[Federal Register Volume 79, Number 29 (Wednesday, February 12, 2014)]
[Proposed Rules]
[Pages 8402-8413]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-03134]


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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2010-0071; 4500030114]
RIN 1018-AX16


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Lepidium papilliferum

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Revised proposed rule; reopening of comment period.

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

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are amending 
our proposal to designate critical habitat for Lepidium papilliferum 
(slickspot peppergrass) under the Endangered Species Act (Act). In 
total, approximately 24,808 hectares (61,301 acres) in Ada, Payette, 
Elmore, and

[[Page 8403]]

Owyhee Counties in Idaho fall within the boundaries of the revised 
proposed critical habitat designation. If we finalize this rule as 
proposed, the effect of this regulation will be to designate critical 
habitat for Lepidium papilliferum under the Act.

DATES: We will accept comments received or postmarked on or before 
March 14, 2014. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES below) must be received by 11:59 p.m. 
Eastern Time on the closing date. Any comments that we receive after 
the closing date may not be considered in the final determination.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R1-ES-2010-0071, 
which is the docket number for this rulemaking. You may submit a 
comment by clicking on ``Comment Now!.''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R1-ES-2010-0071; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Public Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: Acting State Supervisor, U.S. Fish and 
Wildlife Service, Idaho Fish and Wildlife Office, 1387 S. Vinnell Way, 
Room 368, Boise, ID 83709; telephone 208-378-5243; facsimile 208-378-
5262. If you use a telecommunications device for the deaf (TDD), call 
the Federal Information Relay Service (FIRS) at 1-800-877-8339.

SUPPLEMENTARY INFORMATION: 

Public Comments

    We intend that any final action resulting from this revised 
proposed rule will be based on the best scientific and commercial data 
available and be as accurate and as effective as possible. Therefore, 
we request comments or information from other concerned government 
agencies, the scientific community, industry, or any other interested 
party concerning this proposed rule. We particularly seek comments 
concerning any new information pertaining to critical habitat for this 
species that has become available since the May 10, 2011, publication 
of our proposed rule to designate critical habitat for Lepidium 
papilliferum (76 FR 27184). Comments previously submitted on the 
proposed critical habitat designation need not be resubmitted; they 
have already been incorporated into the public record and will be fully 
considered in the final decision.
    We particularly seek comments concerning the following:
    (1) New scientific information regarding critical habitat for this 
species, including the addition of recently identified areas that meet 
our definition of critical habitat for the species that has become 
available since the May 10, 2011, publication of our proposed rule to 
designate critical habitat for Lepidium papilliferum (76 FR 27184).
    (2) Whether the benefits of excluding any particular area from 
critical habitat outweigh the benefits of including that area in 
critical habitat under section 4(b)(2) of the Act, after considering 
both the potential impacts and benefits of the proposed critical 
habitat designation. Under section 4(b)(2) of the Act, we may exclude 
an area from critical habitat if we determine that the benefits of such 
exclusion outweigh the benefits of including that particular area as 
critical habitat, unless failure to designate that specific area as 
critical habitat will result in the extinction of the species. We 
therefore request specific information on:
     The benefits of including recently identified areas in the 
final designation and supporting rationale,
     The benefits of excluding any recently identified areas 
from the final designation and supporting rationale, and
     Whether any specific exclusions may result in the 
extinction of the species and why.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. Comments and materials 
we receive, as well as some of the supporting documentation we used in 
preparing this proposed rule, will be available for public inspection 
on http://www.regulations.gov; all of our supporting documentation is 
available by appointment, during normal business hours, at the U.S. 
Fish and Wildlife Service, Idaho Fish and Wildlife Office (see FOR 
FURTHER INFORMATION CONTACT).
    We will post your entire comment--including your personal 
identifying information--on http://www.regulations.gov. You may request 
at the top of your document that we withhold personal information such 
as your street address, phone number, or email address from public 
review; however, we cannot guarantee that we will be able to do so.

Background and Previous Federal Actions

    In this document, we intend to discuss only those topics directly 
relevant to updating the 2011 proposed critical habitat rule for 
Lepidium papilliferum. For more information on previous Federal actions 
concerning Lepidium papilliferum, refer to the proposed designation of 
critical habitat published in the Federal Register on May 10, 2011 (76 
FR 27184) (2011 proposed critical habitat rule).
    On October 8, 2009, we listed Lepidium papilliferum as a threatened 
species throughout its range under the Act (74 FR 52014). On November 
16, 2009, Idaho Governor C. L. ``Butch'' Otter, the Idaho Office of 
Species Conservation, Theodore Hoffman, Scott Nicholson, and L.G. 
Davison & Sons, Inc., filed a complaint in the U.S. District Court for 
the District of Columbia challenging the 2009 final listing rule under 
the Administrative Procedure Act and the Endangered Species Act. 
Subsequently, the issue was transferred to the U.S. District Court for 
the District Court of Idaho (Court), and the parties involved consented 
to proceed before a Magistrate Judge. On August 8, 2012, the Court 
vacated the final rule listing Lepidium papilliferum as a threatened 
species under the Act, with directions that the case be remanded to the 
Service for further consideration consistent with the Court's opinion 
(Otter v. Salazar, Case No. 1:11-cv-00358-CWD (D. Idaho)).
    During the period of the 2009 litigation, we published the 2011 
proposed critical habitat rule; the comment period closed on July 11, 
2011. On June 1, 2011, the Service received a request from Idaho's 
Governor C.L. ``Butch'' Otter requesting a 60-day extension to the 
comment period. On July 7, 2011, we published a notice extending the 
initial comment period through September 9, 2011 (76 FR 39807). We also 
requested comments on the proposed critical habitat designation and 
associated draft economic analysis during a second comment period that 
opened October 26, 2011, and closed on December 12, 2011 (76 FR 66250).
    Rulemaking on the proposed critical habitat was suspended following 
the Court's ruling vacating the listing. However, elsewhere in today's 
issue of the Federal Register, we have published a document announcing 
our reconsideration of the listing of

[[Page 8404]]

Lepidium papilliferum relative to the issues remanded by the Court; 
rulemaking on the listing has, therefore, been reopened. Accordingly, 
we are reopening the rulemaking on our proposed rule to designate 
critical habitat for the species (76 FR 27184; May 10, 2011).

Changes From Proposed Rule

    Since the publication of our May 10, 2011, proposed rule, we have 
received information regarding some additional areas that meet our 
definition of critical habitat for Lepidium papilliferum. To ensure 
that we are considering the best scientific data available in our final 
decision, in this document we present new scientific information that 
has become available to us since our 2011 proposed critical habitat 
rule, describe those additional areas that we believe meet the 
definition of critical habitat for the species, revise the proposed 
rule to include this new information, and seek public comment on the 
additional areas we are proposing as critical habitat. Should the 
listing of L. papilliferum become final, in accordance with the 
requirements of the Act, we will proceed with the promulgation of a 
final rule designating critical habitat for the species.

Correction to the Proposed Critical Habitat for Lepidium papilliferum

    In the 2011 proposed critical habitat rule, the Service proposed to 
designate 23,374 ha (57,756 ac) as critical habitat for Lepidium 
papilliferum in four units in Ada, Elmore, Payette, and Owyhee Counties 
in Idaho. However, this amount was inadvertently overestimated due to a 
slight calculation error that resulted from an overlapping of polygons 
within the geographic information systems (GIS). This overlap of data 
resulted in the accidental inclusion of 291 ha (716 ac) of additional 
area in the proposal. The actual area of critical habitat in the 2011 
proposed critical habitat rule should have been reported as 23,083 ha 
(57,040 ac).

New Information Related to the Proposed Critical Habitat for Lepidium 
papilliferum

    As described in our 2011 proposed critical habitat rule, we based 
our criteria for the identification of critical habitat for Lepidium 
papilliferum on the element occurrence (EO) rankings of the Idaho 
Natural Heritage Program (INHP). We included all L. papilliferum 
element occurrences (EOs) with rankings of C or higher in the proposed 
critical habitat. We considered areas with these rankings to provide 
the physical and biological features essential to the conservation of 
the species, as they are the EOs most likely to provide for viable 
populations of L. papilliferum that will contribute to the conservation 
and recovery of the species. Each EO provides one or more of the PCEs 
as described in the proposed rule (note there are no L. papilliferum 
EOs ranked higher than B at present). We did not include sites ranked D 
or lower in the critical habitat designation due to the poor condition 
of the habitat around D-ranked sites, the low viability of the small L. 
papilliferum populations remaining at such sites, and the fragmented 
nature of the surrounding landscape.
    Recent survey efforts have located a few additional sites occupied 
by Lepidium papilliferum within the range of the species. According to 
Idaho Fish and Wildlife Information System (IFWIS; formerly Idaho 
Natural Heritage Program (INHP)) data, eight new EOs have been located. 
In addition to these new EOs, some existing EOs have been expanded and 
in some cases merged with other EOs to meet the definition of an EO (a 
grouping of occupied slickspots that occur within 1 kilometer (km) (0.6 
miles (mi)) of each other).
    Based on the rankings of the new EOs, we have determined that seven 
of the eight new EOs, all of which are occupied by Lepidium 
papilliferum, meet the definition of critical habitat and contain the 
physical and biological features essential to conserve the species. 
These include one BC-ranked EO (EO 118), one BD-ranked EO (EO 114), 
three C-ranked EOs (EO 112, 115, 116), and two CD-ranked EOs (EO 113, 
117) (IFWIS data from January 2013). The eighth EO was ranked D, and, 
therefore, did not meet our definition of critical habitat. The 
reopened comment period will provide all interested parties with an 
additional opportunity to submit written comments on this revised 
proposed rule, specifically regarding the new proposed EOs that have 
been included based on the best scientific data that has become 
available since the 2011 proposal (May 10, 2011; 76 FR 27184).

Revised Critical Habitat Units

    Based on this new information, we have updated the previous 
proposed critical habitat maps, and hereby revise our May 10, 2011, 
proposal to designate critical habitat for Lepidium papilliferum (76 FR 
27184) to include 1,725 ha (4,261 ac) of additional area that meets our 
definition of critical habitat, as described above. This amendment 
results in a proposal to designate a total of 24,808 ha (61,301 ac) of 
critical habitat for Lepidium papilliferum in four units in Payette 
(Unit 1), Ada (Unit 2), Elmore (Unit 3), and Owyhee (Unit 4) Counties 
in Idaho. We are proposing no new units. The additional areas proposed 
for critical habitat include 1,588 ha (3,926 ac) of U.S. Bureau of Land 
Management (BLM) lands; 23 ha (58 ac) of Bureau of Reclamation (BOR) 
lands; 35 ha (87 ac) of State lands; and 76 ha (188 ac) of private 
lands (areas do not add precisely to 1,725 ha (4,261 ac) due to 
rounding).
    Units that have been revised to include additional area since the 
2011 proposed critical habitat rule include: Unit 1--addition of EO 
114; Unit 2, Subunit 2a--addition of EO 118, Subunit 2b--the expansion 
of EOs 18, 24, and 25; and Unit 3, Subunit 3a--expansion of EO 30 and 
addition of EO 112, Subunit 3b--expansion of EOs 51 and 62, and 
addition of EOs 113, 115, 116, and 117. See table 1 for the revised 
area totals of proposed critical habitat by units and subunits, and 
land ownership. (The GIS calculation error in the proposed rule, noted 
above, has been corrected in the totals within table 1).

                Table 1--Revised Proposed Critical Habitat Units and Area (Hectares (Acres)) by Land Ownership for Lepidium papilliferum
                                        [Area estimates reflect all land within critical habitat unit boundaries]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                          Municipal
                          Unit or subunit                                Federal           State         (county and        Private           Total
                                                                                                            city)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 1-- Payette County Total......................................             273                0                0               16              289
                                                                               (675)  ...............  ...............             (40)            (715)
Unit 2--Ada County Total...........................................           5,984            1,182              414              674            8,254

[[Page 8405]]

 
                                                                            (14,789)          (2,921)          (1,023)          (1,663)         (20,396)
2a.................................................................             660                0              338              291            1,289
                                                                             (1,632)  ...............            (835)            (719)          (3,186)
2b.................................................................           3,802              114                0              115            4,031
                                                                             (9,396)            (281)  ...............            (283)          (9,960)
2c.................................................................             512               98               76              235              921
                                                                             (1,265)            (241)            (188)            (580)          (2,274)
2d.................................................................           1,010              970                0               33            2,013
                                                                             (2,496)          (2,399)  ...............             (81)          (4,977)
Unit 3--Elmore County Total........................................           3,933               97                0              419            4,449
                                                                             (9,725)            (239)  ...............          (1,035)         (10,999)
3a.................................................................             760                0                0              241            1,001
                                                                             (1,878)  ...............  ...............            (596)          (2,474)
3b.................................................................           1,044               97                0               49            1,190
                                                                             (2,579)            (239)  ...............            (120)          (2,938)
3c.................................................................           2,132                0                0              129            2,261
                                                                             (5,268)  ...............  ...............            (319)          (5,587)
Unit 4--Owyhee County Total........................................          11,213              600                0                0           11,813
                                                                            (27,709)          (1,482)  ...............  ...............         (29,191)
All Units..........................................................          21,403            1,879              414            1,109           24,808
                                                                            (52,898)          (4,642)          (1,023)          (2,738)         (61,301)
--------------------------------------------------------------------------------------------------------------------------------------------------------

    As in the May 10, 2011, proposed rule (76 FR 27184), all lands 
being proposed for designation as critical habitat are currently 
occupied by Lepidium papilliferum and contain features essential to 
support the life-history needs of the species that may require special 
management considerations or protection. See the Proposed Critical 
Habitat Designation section of the proposed rule for details (76 FR 
27184; May 10, 2011).
    In the 2009 final listing rule ((74 FR 52014; October 8, 2009), we 
described the total area of known EOs (that is, area covered by the EOs 
themselves) as being approximately 6,500 ha (16,000 ac). This area 
reflects only the immediate known locations of individuals of the 
plant, as recognized in the IFWIS database, and is a small portion of 
the overall geographic range of the species. In the May 10, 2011, 
proposed critical habitat rule (76 FR 27184), we described in detail 
the criteria used to identify critical habitat, including a 250-m 
radius around each EO to provide sufficient area for pollinator support 
and to minimize disturbance to the plant's habitat. This, along with 
the additional area resulting from inclusion of the recently discovered 
EOs, make up the total area now proposed for designation as critical 
habitat of 24,808 ha (61,301 ac).
    In the rule portion of this document, we present new maps of the 
critical habitat units that have changed since the May 10, 2011, 
proposed rule (76 FR 27184). Maps illustrating the changes from the 
previously proposed unit boundaries are available on the Internet at 
http://www.regulations.gov at Docket No. FWS-R1-ES-2010-0071 or at 
http://www.fws.gov/idaho. As noted above, the units that reflect the 
additional areas determined to meet our definition of critical habitat 
are Unit 1; Unit 2 (Subunits 2a and 2b); and Unit 3 (Subunits 3a and 
3b).
    The coordinates or plot points or both from which the maps are 
generated are included in the administrative record for this proposed 
revised critical habitat designation and are available at http://www.fws.gov/idaho, at http://www.regulations.gov at Docket No. FWS-R1-
ES-2010-0071, and at the Idaho Fish and Wildlife Office (see FOR 
FURTHER INFORMATION CONTACT). Any additional tools or supporting 
information that we may develop for this critical habitat designation 
will also be available at the Fish and Wildlife Service Web site and 
Field Office set out above, and may also be included at http://www.regulations.gov.
    The reopened comment period will provide all interested parties 
with an additional opportunity to submit written comments on this 
revised proposed rule, specifically regarding the new proposed EOs that 
have been included based on the best scientific data that has become 
available since the 2011 proposed critical habitat rule.

Required Determinations

    The draft economic analysis of the proposed designation concluded 
that critical habitat designation for Lepidium papilliferum is not 
likely to affect economic activity or conservation measures being 
implemented within the proposed critical habitat area (IEC 2011, p. ES-
5). Because all areas proposed for critical habitat were occupied by 
the species, and most of the area proposed is on BLM lands, the 
estimated incremental impacts of critical habitat designation were 
limited to additional administrative costs of section 7 consultations 
associated with considering the potential for adverse modification of 
critical habitat (IEC 2011, p. ES-5). Activities on private lands were 
determined to be unlikely to be subject to section 7 consultation (IEC 
2011, p. ES-6).
    Based on these earlier determinations, we believe that the addition 
of the relatively small amount of occupied area proposed here is 
unlikely to significantly alter the results of the existing economic 
analysis of the designation, and we conclude that the incremental 
impacts of the revised proposed designation of critical habitat for L. 
papilliferum will similarly be limited to the additional administrative 
costs of section 7 consultations associated with considering the 
potential for adverse modification of critical habitat. Therefore, in 
this document, we affirm the required

[[Page 8406]]

determinations made in the May 10, 2011, proposed rule (76 FR 27184).

References Cited

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

Authors

    The primary authors of this revised proposed rulemaking are the 
staff members of the Idaho Fish and Wildlife Office, U.S. Fish and 
Wildlife Service (see ADDRESSES).

Authority

    The authority for this action is the Endangered Species Act of 
1977, as amended (16 U.S.C. 1531 et seq.).

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 further amend part 17, subchapter B of 
chapter I, title 50 of the Code of Federal Regulations, as proposed to 
be amended on May 10, 2011, at 76 FR 27184, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

    Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless 
otherwise noted.

0
2. Amend Sec.  17.96(a) by revising paragraphs (5), (6), (7), (8), and 
(9) in the entry proposed for ``Lepidium papilliferum (Slickspot 
Peppergrass)'' at 76 FR 27184 to read as follows:


Sec.  17.96  Critical habitat--plants.

    (a) Flowering plants.

BILLING CODE 4310-55-P
* * * * *

Family Brassicaceae: Lepidium papilliferum (Slickspot Peppergrass)
* * * * *

[[Page 8407]]

    (5) Index map of critical habitat units for Lepidium papilliferum 
(slickspot peppergrass) follows:
[GRAPHIC] [TIFF OMITTED] TP12FE14.003


[[Page 8408]]


    (6) Unit 1: Payette County, Idaho. Map of Unit 1 follows:
    [GRAPHIC] [TIFF OMITTED] TP12FE14.004
    

[[Page 8409]]


    (7) Unit 2: Ada County, Idaho.
    (i) Map of Unit 2, Subunit a, follows:
    [GRAPHIC] [TIFF OMITTED] TP12FE14.005
    

[[Page 8410]]


    (ii) Map of Unit 2, Subunit b, follows:
    [GRAPHIC] [TIFF OMITTED] TP12FE14.006
    
BILLING CODE 4310-55-C


[[Page 8411]]


    (iii) Map of Unit 2, Subunit c, follows:
* * * * *
    (iv) Map of Unit 2, Subunit d, follows:
* * * * *
BILLING CODE 4310-55-P

    (8) Unit 3: Elmore County, Idaho.
    (i) Map of Unit 3, Subunit a, follows:
    [GRAPHIC] [TIFF OMITTED] TP12FE14.007
    

[[Page 8412]]


    (ii) Map of Unit 3, Subunit b, follows:
    [GRAPHIC] [TIFF OMITTED] TP12FE14.008
    

[[Page 8413]]


    (iii) Map of Unit 3, Subunit c, follows:
* * * * *
    (9) Unit 4: Owyhee County, Idaho. Map of Unit 4 follows:
* * * * *

    Dated: February 5, 2014.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-03134 Filed 2-11-14; 8:45 am]
BILLING CODE 4310-55-C