310-55-C